Tranby v. Brodock

• Decision Date: 21 April 1983
• Docket Number: No. 13958,13958
• Citation: 348 N.W.2d 458
• Parties: Al TRANBY and Steven Long, Plaintiffs and Appellants, v. Kevin BRODOCK, Defendant and Appellee. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 458

348 N.W.2d 458

Al TRANBY and Steven Long, Plaintiffs and Appellants, v. Kevin BRODOCK, Defendant and Appellee.

No. 13958.

Supreme Court of South Dakota.

Considered on Briefs April 21, 1983.

Decided April 25, 1984.

Rehearing Denied June 4, 1984.

N. Dean Nasser, Jr., P.C., Sioux Falls, for plaintiffs and appellants.

Francis M. Smith of Woods, Fuller, Shultz & Smith, P.C., Sioux Falls, for defendant and appellee.

EVANS, Circuit Judge.

This is a guest statute case. The trial court granted defendant's motion for summary judgment, having determined that there was no genuine issue as to any material facts and that plaintiff Long was a guest in defendant's vehicle and that defendant had not been guilty of willful and wanton misconduct in the operation of his vehicle. We affirm.

Our review of summary judgments are governed by the standards set forth in Wilson v. Great Northern Ry. Co., 83 S.D. 207, 157 N.W.2d 19 (1968).

The facts herein will be set forth in the light most favorable to plaintiff, the non-moving party. This automobile accident occurred on November 8th, 1975. Plaintiff Al Tranby is the stepfather of Steven Long. Plaintiff Long (hereinafter referred to as plaintiff) and defendant were juniors in high school and had been the best of friends for a long time. Each owned a car, and they regularly drove around together in one car. On previous occasions when one would drive the other at times would contribute gas or money for gas depending upon who had money on a given occasion. Defendant had called plaintiff during the afternoon of the day of the accident to see if he wanted to go riding around and picked up plaintiff about 6:30 that evening. They drove to a liquor store, where defendant contributed his share of money and plaintiff purchased two six packs of beer. (Plaintiff would normally be the one to purchase beer because he looked older and more mature than defendant and could usually obtain the beer.) They then drove out into the country, came back to Sioux Falls about 8:30 and picked up a friend. They stopped at another liquor store where plaintiff purchased two more six packs of beer, with all three contributing fairly equal to its purchase. The three drove to a girlfriend's house, staying about an hour, and then left to drive in the country again. While they were driving on a gravel road, an accident occurred about 10:45 or 11:00, wherein plaintiff was injured. All plaintiff recalls about the accident is that the road was fairly straight and level and dry, he had looked at the speedometer and had seen that defendant was traveling 60 miles per hour, that he had said to defendant "to slow down a bit," that he then looked forward, and that he does not remember anything further until after the accident. Plaintiff's evidence would show that defendant had had four beers during the first drive in the country, two at the girlfriend's house, and one later.

SDCL 32-34-1 provides:

No person transported by the owner or operator of a motor vehicle as his guest without compensation for such transportation shall have cause of action for damages against such owner or operator for injury, death, or loss, in case of accident, unless such accident shall have been caused by the willful and wanton misconduct of the owner or operator of such motor vehicle, and unless such willful and wanton misconduct contributed to the injury, death, or loss for which the action is brought. ^*

In order to exclude a passenger from the operation of the guest statute, one of two elements is necessary: (1) The driver must receive some benefit from transportation, either alone or in common with his rider, and such benefit must be sufficiently real, tangible, and substantial to serve as an inducing cause of the transportation so as to operate to completely overshadow any considerations of mere hospitality growing out of the friendship or relationship, or (2) the accident and injury must have been caused by the willful or wanton misconduct of the owner or operator of the vehicle. Lukens v. Zavadil, 281 N.W.2d 78 (S.D.1979).

The first issue is whether plaintiff was a guest in defendant's automobile.

Generally, sharing of costs of operating an automobile or other expenses does not transform into a paying passenger one who without the exchange would be a guest. But where the owner or operator insists upon a prearrangement indicating that transportation is given conditioned upon a contribution towards expenses of a trip, the provisions thus made will preclude the host-guest relationship notwithstanding the trip may have a social aspect. Vague, incidental or speculative benefits are not sufficient to take an occupant out of the guest statute. Boyd v. Alguire, 82 S.D. 684, 153 N.W.2d 192 (1967). Recreation or enjoyment in which all parties share is not sufficient compensation. Robe v. Ager, 80 S.D. 597, 129 N.W.2d 47 (1964). In Boyd, supra, there was a prearrangement that the transportation would be given to the plaintiff conditioned upon the plaintiff's contribution in sharing the gas expense or paying fifty cents. This agreement was held to be sufficient enough to preclude the host-guest relationship.

In Lukens, supra, an otherwise guest was found to be a paying passenger even where there was not any express agreement for sharing expenses. The driver in that case said she needed to fill the car with gasoline and each passenger gave her a dollar and the plaintiff testified that she felt that if she did not pay the money the driver would not be able to drive to the destination.

The consideration to the driver need not be monetary. For example, where a father took his adult son to a cattle sale because he wanted him to look at some cattle, the relationship was held to be other than host-guest. Kleinhesselink v. Porterfield, 76 S.D. 577, 83 N.W.2d 191 (1957).

In this case, plaintiff did not contribute to any gas purchased by defendant, and there was no expressed agreement for the sharing of any other expenses on this trip. There...