Robe v. Ager, No. 10096

CourtSupreme Court of South Dakota
Writing for the CourtHOMEYER; HANSON; HANSON
Citation129 N.W.2d 47,80 S.D. 597
PartiesViolet Bear ROBE, Plaintiff and Appellant, v. Yvonne AGER, formerly Yvonne Breckenridge, and Marshall Young, Special Administrator of the Estate of Mary Kube, Deceased, Defendants and Respondents.
Docket NumberNo. 10096
Decision Date19 June 1964

Page 47

129 N.W.2d 47
80 S.D. 597
Violet Bear ROBE, Plaintiff and Appellant,
v.
Yvonne AGER, formerly Yvonne Breckenridge, and Marshall
Young, Special Administrator of the Estate of Mary
Kube, Deceased, Defendants and Respondents.
No. 10096.
Supreme Court of South Dakota.
June 19, 1964.
Rehearing Denied July 28, 1964.

Page 48

[80 S.D. 599] Robert LaFleur, Graves & Lehnert, Rapid City, for plaintiff and appellant.

Whiting, Lynn, Freiberg & Shultz, Rapid City, for defendants and respondents.

HOMEYER, Judge.

This action was brought to recover damages for personal injuries sustained in a one-car accident which occurred in the early evening of February 11, 1961, about 43 miles west of Batesland, South Dakota.

The trial court granted a motion for directed verdict in favor of both defendants at the close of plaintiff's case in chief upon the ground her evidence failed to establish a case for jury consideration.

The complaint alleged at the time of the accident plaintiff-appellant and all other occupants except Mary Kube, now deceased, were passengers in the automobile and students of Plainview Academy at Redfield, South Dakota; that Mary Kube was a school teacher and dean of girls at such academy and at the time of the accident had the care, custody, control and supervision of the students and automobile which was being driven by the defendant, Yvonne Ager; that the defendants, Yvonne Ager and Mary Kube, or either of them, were negligent in the operation and control of the automobile causing the same to upset.

Defendants answered separately alleging contributory negligence more than slight, assumption of risk, and that plaintiff [80 S.D. 600] was a guest. In addition defendant Kube in her answer moved to dismiss the complaint for failure to state a claim on which relief could be granted.

Construing the evidence and the deducible inferences in favor of plaintiff as we must it appears that plaintiff, defendant Ager, and three other girls, all teen-agers, were attending Plainview Academy, a Seventh Day Adventist co-educational high school at Redfield and, with the exception of Valerie Nelson, daughter of the superintendent and business manager, lived in the girls' dormitory at the school. They all belonged to a girls' club and one of the club projects was to refurbish parts of the dormitory with additional furniture. To assist them the girls had written congregations throughout the state soliciting funds. In response a member of the congregation at Batesland telephoned Miss Kube informing her a banquet was being planned for the following Sunday to raise funds and expressed a desire for some of the girls to be present to provide musical entertainment. Rev. Nelson, the superintendent, was present during the telephone conversation and volunteered use of his automobile to transport the group. He also provided his credit card to pay for car expenses and was later reimbursed by the school.

Miss Kube selected the girls to go on the trip, all of whom were musicians, except plaintiff, who was invited to go to give a short talk and because it also afforded her an opportunity to visit her parents who lived in that area. A sixth girl accompanied the group to Pierre where she was left to visit her parents.

The group departed from Redfield on Friday morning and arrived at Batesland that evening. Miss Kube drove the car. In the course of the trip the idea of going to Hot Springs to swim in Evans plunge was mentioned without any decision being made. The girls stayed in private homes. Saturday morning they attended Sabbath school and church services. In the afternoon they participated in a youth program at which plaintiff spoke on the advantages of a christian education and the other girls played musical instruments. On Saturday

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evening it was concluded to drive to Hot Springs to swim. The girls had no swimming suits, but expected to rent some at the plunge. Hot Springs is about 80 miles west of Batesland.

[80 S.D. 601] Defendant Ager was seventeen years of age, had a driver's license, and before the accident had driven about 750 miles. It was contemplated that she might do a portion of the driving on the trip to Batesland if Miss Kube became tired. She drove continuously from Batesland to the time of the accident with the consent and approval of Miss Kube. There were no remonstrances on her manner of driving. The testimony of witnesses fixed her speed at and immediately preceding the accident from 60 to 90 miles per hour. A logical inference is one of the tires blew out and she lost control of the car causing it to upset in the south ditch. As a result plaintiff sustained serious personal injuries.

The evidence is sufficient to support a finding that the defendant Ager was negligent in driving and the defendant Kube was negligent in supervising the manner in which the automobile was being driven. Plaintiff did not plead nor does she contend that either the driver or Miss Kube was guilty of wilful and wanton negligence. No agency relationship between the defendants Ager and Kube, or the school, is alleged.

The plaintiff advances three theories in asserting error on granting the motion for directed verdict. They are: (1) plaintiff had passenger status on the trip from Redfield to Batesland and the excursion to Hot Springs was incidental thereto; (2) Miss Kube was a salaried employee of the academy, the superintendent furnished the car and was reimbursed for travel expense by the academy, and thus there was compensation for the trip to Hot Springs; and (3) the guest statute does not apply because defendant Kube owed a duty to plaintiff separate and apart from the operation of the motor vehicle; that she violated that duty and was negligent and such negligence was the proximate cause of plaintiff's injuries.

We approach this matter by assuming without deciding plaintiff had a passenger status from Redfield to Batesland. Plaintiff argues on this basis and defendants do not seriously contend otherwise. The question we must determine is her status at the time of the accident. The evidence is without dispute that the swimming excursion was not known to the superintendent and was not contemplated when the group left Redfield; that an inconclusive[80 S.D. 602] reference thereto occurred enroute to Batesland and again at Batesland, but no final decision was made until after the Saturday evening meal. By that time what plaintiff was scheduled to do at Batesland had been accomplished, if it be considered a benefit to herself, her companions, or to her school. Whatever status plaintiff may have had on the trip to Batesland, it does not necessarily follow that she retained the same status on the excursion to Hot Springs when the accident happened. See Scotvold v. Scotvold, 68 S.D. 53, 298 N.W. 266.

In the recent case of Peterson v. Snell, S.D., 127 N.W.2d 142, we reiterated the rule to become a passenger for reward (1) the driver must receive some benefit from the transportation, either alone or in common with the rider, and (2) the benefit must be sufficiently real, tangible and substantial to serve as the inducing cause of the transportation and to completely overshadow considerations of mere hospitality growing out of friendship or relationship. In Snell we rejected the contention transportation provided by a teen-age member of a musical trio to another member in preparing a musical number at the request of their pastor to be given at a church program constituted carriage for compensation.

The sole purpose of the trip from Batesland to Hot Springs was to go swimming. No benefit was conferred upon the driver Ager, or upon the chaperoning dean, Miss Kube, other than mutual recreational enjoyment. The rule is too well established in this jurisdiction to require citation of authority that to remove a case from the

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guest statute a definite tangible benefit to the operator must be shown as the inducing and motivating influence for furnishing the transportation. Recreational enjoyment in which all the parties share does not meet this test. See Mitzel v. Huck, 78 S.D. 543, 105 N.W.2d 378.

Consequently, if the trip to Hot Springs was an independent journey for a social purpose and had no relationship to the reason for the trip to Batesland, it must be determined plaintiff possessed a guest status when injured. We find no controlling precedent in this state and slight precedent from other jurisdictions. In Tennyson v. Kern, 76 S.D. 136, 74 N.W.2d 316, there was an [80 S.D. 603] express agreement by which infant passengers agreed to share expenses on a trip from Cottonwood to Rapid City for a high school banquet. Before commencing on this trip defendant proceeded in the opposite direction to get a suit from a dry cleaner at Philip. Plaintiff accompanied him on this trip and an accident occurred in which he was injured. We held there was no rational basis for an inference that the...

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9 practice notes
  • Nehring v. Russell, No. 4831
    • United States
    • United States State Supreme Court of Wyoming
    • July 7, 1978
    ...meaning of the statute for the duration of that trip. Matlock v. Hooge, Tex.Civ.App.1963, 365 S.W.2d 386, reh. den.; Robe v. Ager, 1964, 80 S.D. 597, 129 N.W.2d 47, reh. den. Assuming, as we must, the truth of the evidence presented in favor of appellee and drawing therefrom every fair and ......
  • Estate of Trobaugh v. Farmers Ins. Exch., No. 21032
    • United States
    • Supreme Court of South Dakota
    • March 21, 2001
    ...reckless and accident prone person to drive his vehicle." Stover v. Critchfield, 510 N.W.2d 681, 684 (SD 1994) (citing Robe v. Ager, 80 S.D. 597, 129 N.W.2d 47, 51 (S.D.1964); see also Arbach v. Gruba, 89 S.D. 322, 232 N.W.2d 842, 846 (S.D. 1975)). This doctrine applies to situations w......
  • Vilhauer v. HORSEMENS'SPORTS, INC., No. 20395.
    • United States
    • Supreme Court of South Dakota
    • July 21, 1999
    ...In other cases we have indicated to the contrary. Burrington v. Heine, 88 S.D. 65, 215 N.W.2d 119, 124 (S.D.1974); Robe v. Ager, 80 S.D. 597, 129 N.W.2d 47, 52 (S.D. 1964); Wakefield v. Singletary, 76 S.D. 417, 80 N.W.2d 84, 86 (S.D.1956). See also SDCL 34-45-17 ("willful or wanton neg......
  • Decker v. Deerfield Hutterian Brethren Inc., 1:16-CV-01008-CBK
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • March 10, 2017
    ...an incompetent, inexperienced and knowingly reckless and accident prone person to drive his vehicle." Id. (citing Robe v. Ager, 129 N.W.2d 47, 51 (S.D. 1964)). "This doctrine applies to situations where an owner negligently permits another to drive his vehicle." Id. "Per......
  • Request a trial to view additional results
9 cases
  • Nehring v. Russell, No. 4831
    • United States
    • United States State Supreme Court of Wyoming
    • July 7, 1978
    ...meaning of the statute for the duration of that trip. Matlock v. Hooge, Tex.Civ.App.1963, 365 S.W.2d 386, reh. den.; Robe v. Ager, 1964, 80 S.D. 597, 129 N.W.2d 47, reh. den. Assuming, as we must, the truth of the evidence presented in favor of appellee and drawing therefrom every fair and ......
  • Estate of Trobaugh v. Farmers Ins. Exch., No. 21032
    • United States
    • Supreme Court of South Dakota
    • March 21, 2001
    ...reckless and accident prone person to drive his vehicle." Stover v. Critchfield, 510 N.W.2d 681, 684 (SD 1994) (citing Robe v. Ager, 80 S.D. 597, 129 N.W.2d 47, 51 (S.D.1964); see also Arbach v. Gruba, 89 S.D. 322, 232 N.W.2d 842, 846 (S.D. 1975)). This doctrine applies to situations w......
  • Vilhauer v. HORSEMENS'SPORTS, INC., No. 20395.
    • United States
    • Supreme Court of South Dakota
    • July 21, 1999
    ...In other cases we have indicated to the contrary. Burrington v. Heine, 88 S.D. 65, 215 N.W.2d 119, 124 (S.D.1974); Robe v. Ager, 80 S.D. 597, 129 N.W.2d 47, 52 (S.D. 1964); Wakefield v. Singletary, 76 S.D. 417, 80 N.W.2d 84, 86 (S.D.1956). See also SDCL 34-45-17 ("willful or wanton neg......
  • Decker v. Deerfield Hutterian Brethren Inc., 1:16-CV-01008-CBK
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • March 10, 2017
    ...an incompetent, inexperienced and knowingly reckless and accident prone person to drive his vehicle." Id. (citing Robe v. Ager, 129 N.W.2d 47, 51 (S.D. 1964)). "This doctrine applies to situations where an owner negligently permits another to drive his vehicle." Id. "Per......
  • Request a trial to view additional results

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