Wheat v. Patterson

• Decision Date: 16 November 1967
• Docket Number: No. 8398,8398
• Citation: 154 N.W.2d 367
• Parties: Bobby L. WHEAT, Plaintiff and Respondent, v. William F. PATTERSON, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 367

154 N.W.2d 367

Bobby L. WHEAT, Plaintiff and Respondent, v. William F. PATTERSON, Defendant and Appellant.

No. 8398.

Supreme Court of North Dakota.

Nov. 16, 1967.

Syllabus by the Court

In an action by a guest against his host driver for damages as a result of injury sustained in an automobile accident, we find, for reasons stated in the opinion, that the proximate cause of the guest's injury was the gross negligence and willful misconduct of the host in the operation of his automobile, that the guest did not assume the risk, and that the award made by the trial court was proper.

Shaft, Benson, Shaft & McConn, Grand Forks, for defendant and appellant.

Pringle, Herigstad, Meschke, Loder, Mahoney & Purdy, Minot, for plaintiff and respondent.

TEIGEN, Chief Justice.

The defendant has appealed from an adverse judgment in a tort action for personal injuries sustained by the plaintiff in an automobile accident in which the defendant was the host driver and the plaintiff his guest. The case was tried to the court without a jury and the defendant has demanded a trial de novo in this court.

The plaintiff has alleged willful misconduct and gross negligence on the part of the defendant as the proximate cause of his injuries. The defendant has denied these allegations and has pleaded the affirmative defenses of assumption of risk and contributory negligence. We review the evidence in the light of the following governing principles as they apply to issues framed in this case. The appeal is here for trial anew of the entire case upon the record made in the trial court pursuant to Section 28--27--32, N.D.C.C.

The plaintiff has the burden of proof to prove by a fair preponderance of the evidence that his injuries were proximately caused by the willful misconduct or gross negligence of the defendant. Holcomb v. Striebel, N.D., 133 N.W.2d 435; Anderson v. Anderson, 69 N.D. 229, 285 N.W. 294.

The guest statute, Section 39--15--03, N.D.C.C. provides that the owner, driver, or person responsible for the operation of the vehicle shall be liable to the guest only where 'injury to or death of a guest proximately resulting from the intoxication, willful misconduct, or gross negligence of such owner, driver, or person responsible for the operation of such vehicle.'

Gross negligence is to all intents and purposes, no care at all. It is the omission of the care which even the most inattentive or thoughtless seldom fail to take of their own concerns. It evinces a reckless temperament. It is a lack of care which is practically willful in its nature.

Rokusek v. Bertsch, 78 N.D. 420, 50 N.W.2d 657.

See also Anderson v. Anderson, supra; Holcomb v. Striebel, supra.

'Willful misconduct in relation to the 'guest statute,' denotes intentionally doing that which should not be done or failing to do that which should be done, with knowledge, express or implied, that injury to a guest will probaby result or with reckless disregard of the possibility that injury to a guest may result.

Rokusek v. Bertsch, supra.

The defendant, by his answer, has pleaded the affirmative defenses of assumption of risk and contributory negligence and has, therefore, asserted the affirmative of an issue that must be determined if it is found the plaintiff has sustained the burden of proof as to his claim.

Either assumption of risk or contributory negligence is a complete defense to recovery but the defendant has the burden to prove the same by a fair preponder ance of the evidence. Fagerlund v. Jensen, 74 N.D. 766, 24 N.W.2d 816; Moe v. Kettwig, N.D., 68 N.W.2d 853; Olson v. Cass County Electric Cooperative, Inc., N.D., 94 N.W.2d 506; Serbousek v. Stockman Motors, Inc., N.D., 106 N.W.2d 879; Ekren v. Minneapolis, St. Paul & S.S.M. Ry, Co., N.D., 61 N.W.2d 193.

The defenses of assumption of risk and contributory negligence in guest cases, being affirmative defenses, presuppose negligence on the part of the defendant as a proximate cause of the injury. Both of these defenses arise in Section 9--10--06, N.D.C.C., which provides as follows:

Every one is responsible not only for the result of his willful acts but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter, willfully or by want of ordinary care, has brought the injury upon himself. * * *

The affirmative defenses of assumption of risk and contributory negligence, as applied to guest cases, were defined in Borstad v. La Roque, N.D., 98 N.W.2d 16, at p. 25, as follows:

As applied to the defense raised by the host driver in an action by his guest passenger where liability of the host arises in tort, the guest will be deemed to have 'assumed the risk' of injury arising from the mishap when (1) the guest has knowledge of a situation that is dangerous beyond that normally inherent in the operation of a vehicle whether caused by the obvious incompetence of the driver or by the dangerous condition of the vehicle, or otherwise, (2) an appreciation of the danger and a voluntary choice to encounter it, and (3) an injury proximately caused by the danger presented. * * *

Contributory negligence, on the other hand, arises from the failure of the guest, in the same situation, to exercise ordinary care for his own safety * * *.

We also said in Borstad v. La Roque, supra:

The defense of assumption of risk, when applicable as a bar to recovery, operates independently of negligence and proximate cause, except merely to expose the injured claimant to the danger, whereas, it is an essential feature of the defense of contributory negligence that the negligence of the injured claimant be a proximate cause of the mishap and the resultant injury.

In the light of the foregoing principles of law we will now find the facts, keeping in mind that on a trial de novo to the Supreme Court on appeal the findings of the trial court are entitled to appreciable weight, especially when based on testimony of witnesses who appeared in person before the trial court. Grabau v. Hartford Accident & Indemnity Co., N.D., 149 N.W.2d 361; 501 DeMers, Inc. v. Fink, N.D., 148 N.W.2d 820; Gress v. Gress, N.D., 148 N.W.2d 166. Although the findings of the trial court are entitled to appreciable weight, this court, on appeal, is not bound thereby on trial de novo. We must still find the facts independent of the trial court's findings. McKenzie v. Hanson, N.D., 143 N.W.2d 697; Adams v. Little Missouri Minerals Association, N.D., 143 N.W.2d 659; C.I.T. Corporation v. Hetland, N.D., 143 N.W.2d 94.

The evidence establishes without dispute or contradiction that the accident in which the plaintiff was injured happened about 7:30 p.m. on December 23, 1963, at a point on State Highway 5 approximately two and one-half or three miles east of Mohall, North Dakota. Highway 5 at this point was a two-lane blacktop or asphalt-surfaced highway and the parties were driving westerly on their way to Mohall. It was a clear, cold evening and the highway was in good driving condition, except for some slipperiness due to frost. The defendant was the owner of a 1963 Volkswagen which he was driving and the plaintiff was seated beside him in the front seat. Mr. Cruse and Mr. Trainer were seated in the back seat. All four were returning to their respective homes at Mohall after a day's work at the Minot Air Force Base where all four men were employed by The Boeing Company. The men commuted each day to the Minot Air Force Base. Patterson and Cruse were supervisory employees of Boeing and the employer paid them a stipend to defray the cost of their transportation. Wheat and Trainer did not receive payment for transportation to and from work. An arrangement had been in effect for several months whereby Patterson and Cruse alternated in driving with Patterson driving his car most of the time. Wheat and Trainer rode with them as their guests.

The four men had driven from Mohall to the Minot Air Force Base in the morning, reported for work at about 7:30 a.m. and worked until 4:15 p.m., after which they met at the NCO Club located on the Base. They remained at the NCO Club for about one and one-half hours during which time they each had three or four drinks. Peanuts and potato chips were consumed along with the drinks. The four of them left the Air Base in the Patterson Volkswagen for Mohall, a distance of about 32 miles. Enroute they stopped along the highway for ten or fifteen minutes to allow Cruse to relieve himself. The plaintiff and the defendant continued a discussion or argument about working conditions. The defendant was the plaintiff's supervisor at Boeing. A State highway patrolman came along while they were stopped and spoke with Patterson and Cruse, who were outside the automobile. The patrolman asked if there was anything wrong and, upon receiving a negative answer, warned that the roads were getting a little slippery from frost and cautioned them to drive carefully. The men then proceeded toward Mohall but stopped for about 15 or 20 minutes at a tavern in Lansford which was off the regular route but not out of the way. Each had another drink and bowled on a bowling machine. They again proceeded toward Mohall on a graveled road until it intersected with Highway 5 east of Mohall where they made a left turn onto Highway 5. A short time after they turned onto Highway 5 the accident occurred.

It is also undisputed that the defendant's driving from the Minot Air Force Base to Highway 5 was normal. There was nothing about it that would indicate he was careless, reckless, or incompetent. Each of the passengers testified that there was no room for complaint on the skill with which the defendant had operated the automobile. There is nothing in the record whatsoever to indicate that any of the passengers had knowledge or appreciated that a situation existed caused by incompetence of the driver which was dangerous beyond that normally inherent in the operation of a...