*1 520 year extending agreement for one its term oral
cuted say not sharp court that the trial conflict. We cannot believing find- plaintiff The justified witnesses. and her against preponderance ings the clear court are the trial v. Houck evidence, be sustained. and must therefore Hult, 258 N.W. 63 S.D. judgment appealed from is affirmed. Judges
All concur. McLAIN, Appellant Respondent ALLEN, 390) (69 N. W.2d 1955) (File Opinion March filed No. 9430. May 20, Rehearing denied *3 Falls, Sioux for Plaintiff and Re- Lacey Parliman, & spondent. Falls, for Sioux Davenport, Evans, Smith, Hurwitz & Appellant. Defendant and LEEDOM, J. This matter has been before the court previously. by guest passenger against It is an action a damages arising personal owner of an automobile for injuries sustained when the automobile overturned. When the case was first tried the returned a verdict for the granted plaintiff’s defendant. The trial'court for a then motion appeal first new trial. The the defendant from Our de- the order a new trial. that order. We affirmed reported 646, 58 is in 74 N.W. that connection S.D. cision for a is made to the former decision 2d Reference comprehensive of the facts. summarization ver-
On the trial the returned a substantial second appealed plaintiff now for the and the has dict defendant judgment or- from the entered on the verdict and from the denying for a of the trial defendant’s motion new der court trial. evidence,
In our first decision we held that plaintiff, light most favorable was sufficient viewed part of willful and wanton misconduct on the de show as driver the automobile at the time the acci fendant Appellant, conceding now that the evidence on this dent. substatially point in the trial is second the same in the argue extensively trial, first does not the evidence in support finding sufficient to of willful and wanton miscon part again driver but duct if was the he merely original position affirms such evidence does actually finding. point sustain such On this we adhere Assuming former to our decision. the defendant was driving the car time of at the the accident it is our view the finding does evidence sustain of willful and wanton mis part. conduct his
Appellant’s assignments appeal question of in error this given propriety judge of the the instructions the to the jury propriety rulings and also the of numerous on admis- rejection dispute and of sion in the second lant, evidence. One of the in issues appel-
trial, first, as well as in the was whether driving car, the owner of the was at the time or wheth- relinquished occupant, he had the er wheel to a third Charles position appellant of on Schanck. the court’s instruc- by appellant’s tions was well stated counsel in his final ex- ception thereto, of taken at the time the trial. He said: objects proposed “The defendant to the Court’s instructions entirety together, they that, their for reason taken al- Jury; negligence first, mere low tinguished assume that as dis- misconduct,
from willful and wanton would be ground recovery by plaintiff sufficient for case. together, instructions, Second: that said taken allow the car at the matter who that no assume or McLain one, Forrest accident, either if some of the time negligence guilty or of willful mere Schanck, Charles plaintiff entitled would be misconduct, and wanton against Forrest McLain.” the defendant to recover trial court the contention first with We deal by inject- appellant’s prejudiced case confused ing concerning provisions numerous instructions into the distinguished negligence liability from willful mere the instructions our view that It is wanton misconduct. extensively judge given by they than much more deal the trial negli- liability mere on based the law of with should developed, in- gence. if not at the of the case As trial plaintiff, litigation, ception re- that the it was clear guest position occupied spondent in the. auto- here, of a ability depend right recover would her mobile and that part appel- prove misconduct on the and wanton willful negli- liability growing out of mere be no lant. There could gence jury question as to whether had been as if there Admittedly plaintiff guest. the instructions sev- was a places liability growing language that deals with .eral contain ordinary Appellant negligence. this lan- contends out of ordinary negligence guage to believe led finding appellant of willful wan- render liable without a ton misconduct. heavily
In relies most this connection Pettingell Colo., cases, Moede, v. recent Colorado two Oliver, Colo., 271 P.2d 271 P. 2d and Lewis any prejudicial must be determ one instruction is Whether of all the instructions in their en ined a consideration tirety. comparison any to make an exact It is difficult given in one with a similar instruction in instruction case of all the other in another case of the influence because jury. in each of the two cases on the minds of the structions say, judging lang however it is fair to from the We believe *5 uage cited, in the that of the Colorado Court two cases above in before if the instructions this case were the Colorado they likely repeated reference lia Court hold ordinary bility arising negligence prejudicial from to be er ror. We however do not reach this conclusion. Notwith- negligence standing and wanton between the distinctions necessarily departure latter a is and willful misconduct the approved in com- and has this characteristic conduct negligence. will- Thus conduct that culminates as mon with may negligence inception. in its There ful and wanton be necessity, tendency, in some instances therefore a and instructing guest negligence jury in a case. deal with in to make that care should be taken however clear Great liability predicated negligence alone, not be on acts could emphasis placed should on the essential elements of be language wanton find the willful and misconduct. While we highly objectionable appearing in these instructions in this they respect point believe did confuse on we liability depended on willful and wanton misconduct. “guest” 44.0362, statute, The instructions set out SDC clearly expressly and in several instances advise liability against appellant not be could established guilty unless he be found of willful wanton misconduct. The instructions also define willful and wanton misconduct language predicated substantially upon language in of this appellant court. While is critical of definition in num- respects departure erous we find no fatal from the as law jurisdiction. laid down the decisions in this We conclude these instructions did not result in reversible error. court instructed effect that it made no difference appellant
whether Schanck or if the found guilty the driver misconduct, willful and wanton inas- much as Schanck’s conduct under the circumstances would imputed appellant, Appellant- the owner of the car. (1) objects grounds nothing two that there re- guilty cord to show Schanck of wanton and willful miscon- (2) charge duct and appellant it was error as a matter of law charged should be with Schanck’s willful miscon- Very authority duct. able counsel for no cite point argument They say and rest on alone. brief:
“Let us assume for the moment that from Lake point Rapids' Preston to a south- Dell Forrest exactly McLain drove the car Alda Mae claimed speeds up did; he that at he drove times at to 95 *6 repeatedly per hour; Alda Mae and 100 miles asked him to slow ignored down, her but that he requests kept going let faster and faster. Then and stop at Renner Corner that McLain did us assume request, Mae’s and that from Renner Corner at Alda car, took over the of the Schanck Charles * * testified, *”. McLain as support proposition, latter only that Schanck took of the The testimony appellant driving, of comes over the respondent’s is in with witnesses. It also direct conflict his testimony. phase Appellant’s position of the here on this validity jury assumption that the be- rests on the of his case driving. jury appel- found that was If the lieved Schanck submitting question driving, lant will- was Schanck’s imputing ap- ful and wanton misconduct and such conduct pellant, though erroneous, error even be harmless be- would completely matters then be outside the cause jury’s consideration. validity proposition that the found
If there is to the they be to be the driver it must assumed that be- Schanck testimony, brought part respondent’s part lieved a parties Corner, as far as Renner otherwise there would no whatever for the verdict in her favor. It would basis necessary respondent’s for the disbelieve re- then be from Renner of events Corner to the scene cital they part In manner would have to believe like accident. and disbelieve testimony. part appellant’s dispute testimony litigants sharp these It two wide. the would be
wholly unrealistic to assume the did other story essentially accept one or the other in toto. There than is no rational basis by reconciling accepting conflict story story part part and another of the other of one on the meaning. of mere mistake or different shades of basis Belief quite necessarily part in material of one version would brand false all gen- parts version. of the other Since the verdict is respondent’s supported favor, eral and as we have indicat- appellant only driver, if the evidence rea- ed jury accepted respondent’s sonable conclusion is that testimony true believed was the driver. disclosed circumstances
There are still other *7 jury support found the that the conclusion the record which stated, appellant, appellant As Schanck, driver. be the than to rather Schanck, if driv that there is evidence claims no ing, guilty With this misconduct. willful and wanton of alleged sought prove agree. Respondent neither nor we and he was wan the driver or that willful that Schanck was drove matter of de ton. The was a contention Schanck appellant injected appellant. the But of fense case proving guilty purpose in of willful course had no Schanck misconduct; of wanton and so the record is devoid all and proof of misconduct of certain essential elements part. There no as to is evidence whatever how Schanck’s highway; car he was at the exact time the left the no any proof do, evidence then or what he did did nor of other from circumstance which inferences be drawn to can by any consciousness, establish the “mens rea” or measured probability distinguished possibility standard, of the plaintiff. proof that he was to harm about the Such is es finding sential to of willful and wanton misconduct. There may undisputed fore, said, it it is that there no evi dence whatever of the essential elements of willful and wan part. clearly ton misconduct on Sohanck’s The court did in jury struct the before it find could the defendant liable appellant driver, it Schanck, have to find the whether guilty of willful wanton misconduct. Thus admonished, with no evidence of Schanck’s willful and wan jury brought liability. misconduct, ton the in a verdict Assuming that the issue should not have been submitted as to whether wanton, Schanck was willful and and that it was impute appellant -error to Schanck’s misconduct if found exist, all the circumstances herein discussed indicate that such error was harmless. determining probably
In whether error Avas harm probably prejudicial appellate guided by less. or an court is bearing pre all the factors in the case on the likelihood of judice, the force the evidence to sustain verdict, assumptions jury intelligent, and where the theory, verdict is sustainable on more than one that the ver theory dict is based on unaffected error where noth- ing contrary. Appeal suggests C.J.S., case reject applied principles Error, § to. this record 1677. These to be the driver that this found Schanck contention Horne, In v. Van 71 N.D. at the time the accident. State sup- page 2 N.W.2d at numerous cases are cited to port statement: asks
“And where an in a civil action aside because of cer- that a verdict be set alleged erroneous, he must tain instructions to be affirmatively by presented establish, the record appellate under evidence in the court that might probably re- case the would have if erroneous turned a different verdict instruc- *8 given.” tions had not been Greenameyer, 440, Mundon v. 44 184
Also see S.D. N.W. johan Sims, 189, v. In 72 S.D. 31 N.W.2d Stammer 449, 451, the court said: giving inapt
“The of an instruction is not ground undisputed reversal, from where it is manifest the prejudiced
facts that it could not have party appealing.” the
Dealing supported by with instructions not the evi- (Early), Thompson § dence it is stated on Trials 2315: fairly “The rule.is that if it cannot be inferred by that the misled were such instructions party complaining, prejudice the the error of giving Thus, them be overlooked. if will instruc- upon tions are not based facts which the evidence by prove, also, tends to and are when examined tendency appellate court, found to have a to mis- judgment they lead, reversed, will be because they given, although are were correct as abstract loosely propositions of law. It is often said that the giving of an instruction not warranted the evi- ground reversal, dence is a since it cannot be thereby known but that the have been led to upon conceptions base their conclusion of fact of which there was no evidence. But this must be principle understood to be in subordination to the ground stated; above whether it will be of reversal depend upon supposed not, or will nature they prejudicial of nature to facts—whether are complaining.” party to the Porto,
In 98 Conn. 119 A. Valente it is written: general
“The verdict one. We tell is a cannot upon predicated; counts which verdict hence cannot tell error of we whether the the court harmed defendant. The under causes supported action three were first counts credible testimony; stand, therefore the verdict must even though the cause of action under fourth count by law, was not authorized since we cannot know upon that the verdict was the cause of based action under fourth ‘In count. such case's defend- may protect any injustice possible ant itself * * * presented when two or more issues are by asking propound count, special one the court to ” interrogatories jury.’ to the following summary appears C.J.S., black-letter 5in Appeal (g), p. Error, § 397: proper improper grounds between
“As or general presumed theories, a verdict will often be theory ground to be based on that it which *9 properly can be sustained.” apparent
From this record it becomes that there jury was no the likelihood believed Schanck to be driv the They er of the car at the the time of accident. had been in only structed to find the defendant liable if the driver was They reasonably willful and wanton. are deemed to be intel ligent. There was no evidence of such conduct Schanck. positive That he at all drove was in direct conflict with the testimony respondent of whose version of the facts was necessarily given general credit as evidenced the verdict jury in her favor. conclusion, There is room one but the light was not misled. Therefore the of these authorities submitting unsupported proposition the error in the fact willfulness was Schanck’s and wantonness harmless rather prejudicial. jury than It follows then that the verdict rests theory appellant, Schanck, driver. was
on the imputing mis- Schanck’s the instruction Thus found driver, have him could not when conduct driving, completely irrelevant, outside the becomes to be and therefore likewise harmless consideration error, having assuming Appellant, it to be erroneous. failed prejudice error, from claimed is not entitled show to reversal. Appellant on contends court’s instructions further contributory negligence assumption of risk were improper. It is our view however the instructions ade- subjects. presented quately the law the on these two respondent The doctor attended in the hos who night testify pital permitted of the accident was repeated that as he worked over her she several times sub please Ap down, sentence, slow down”. stance this “Slow prejudi pellant this claims evidence inadmissible and hearsay incompetent, for the reason that it is and made cial patient deep was unconscious and in state when shock. Actually the time the record indicates that at respondent begun had to. recover some statement made deep her what from shock and unconsciousness. We think spontaneous evidence was as a exclamation. admissible Evidence, § 20 Am.Jur. See also v. Southern Johnson Hjermstad Co., 1110, Railroad 351 Mo. 802. In S.W.2d Carriers, Inc, v. Petroleum 74 S.D. 53 N.W.2d we approval Wigmore quoted Evidence, Ed, with 3rd language indicating rendering § that one of factors competent an exclamation is. that it is evidence made physical “under external certain circumstances of shock” “under the immediate and uncontrolled domination of As the senses”. was said Johnson v. Railroad Southern supra, question competency Co, there be no should as to the alleged of such a statement on account state of the declarant unless the an unconscious language is incoherent *10 speaker It is our view delirious. that the declaration in competent clearly probative volved was value. had
Respondent’s permitted counsel was to cross- appellant concerning petit his examine commission of lar-
531
ceny. Proof
in
of conviction of crime is relevant
connection
veracity.
Gage,
390,
v.
28
with a witness’
Richardson
S.D.
692;
Bechtold,
511;
133
v.
48
203
N.W.
State
S.D.
N.W.
Appellant
Caldwell,
v.
con
State
58 S.D.
N.W. 559. There court held that the crimes involved may were remote it not too admissible. While be con long a ceded that criminal a trial offense could antedate so bearing of evidence the offense would have no on the veracity, question witness’ is one is left to the ruling sound discretion of the trial court and unless his clearly wrong appellate an should Mo court not disturb it. berg supra. appellant’s Scott, We think this com latest enough mission of the offense in 1947 was close to the trial being repetition to render it admissible and it rele lent vancy competency and therefore to the evi earlier offense as appellant’s credibility. dence of objection
The trial court admitted over of evidence previous three accidents had between 1941 upset 1948 in which ran he either his car into the ditch or it. Under broad sub-title Prove “Evidence to a Human Quality Wigmore Condition”, Evidence, Ed., or 3rd be- ginning topic § with 300 deals with the or “Other Offenses Knowledge, Design Acts, Similiar as Evidence of or Intent”. theory evidencing knowledge § is treated in evidencing Defining proper “scope § in intent Knowledge” evidence other similar acts show in Wigmore thought process: criminal cases states this to be probably “The other act will have resulted some sort of warning knowledge; warning knowledge or must probably knowledge question” 194]. [p. have led to the Illustrating proper application principle of the author quotes step Cresswell, J., old “One an case: in the proof likely [defendant] be to show that he would be follow; to know that a certain result would and if it can be proved of his mouth out own that he aware that such produced, ingredient a result would be one it is in the *11 532
necessary [p. 195]. proof contemplated theOn that he it” page quotation lim- a from Learned Hand indicates same itation on the rule: a judge time
“The must decide each for form a basis whether the other instance or instances sound knowledge guilty as to the of the accused inference n inquiry; be in the transaction under that is all that can said about the matter.” many Wigmore, succeeding
In sections of many specific through applied principle § apply principles §In 371 it is these crimes. stated that knowledge equally to issue. civil cases where intent is at authority appears where, here, it is in From this cumbent on it that knowledge plaintiff probable re
a show wrongful permissible a of a it is in a for sult act civil case plaintiff prior performed similar the de to show acts actually knowledge gained he that he fendant which Specifically applying principle denies he has. to the appellant peculiar case, know circumstances denied ledge very that at a rate around and over fast curves' necessary ingredient sharp dangerous. of re hills was A proof “consciously spondent’s appellant case was real that * * * produce probability ized that would all his conduct bring precise produce result it which did plaintiff.” Melby Anderson, harm to 266 S.D. our N.W. 137. It is conclusion under this record by appellant pre his admission cross-exemaination of vious evi accidents did constitute error. This kind of cautiously very un dence should be admitted avoid both only surprise prejudice fair and undue under restricted A not be confronted with circumstances. defendant should necessity meeting charges negligence proof with previous innumerable collateral acts. Neither should similar they unduly presented weigh manner acts against jury’s act, in the determination his defendant wrongful. consideration, was Under rule almost under universally prior recognized acts are inadmissible for this precautions, purpose. however, must be taken in all These prior reputation negligence, acts, or are ad cases where knowledge. It is our view that missible to show disadvantage by questions no unfair as to suffered his. previous accidents, that main was not thus ob- issue *12 unfairly appellant’s prejudiced scured and that case was by admitting his answers 'on cross-examination to show his knowledge alleged driving probable of the results of his inquiry. the occasion under carefully assignments
We have considered other and prejudicial are of the view that none involves error. judgment appeal
The from which the is taken is affirm- ed.
RUDOLPH, J., SMITH, JJ., P. and ROBERTS con- cur. (dissenting).
SICKEL, J. As I understand the decision Swanson, 1, 161, v. Antonen 74 S.D. 48 N.W.2d 28 A.L.R.2d it was error for the court to instruct ordinary negligence. case complaint alleges Plaintiffs’ defendant McLain was the driver of the car and that his willful and wanton miscon- injuries. undisputed duct was the cause of her It is that the plaintiff guest. awas prove, claims,
Defendant and introduced evidence to that he was not the driver of the car but that the car was being by driven at the time Schanck, of the accident who guest also a in the car. This evidence constituted in part the defense of McLain to the cause of action stated plaintiff’s complaint. gave following In view of this situation the court in- (S.R. 741): struction “You are instructed that if defendant’s agent gratuitous true, contention is Schanck became the or employee of the defendant Forrest McLain and his acts are binding upon the defendant McLain with the same force and by effect as if the himself, acts had been committed McLain and it would make no difference who drove the car if the guilty driver of willful and wanton misconduct as I you.” have herein defined those terms to guest person operating In the statute, absence of a responsible operation for the of an automobile must use safety guest. reasonable care for C.J.S., of the 60 Motor 399(1). Vehicles, § 534 operators guest re- are both owners Under statutes ordinary liability guests for
lieved of their common law
negligence,
liability
and wanton
is limited to willful
and the
399(3).
Vehicles, §
Id., C.J.S.,
Motor
misconduct.
injuries
liability
of an automobile
of the owner
operation
resulting
negligent
another with
of his car
permission,
relationship
his
of master
independently
operator,
exist
can
the owner and
'between
servant
Pinyan,
only by
express
Weber
of an
statute.
virtue
183, 185,
After a discussion of the distinction between negligence misconduct, the and willful court concluded that “* * * responsibility under the Act: absence some prin- other as that of master and servant or relation such cipal agent, permits of a vehicle who another owner operate injuries arising it is liable for from the latters’ ‘negligence’ herein, as that term is defined but that he is not injuries arising liable for from the driver’s willful misconduct (cid:127) liability or intoxication. alsoWe conclude that under sec- tion 14134 of the Vehicle Act was limited to acts of the arising owner or driver from the intoxication or willful mis- by may be, conduct the owner or driver as the case and that merely permits car, owner who another to drive his exists, where no other relation is not liable under either injuries guest arising statute for to a intoxication or willful misconduct of the driver.” quoted
The instruction above is in the It alternative. they driving instructs the that if find that defendant was plaintiff’s injury the car and that was due to his willful and plaintiff may wanton misconduct the recover. On the other hand the is also instructed in effect that if the should find that defendant the car but being injuries Schanck, that it was plaintiff driven and if the were caused the willful and wanton misconduct Schanck, defendant is liable. Since our statutes do not impose upon responsibiltiy defendant for willful and wanton Schanck, misconduct of the above instruction was erroneous my opinion judgment and in should be reversed. *14 APPLICATION OF HABECK AND MC GUIRE
(69 353) N. W.2d (File Opinion 28, 1955) No. 9470. filed March