Shoemaker v. Floor, 7150

• Decision Date: 17 April 1950
• Docket Number: No. 7150,7150
• Citation: 217 P.2d 382,117 Utah 434
• Parties: SHOEMAKER, v. FLOOR.
• Court: Utah Supreme Court

Page 382

217 P.2d 382

117 Utah 434

SHOEMAKER, v. FLOOR.

No. 7150.

Supreme Court of Utah.

April 17, 1950.

Rich & Strong, Salt Lake City, for appellant.

Pugsley, Hayes & Rampton, Salt Lake City, S. D. Huffaker, Salt Lake City, for respondent.

McDONOUGH, Justice.

Plaintiff below recovered a judgment for personal injuries sustained as a guest passenger in an automobile driven by defendant. The case involves the construction of the Idaho guest statute, Sec. 48-901 of 1940 Supp. to Idaho C.A. 1932, the accident having occurred in Idaho. The cited statute precludes a guest from recovering from the owner or operator of a vehicle, for personal injuries 'unless such accident shall have been intentional on the part of said owner or operator or caused by his * * * intoxication or his reckless disregard of the rights of others.' Plaintiff alleged: 'That the injuries to plaintiff as herein set out were caused by the negligent acts and omissions of defendant, in this, * * * that on the said 23rd day of December, 1946, defendant asked plaintiff to ride with him from Salt Lake City, Utah, to Pocatello, Idaho, and return; that at about 1:30 A.M., while returning as aforesaid and in the nighttime and while the said highway was covered with ice, the said defendant against the protests of plaintiff, drove the said car between 75 and 80 miles per hour and while he was in an intoxicated condition, and with reckless disregard for the safety of plaintiff, and that as a result thereof, the said car left the highway as aforesaid.'

By answer defendant denied intoxication, recklessness, excessive speed, and blameworthiness. By affirmative defense he alleged that the accident was unavoidable on his part, and also that plaintiff assumed the risk of the journey. Jury trial was waived. The trial court found the issues in favor of plaintiff. We therefore summarize the plaintiff's testimony as to the circumstances leading up to the accident, and how it occurred.

Plaintiff testified that defendant had kept company with her for some time, and that he invited her to accompany him in his 1941 Cadillac coupe on December 22, 1946, from Salt Lake City, Utah, to Pocatello, Idaho. They left Salt Lake City about 6:30 P.M. There was a drizzling rain, and it was misty and foggy. Plaintiff, however, felt perfectly safe on the trip to Pocatello. Defendant averaged about 50 miles per hour going to Pocatello. Plaintiff slept part of the time. They arrived in Pocatello about midnight, and they remained there about 1 1/2 hours. During that period of time they were with a friend of defendant at the 'Burger Barn.' The proprietor served plaintiff and defendant each a cocktail which contained about 3 teaspoonfuls of whiskey. Defendant drank two additional cocktails containing the same quantity of liquor.

About 1:30 A.M., defendant suggested to plaintiff that it would be advisable for them to return because of the lateness of the hour. She noticed nothing about his conduct which suggested that he was under the influence of liquor. In fact, she thought he appeared normal. She did not feel uneasy about riding back to Salt Lake City. As she got into the car she noticed that it had stopped raining and had turned colder. As she 'settled back for the return trip' she remarked that the roads might be icy as the weather had turned cold. However, she was not conscious of any danger. It took about 10 minutes to reach the Pocatello city limits. At that point defendant said, 'We are going to make a record run.' He began to drive 50 to 55 miles per hour. He conversed with her and she noticed that his tongue seemed to become thick, and he seemed to 'talk in riddles.' She did not sense any danger until they reached a curve about 5 miles south of Pocatello. Defendant was driving about 55 miles per hour around a curve and the read end of the car started sliding. Plaintiff said, 'The roads are awfully slippery. Please go a little slower.' She described the place where the car skidded around a curve, as being 'about a mile above the straight road.'

Instead of reducing his speed, defendant seemed to drive faster, her remark appearing to anger or annoy him. Before she realized what was happening, as the speed of the car increased, along a straight section of highway, it started to slide on the road for quite a distance. Plaintiff said, 'Do something.' Defendant said, 'I can't control the car.' She was not conscious of the highway being slippery until the car began to slide. The car proceeded gradually to the left, and about a mile beyond the curve it left the highway, at which time it was going about 65 miles per hour. She stated that she thought the car skidded for some time from the one side to the other until it left the highway. The car did not tip over, but ran into the barrow pit along the side of the road, over rocks and abruptly came to a stop. When the car struck the barrow pit plaintiff was thrown about in the car, and finally thrown to the floor, in the process of which her head struck the instrument panel. She suffered severe back injuries and cuts on her legs and forehead.

Defendant succeeded in stopping another car traveling on the highway. He carried plaintiff about 40 feet to this car, and while doing so did not appear to be intoxicated. When she was later interrogated by her physician as to how the accident happened, she reported that something went wrong with the steering mechanism.

A deputy sheriff, who testified for defendant as to the condition of the highway, related that the highway is cement, 20 feet wide, with gravel shoulders 3 feet wide on each side, and that it is about level and straight for about 3/4 of a mile to the north of the point where the car left the highway. He observed that the car was stopped at a point 75 to 100 feet from the place where it left the pavement, and he noticed tire marks for a distance of 50 feet veering gradually from the right side of the road to the left immediately preceding the point where the car left the highway. The officer's testimony was to the effect that he detected no odor of alcohol on the breath of defendant.

Defendant attacks the findings of fact, conclusions of law and judgment by several assignments of error. His principal contentions may be discussed under three separate headings: (1) That the evidence is insufficient to permit recovery under the Idaho guest statute. (2) That plaintiff assumed the risk of the journey. (3) That even if plaintiff had established a right of recovery, the court awarded excessive damages.

The Idaho guest statute as noted above, does not permit recovery for personal injuries by a gratuitous guest, except in the following situations: (a) The accident was intentional or the injuries wilfully inflicted. (b) The accident was caused by intoxication of defendant. (c) The accident was caused by the reckless disregard of the rights of others. Respondent concedes that the record would not support a finding (if one were made) of an intention on the part of defendant to cause the accident. The court made no finding to the effect that the accident was caused by intoxication of defendant.

The principal question, therefore, is whether or not the conduct of defendant as testified to by plaintiff, may be found by the trier of the facts, to constitute 'reckless disregard' of the safety of plaintiff within the meaning of the Idaho guest statute. Cases from several jurisdictions having similarly worded statutes are cited by appellant and respondent in support of their respective positions. However, since the court is applying the statutory law of Idaho, we must give to such law the construction placed thereon by the Supreme Court of that state if such construction has been made. Appellant's contention that 'reckless disregard of the rights of others' is equivalent to 'wilful misconduct' used in the Utah 'guest statute', sec. 57-11-7, U.C.A.1943, in our opinion has been rejected by the Idaho court.

In the case of Dawson v. Salt Lake Hardware Co., 64 Idaho 666, 136 P.2d 733, at page 738, in a special concurring opinion by Ailshie, Justice, which was concurred in by two other members of the court and hence became the opinion of the court on that particular phase of the case, the court criticizes an instruction of the trial court wherein the trial court stated in defining 'reckless disregard of the rights of others': "* * * The phrase or term 'reckless disregard' as used in the guest statute above quoted means an act destitute of heed or concern for consequences; especially foolishly heedless of danger, headlong, rash; an act of such conscious indifference to consequences that the jury is justified in saying that the driver wilfully injured his guests. Reckless disregard, wilful disregard and wanton disregard are, gentlemen, equivalent and synonymous terms."

The comment in the opinion of the Supreme Court is as follows:

'The italicized portion of the foregoing quotation from Instruction 15 appears to define the word 'reckless' as the equivalent of 'wilful', 'conscious', or 'wanton'. Of course the word 'reckless' conveys a different meaning when used in connection with some kinds of transactions as distinguished from others. The connection and circumstance under which it is used must give color and substance to its meaning. Where, however, the word is used with reference to the driver of a guest car, in relation to the guest himself in the car, it can hardly be said that 'reckless' includes wilful, intentional, or done on purpose. If so intended, there would have been no reason for retention of the word 'reckless'; nor would the legislature have deleted from the statute the words, 'gross negligence' by the 1939 amendment. (Sec. 48-901, I.C.A., as amended, '39 S.L. chap. 160, p. 286.) It is evident, to my mind, that the legislature by the use of the word 'reckless' following the word 'intentional' meant to hold the driver liable for a lesser degree of negligence than an 'intentiona...