Robe v. Ager

• Decision Date: 19 June 1964
• Docket Number: No. 10096,10096
• Court: South Dakota Supreme Court
• Parties: 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.

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.

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 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 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.

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 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 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 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 express agreement to share expenses from Cottonwood to Rapid City was broad enough to include a side trip to Philip.

In Burt v. Lochausen, Tex.Civ.App., 244 S.W.2d 915, 249 S.W.2d 194, plaintiff's decedent Burt lived 14 miles west of El Paso and had made application for some life insurance. He drove his own car to the agent's office, left the car, and went with defendant to a doctor's office for examination. The examination was completed by noon and they went to a nearby town for lunch and refreshments in defendant's car. Burt then permitted his wife to take his car home and defendant volunteered to drive Burt home later in the day. They spent the afternoon driving around and socializing and about 6:45 p. m. started for Burt's home with defendant driving and the accident happened. Burt was held to be a guest as a matter of law since the examination had been completed and any benefits accruing to the driver such as good will, possibility of selling additional insurance, encouraging other prospects, etc., were uncertain, remote and speculative and not sufficiently tangible to constitute compensation.

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