This is an action to recover damages for personal injuries sustained by plaintiff while in an automobile owned and driven by Roger L. Alguire. The driver, then of the age of eighteen, was killed in the accident. The action was commenced against the administrator of his estate. From judgment on a verdict for the plaintiff, defendant has appealed.
Plaintiff alleges that on February 8, 1963, he was riding "under contractual relationship, not as a guest, in a motor vehicle operated by Roger L. Alguire" and that the driver operated his automobile at a speed greater than was reasonable and prudent under the circumstances and failing to keep his automobile under control
Plaintiff and decedent were students at the University of South Dakota and had been acquaintances for several years. At the time of the accident decedent, enroute from Vermillion to Sioux Falls, was accompanied by plaintiff and three other students. Plaintiff contacted defendant's decedent about riding with him. The court before admitting evidence of statements of the deceased made the preliminary finding required by the provisions of SDC 1960 Supp. 36.0104
Plaintiff had testified that while at the gas station each of the riders including himself paid fifty cents to defendant's decedent for the purchase of gasoline.
The party of five left Vermillion about four o'clock in the afternoon traveling east on Highway 50 to the junction of Interstate 29 and then proceeded north on the latter highway. Plaintiff was riding in the seat beside the driver and Darrel Seaman to the right of plaintiff. The other two occupied the rear seat. They proceeded without incident until they reached the Harrisburg overpass and exit. About a mile north of this point is another overpass.
There was conflict in the evidence as to the weather and highway conditions and the speed of the car at the time of the accident.
Plaintiff testified that immediately before the accident decedent was traveling between 50 and 60 miles per hour; that there was "some form of precipitation"; that immediately after traveling under the Harrisburg overpass the car went into a slight skid and then came back into the lane of travel; and that thereafter having proceeded two or three hundred yards and without the slackening of speed the car went into a second skid and out of control and the left side of
Defendant contends (1) that the mere sharing of expenses did not make plaintiff a passenger rather than a guest; (2) that if there was an agreement for transportation with compensation the agreement was timely disaffirmed; (3) that sudden skidding of the automobile in and of itself did not constitute negligence; and (4) that the court committed errors in the admission of evidence and in its instructions to the jury.
Defendant contends that SDC 44.0362 known as the guest statute is here applicable. It reads:
The question whether a person riding in another's automobile is a guest within the meaning of this statute depends upon the facts and circumstances involved in each case. Plaintiff contends that the evidence shows that he was being transported by defendant's decedent in consideration of a cash payment made pursuant to an agreement. Defendant insists that the cash payment or contribution was not a benefit accruing to the operator of the car sufficient to remove him from the category of a guest. The trial court concluded that the question of relationship was one of fact for the jury.
When evidence is undisputed or such that minds of men could not reasonably arrive at but one conclusion, the question is one for decision by the court as a matter of law; otherwise, it is a question for the jury to decide as other issuable facts in the case. Granflaten v. Rohde, 66 S.D. 335, 283 N.W. 153; Cluts v. Peterson, 79 S.D. 462, 113 N.W.2d 273.
The meaning of the word "guest" as used in the statute, then Ch. 147, Laws 1933, was first considered by this court in Schiltz v. Picton, 66 S.D. 301, 282 N.W. 519, where we said: "While it might be that under this statute actual payment in money or other tangible thing is not necessary to exclude one from its terms and render one not a guest, nevertheless, we believe that the statute contemplates some benefit accruing from the transportation to the owner or operator of the motor vehicle in order to render a passenger in a motor vehicle not a guest. Such benefits as are compatible with hospitality, companionship or good fellowship accruing to the owner or operator are not sufficient to take the passenger out of the guest classification. Perhaps no precise rule can be laid down at this time to govern every situation, but we think it clear that under this state of facts where the transportation of this plaintiff was a mere gratuity, and where the benefit derived from the transportation accrued solely to the plaintiff, plaintiff must be classified as a guest under our statute."
In Forsling v. Mickelson, 66 S.D. 366, 283 N.W. 169, it was held that a member of a band who had volunteered his service for a booster trip to advertise a community enterprise and was being transported when injured in a motor vehicle driven by defendant, a businessman who was benefited indirectly by the advertising trip, was not a
The statute in question must be interpreted and applied in accordance with the intention of the legislature. The statute should not be extended by construction beyond its objectives nor be so restricted as to defeat its purposes. The phrase "guest without compensation for such transportation" implies that the occupant so referred to is the recipient of the hospitality of the owner or operator as distinguished from a passenger who has given compensation for the transportation. A vague, incidental or speculative benefit is not sufficient to take an occupant out of the guest class. In Scotvold v. Scotvold, 68 S.D. 53, 298 N.W. 266, it is said that the benefit must be "sufficiently real, tangible and substantial to serve as the inducing cause of the transportation, and to operate to completely overshadow any considerations of mere hospitality growing out of friendship or relationship." See also Gunderson v. Sopiwnik, 75 S.D. 402, 66 N.W.2d 510; Tennyson v. Kern, 76 S.D. 136, 74 N.W.2d 316; Mitzel v. Hauck, 78 S.D. 543, 105 N.W.2d 378; Cluts v. Peterson, 79 S.D. 462, 113 N.W.2d 273; Peterson v. Snell, 80 S.D. 496, 127 N.W.2d 142; Jennings v. Hodges, 80 S.D. 582, 129 N.W.2d 59.
It is a general rule that the sharing of the cost of operating the car or other expenses when the acceptance of the occupant for conveyance is not motivated by or conditioned on such contribution is incidental and nothing more than the exchange of social amenities and does not transform into a paying passenger one who without the exchange would be a guest. Tennyson v. Kern, supra. Where, however, the owner or operator of a motor vehicle insists upon a prearrangement indicating that the transportation given was conditioned upon his contribution toward the expenses of the trip, the provision thus made will preclude the host-guest relationship notwithstanding the trip may have a social aspect. McMahon v. DeKraay, 70 S.D. 180, 16 N.W.2d 308; 60 C.J.S. Motor Vehicles § 399(5); Annot., 10 A.L.R.2d 1351.
It appears from the testimony of the plaintiff that there was a specific agreement conditioned on the payment of a fixed amount. The jury could properly find that such payment was the motivating influence for furnishing the transportation. The contractual relationship of host and passenger was thus voluntarily assumed and the provisions of the guest statute under such fact situation were inapplicable.
The contract of a minor over eighteen years of age is not void unless for some other reason than minority, but voidable merely, and enforceable unless disaffirmed in the manner provided by statute. SDC 43.0104, 43.0105. Defendant's decedent was eighteen years of age when the claimed prearrangement for transportation was made. Defendant contends that the status of the parties was one arising out of a contractual relationship and recovery cannot be had without directly or indirectly enforcing the contract. Our most recent consideration of the right of disaffirmance of a contract by a minor incident to the guest statute was in Friedhoff v. Engberg, S.D., 149 N.W.2d 759. That action was for injuries sustained in an automobile accident by an occupant against the driver who was eighteen years of age and a ranch operator who employed plaintiff occupant and the driver. As to the right of defendant minor to disaffirm his employment contract so as to change the status of plaintiff to that of a guest, this court said: "A tort usually arises from a breach of legal duty independent of contract. Such breach of duty may arise out of a relation or state of facts created by contract. Smith v. Weber, 70 S.D. 232, 16 N.W.2d 537. A contract may establish a relationship requiring exercise of proper care and acts or omissions in performance of such duty may give rise to a tort liability. Weeg v. Iowa Mutual Insurance Co., S.D., 141 N.W.2d 913.
Defendant submits that it is not uncommon under certain conditions for an automobile to skid and to be out of control without fault on the part of the driver. It has been generally held that mere skidding of an automobile does not indicate or establish negligence. Annot., 58 A.L.R. 266, 113 A.L.R. 1005. It is clearly the position of this court that taken together with other acts or omissions of the driver, skidding may occur under such circumstances as to warrant a finding of negligence. Zeigler v. Ryan, 65 S.D. 110, 271 N.W. 767; Jacobson v. Coady, 77 S.D. 1, 84 N.W.2d 1.
A verdict in favor of plaintiff was held sustained by the evidence in Zeigler v. Ryan, supra, where it appeared that the driver proceeding down a hill at a rapid rate of speed when it was necessary that he yield a part of the highway to an oncoming car made no attempt to slacken his speed prior to meeting the oncoming car and jammed on the brakes when skidding commenced at a turn in the highway. This court held that whether the driver met the conditions as an ordinarily prudent man would under similar circumstances was a question for the jury. The rule consistently followed in this court is that we cannot weigh conflicting evidence or pass upon the credibility of witnesses. That is within the province of the jury. Under the facts disclosed by this record, the court was justified in submitting the question of negligence to the jury.
Defendant contends that refusal of the court to give a requested instruction on unavoidable accident was error. The refusal was in accord with Cordell v. Scott, 79 S.D. 316, 111 N.W.2d 594, where this court said: "* * * we believe unavoidable accident instructions should be restrictively used * * *. In the ordinary negligence action the jury is adequately instructed on the ultimate issues by instructions on negligence, contributory negligence, burden of proof, and proximate cause. Further instruction on unavoidable accident usually is unnecessary. Such instruction may properly be given in those cases where there is evidence that something other than the negligence of one of the parties caused the mishap." See also Herman v. Spiegler, S.D., 145 N.W.2d 916. Refusal to give the instruction clearly was not error as the jury was fully instructed upon negligence and there was no evidence that the accident resulted from other cause.
The trial court after advising the jury of the issues submitted by the court further instructed: "In order for plaintiff to be taken out of the category of a guest, you must find that there was a pre-arrangement whereby Roger Alguire agreed to transport Bruce Boyd to Sioux Falls, providing Bruce Boyd paid fifty cents." The grounds of defendant's objection to this
All the Judges concur.