Wittmeier v. Post, 9825

• Decision Date: 30 September 1960
• Docket Number: No. 9825,9825
• Citation: 78 S.D. 520,105 N.W.2d 65
• Parties: , 97 A.L.R.2d 853 Christof J. WITTMEIER, Special Administrator of the Estate of Rodney Reed Wittmeier, Deceased, Plaintiff and Appellant, v. Charles POST, Defendant and Respondent. Theodore SVANDA, Special Administrator of the Estate of Ronald Lee Svanda, Deceased, Plaintiff and Appellant, v. Charles POST, Defendant and Respondent.
• Court: South Dakota Supreme Court

Page 65

105 N.W.2d 65

78 S.D. 520, 97 A.L.R.2d 853

Christof J. WITTMEIER, Special Administrator of the Estate

of Rodney Reed Wittmeier, Deceased, Plaintiff and Appellant, v. Charles POST, Defendant and Respondent.

Theodore SVANDA, Special Administrator of the Estate of Ronald Lee Svanda, Deceased, Plaintiff and Appellant, v. Charles POST, Defendant and Respondent.

No. 9825.

Supreme Court of South Dakota.

Sept. 30, 1960.

Morgan & Fuller, Mitchell, Robert W. Hirsch, Tripp, for plaintiffs and appellants.

John A. Engel, Avon, Davenport, Evans, Hurwitz & Smith, Sioux Falls, for defendants and respondents.

HANSON, Judge.

Two wrongful death actions arising out of the same fatal accident were consolidated for trial and have been appealed here in one proceeding. Plaintiffs' decedents, Rodney Wittmeier and Ronald Svanda, were killed on November 6, 1957 while riding as passengers in an automobile driven by the defendant, Charles Post. Defendant's cousin, Frank Post, was also a passenger in the car. All of the boys were fifteen years of age and attended Tyndall High School where they participated together in sports and other school activities. On the day of the accident the boys were hunting geese. Defendant had obtained permission to use his father's 1951 Buick automobile for this purpose. The accident took place on a country gravelled highway when the car struck a steel bridge which was slightly off-set from the regular lane of the highway. The impact completely severed the car in the middle resulting in the deaths of plaintiffs' decedents. Shortly before the accident defendant had been driving at a speed of at least seventy miles per hour and some time before the boys had requested him (jokingly or otherwise) to slow down.

The jury returned verdicts in favor of defendant in both cases. Plaintiffs appeal from the adverse judgments and from the order denying a new trial contending the court erred (1) in allowing the jury to view the scene of the accident, (2) in instructing the jury as to the standard of care for a child driving a motor vehicle, and (3) in denying a new trial because of improper conduct of the bailiffs. Although suggested in the briefs of counsel the sufficiency of the evidence to sustain a recovery for wilful and wanton misconduct is not presented.

The condition and topography of the highway leading up to the scene of the accident was an important factor for the jury to consider in appraising defendant's conduct in the light of the circumstances then existing. That portion of the highway was characterized as rolling or somewhat hilly. Plaintiffs contend the jury was completely and fully informed as to the nature of the highway by the testimony of witnesses, photographs, and profile charts and the trial court abused its discretion in allowing the jury to travel over the highway at a speed less than the speed travelled by defendant which in effect allowed the jury to conduct an experiment under different conditions from those existing prior to, and at the time of, the accident. We find no merit in such contention. During the trial both parties introduced topographical charts or plats of the highway in question. These charts were drawn to different horizontal and vertical scales. One aggravated the elevations in the highway while the other minimized them. By reason of such conflicting evidence it was well within the discretion of the trial court to allow the jury to view the scene of the accident in order for them to evaluate the record evidence in its proper perspective. SDC 33.1322; Mason v. Braught, 33 S.D. 559, 146 N.W. 687. While viewing the scene of an accident it would be improper for the jury to conduct tests or attempt to simulate or reenact the accident.

By virtue of our guest statute defendant is liable to plaintiffs only for damages caused by his 'willful and wanton misconduct'. SDC 44.0362. In this regard the trial court instructed the jury on the external or objective test for determining the essential element of 'an affirmatively reckless state of mind'. Instruction 8, in language apparently taken from the recent case of Chernotik v. Schrank, 76 S.D. 374, 79 N.W.2d 4, informed the jury that '* * * an actor's conduct is in reckless disregard of the safety of another, if he intentionally does an act, or fails to do an act, which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize that the actor's conduct not only creates an unreasonable risk of bodily harm to the other, but also involves a high degree of probability that substantial harm will result to him'. The trial court went on in the same instruction to advise the jury that 'when the actor is a child; he is required to conform to conduct which it is reasonable to expect from children of like age, intelligence and experience'. Plaintiffs excepted to this portion of instruction 8 upon the ground that when a child of fifteen years of age is licensed to operate a motor vehicle on the highways of our state such child is bound to conform to the laws of our state in its operation. In other words, plaintiffs contend the youthful operator of an automobile should be required to conform to the same standard of conduct as an adult driver.

In ordinary negligence actions plaintiffs' contention finds substantial support in modern authority. It is suggested in Comment c. under § 283A of the American Law Institute's Tentative Draft No. 4 of the Restatement of Torts that:

'An exception to the rule stated in this Section may arise where the child engages in an activity which is normally undertaken only by adults, and for which adult qualifications are required. As in the case of one entering upon a professional activity which requires special skill (See § 299A), he may be held to the standard of adult skill, knowledge and competence, and no allowance may be made for his immaturity. Thus, for example, if a boy of fourteen were to attempt to fly an airplane, his age and inexperience would not excuse him from liability for flying it in a negligent manner. The same may be true where the child drives an automobile. In this connection licensing statutes, and the examinations given to drivers, may be important in determining the qualifications required; but even if the child succeeds in obtaining a license he may thereafter be required to meet the standard establish primarily for adults.' (Approved at 1959 meeting of American Law Institute).

See also Vol. 2 Harper & James 'The Law of Torts' p. 927. However, we are not here concerned with liability for simple negligence.

Negligence is the failure to exercise ordinary care under the circumstances. Intent is not an essential element. Wilful and wanton misconduct on the other hand involves something more. It involves 'conduct which partakes to some appreciable extent, though not entirely, of the nature of a deliberate and intentional wrong'. Melby v. Anderson, 64 S.D. 249, 266 N.W. 135, 137. It is the element of deliberate recklessness which differentiates wilful and wanton misconduct from ordinary negligence. It may be tested or shown by evidence which is either subjective or objective in nature. When a defendant's actual reckless state of mind is shown the evidence is subjective in nature. On the other hand every person is presumed to intend the natural and probable consequences of his own acts and a defendant's reckless state of mind may be inferred from conduct and actions so patently dangerous that a reasonable person under the circumstances would know, or should know, that his conduct will in all probability prove disastrous to his guest. Such evidence is objective in...