Wentzel v. Huebner, 9814-

• Decision Date: 02 September 1960
• Docket Number: No. 9814-,9814-
• Citation: 104 N.W.2d 695,78 S.D. 481
• Parties: Paul WENTZEL, by Vernon Wentzel, his guardian ad litem, Plaintiff and Respondent, v. Leslie D. HUEBNER, Defendant and Appellant. a.
• Court: South Dakota Supreme Court

Page 695

104 N.W.2d 695

78 S.D. 481

Paul WENTZEL, by Vernon Wentzel, his guardian ad litem Plaintiff and Respondent, v. Leslie D. HUEBNER, Defendant and Appellant.

No. 9814-a.

Supreme Court of South Dakota.

Sept. 2, 1960.

Hanley, Costello & Porter, Rapid City, for defendant and appellant.

Bottum & Beal, Rapid City, for plaintiff and respondent.

SMITH, Judge.

The paramount contention of the defendant in this action, brought under SDC 44.0362, commonly referred to as the guest statute, is that the evidence, considered most favorably from plaintiff's viewpoint, fails to establish 'willful and wanton misconduct' on the part of defendant. The case was submitted to the jury and a substantial verdict for plaintiff was returned. The stated contention was raised below by a motion for a directed verdict made at the close of plaintiff's evidence, and renewed at the close of the evidence, and by motions for a judgment n. o. v. and for a new trial.

The father of defendant is an expert mechanic. He had owned a racing car in which he had installed a 1952 DeSoto V-8 motor which he had modified in many respects to enhance the speed of the vehicle. In the spring of 1957 he withdrew that car from racing and in the summer of that year installed its motor with its modifications in a 1950 Plymouth Tudor sedan. The father testified that later in the summer or very early fall he removed the modifying parts and restored the motor to stock condition.

During the evening of November 14, 1958 defendant, home on furlough from the Marines, was driving this sedan and had as his guests therein five Rapid City youths, including plaintiff, Vernon Wentzel. Eventually the group purchased a pint and a half of whiskey and two quarts of beer and repaired to the quarters of a seventh young man. Plaintiff and another of the group drank the two bottles of beer. The others consumed the whiskey. Plaintiff testified that one of the young men drank a glass full of whiskey and that the defendant had more to drink than anybody. Defendant testified that he had one mixed drink and two drinks from a bottle. The six eventually returned to the automobile and continued to drive about the city. At one point they all got out of the car, and one young man, who had become ill, relieved himself. Thereafter they continued cruising about. The record evidences no excessive speed or unusual driving while going about the city. Plaintiff said defendant was not intoxicated and the only changes he noticed in defendant after their drinking was in his voice. When asked if he had not admitted on a previous occasion that defendant drove a little faster after the liquor was consumed his answer was, 'I said maybe; I'm not sure.'

Finally defendant drove north out of the city on what is known as Deadwood Avenue. About two miles north of the city he came to a stretch of road, presently to be described in some detail, which included several curves. It was at this point that defendant put his car in second gear and began the sharp acceleration which ended in disaster. Plaintiff, who was seated at the right in the rear seat, became alarmed and in a loud tone, almost a shout, asked him to slow down. Another youth in the back told plaintiff to shut up, that defendant was a good driver. Without any character of response to plaintiff's demand, defendant continued to accelerate until a speed was attained estimated by plaintiff as between 70 and 90 miles per hour. After traversing three curves the car came to a somewhat sharper fourth curve; then it hurtled head-on through the air from the banked grade and struck a power pole 9 feet up from its base and 35 feet from the point of the car's departure from the grade. The vehicle made no marks in the snow between the grade and the pole. The power pole was broken in two places. The break at the level of the ground was described as a pressure break. The upper break at the 9-foot level was of like character but bore evidence of shearing. No other mark indicating a point of impact appears on the pole. A creasing crush angled across the front top of the car. The record is silent as to any skidding of the automobile during its course. Two of the young men were killed and plaintiff was severely injured; he was pinned under a hanging door when the car came to rest. Testimony with reference to events after the acceleration had commenced came from plaintiff. The defendant and the other two survivors testified that they had no memory as to what happened from the moment defendant increased his speed. Defendant did talk to an officer at the scene of the accident but appeared dazed. He also came to plaintiff where he was pinned under the car and said 'Remember Price was driving.' Price was one of the young men who was killed.

A professor of science from the South Dakota School of Mines and Technology was called by plaintiff as an expert witness. He expressed the opinion that the free flight of the car indicated a minimum speed of at least 70 miles per hour at the moment of its departure from the grade. He refused to express an opinion of the maximum speed at that moment, but said there was evidence of a much higher rate of speed.

On cross-examination this expert testified that, assuming gear ratios in the transmission and differential of the car as stated by defendant and his father, the car would be capable of a speed of 53 miles per hour in second gear. However, he reaffirmed his opinion as stated on direct that the car had to be traveling at a minimum speed of 70 miles per hour at the moment it left the grade in order 'to accomplish what it did accomplish.'

Another witness for plaintiff told of a ride he had been given in the car by defendant at a time after the time fixed by the father when he had removed the racing modifications therefrom, and said that during that ride while traveling up a described road in second gear the speedometer registered 95 miles per hour.

This stretch of curved highway had been posted by authorities for a speed limit of 35 miles per hour. An officer had prepared himself by measuring distances, and described it in detail. In length, from the point of commencement of the acceleration, it measures a mile and a tenth. At two-tenths of a mile a 120-degree curve commences; at three-tenths of a mile from the end of that curve there is a curve of 150 degrees; four-tenths of a mile from that curve another 150-degree curve gegins; and finally after three-tenths of a mile there is the fourth sharp curve of 100 to 120 degrees. A photograph offered as an exhibit reveals the banking of this final curve. Under normal conditions the surface of the highway is smooth blacktop. On the night in question there was snow on the ground; it was drizzling and there was some icing on the highway.

Defendant admitted he had driven along this winding highway at least ten times, and that his driving included experience in driving both directions. He said he had not been on it for a year and did not remember it in detail.

The argument of defendant's counsel that the evidence we have outlined fails to establish the wilful and wanton misconduct made essential by SDC 44.0362 to a recovery of damages by such a guest as plaintiff against the operator of the motor vehicle in question is predicated on passages from our decisions.

In the leading case of Melby v. Anderson, 64 S.D. 249, 266 N.W. 135, 137, this court concluded our statute had been taken from Michigan and that it would follow the interpretation of its language as theretofore expressed by the Michigan court. Its understanding of that interpretation was declared in two passages. First, it was written:

'That to create liability under the statute there must be (1) knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to another; (2) ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand; (3) omission to use such care and diligence to avert the threatened danger when, to the ordinary mind, it must be apparent that the result is likely to prove disastrous to another.'

It was also written:

'Under those decisions, the words 'gross negligence' are, for practical purposes, substantially synonymous with the phrase 'wilful and wanton misconduct.' Willful and wanton misconduct (and gross negligence as it is employed in this statute) means something more than negligence. They describe conduct which transcends negligence and is different in kind and characteristics. They describe conduct which partakes to some appreciable extent, though not entirely, of the nature of a deliberate and intentional wrong. To bring the conduct of the defendant within the prohibition of this statute the jury must find as a fact that defendant intentionally did something in the operation of a motor vehicle which he should not have done or intentionally failed to do something which he should have done under such circumstances that it can be said that he consciously realized that his conduct would in all probability (as distinguished from possibly) produce the precise result which it did produce and would bring harm to the plaintiff.'

In Granflaten v. Rohde, 66 S.D. 335, 283 N.W. 153, 156, it was written: '* * * it (wilful and wanton misconduct) involves the affirmative elements of consciousness of one's conduct and not merely the negative element of negligence.' This case also makes reference to 'an affirmatively reckless state of mind.'

In Espeland v. Green, 74 S.D. 484, 54 N.W.2d 465, 467, however, in declaring that Melby v. Anderson, supra, authorizes the application of an external standard in a determination of whether a defendant consciously realized that his conduct would in all probability produce harm to plaintiff, it was written, 'Under it (the external standard) the driver's mental attitude is established not by what he said nor even by what he may actually have thought, but rather by the attitude that an ordinarily...