*1 enough convincing plain clear, overcome unequivocal not agree with what wording cannot I therefore deed. the written 52(a) action with the Court's nor an intrusion of RCP I believe is long stability recorded deeds. which removes I affirm. would SHEFFER,
EGAN, Appellant Respondent v. 174) (201 N.W.2d 1972) (File Opinion October No. 10994. filed *2 Matthews, Pruitt, Jorgensen, Acie W. Sioux Willy, Matthews & Falls, appellant. for defendant Smith, Evans, Hoy, Carleton R. Michael
Davenport, & Hurwitz Falls, respondent. Pieplow, Sioux F. *3 Judge.
WOLLMAN, plaintiff appeal in for from a verdict favor This is an injuries damages personal in a one-car accident while for suffered guest. riding in defendant's automobile was acquainted in sometime 1964 and defendant became Plaintiff Washington High attending they in School Sioux started when good during Falls, They friends their South Dakota. remained during high they days, which time visited each other's school graduating and drove each other's automobiles. After from homes high spring school in the and defendant enrolled Institute, Minnesota, Minneapolis, Dunwoody Industrial in they apartment year with where shared an friend from fall attending Boe, Falls, Timothy who also the Institute. Sioux was Dunwoody boys returned to fall three Institute the summer vacation. after plaintiff, Timothy November Boe
On defendant Thanksgiving Minneapolis Sioux Falls from to returned holiday young man Sioux with another Falls who also attending During trip Institute. the course back Sioux arrangements Falls, plaintiff and defendant made to meet evening. arrangements In accordance with such defendant drove approximately p.m. plaintiff's home at on November 26th. Jack, two drove the Union From there a 3.2 beer tavern in Falls, they staying where drank some 3.2 After beer. at the Sioux time, defendant for a short Union Jack Falls in Sioux Avenue House on Minnesota Charlie's Pizza south midnight, premises time the remained at which there until during evening. joined the course They were closed for the were evening boys were at Timothy Boe and while the three closing time, beer consumed 3.2 until Charlie's Pizza blouse drinking boy equal with each an of beer. Defendant about amount girl former at Pizza House and an met his friend Charlie's argument during evening, with which caused her sometime quite upset. defendant become evening, plaintiff,
After Charlie's Pizza House closed for the got Timothy Boe into defendant's 1956 Chevrolet Timothy automobile. sat in seat sat Boe the back engine, passenger place the front In seat. of a stock car inch) engine powered (presumably a 327 327 cubic which de- fendant, studying Dunwoody who was auto mechanics In- stitute, installing performance parts had modified some go rapidly car to enable the accelerate more and to faster. manually operated The car had a transmission with the hand gearshift speedometer on the floor. The did not work. entering
After the car and defendant had some conversation jumped into the "burning car, out the cobs." Plaintiff testified that started the engine "* [*] [*] was him, know shoved * *4 just more — 'What are pumping in first or less, gear, the foot like, you and rammed well, going feed, it was just do, pumping through just burn the cobs out?' And he thing all three the between gas, gears and us, I asked * [*] you cross-examination, plaintiff ". On testified that after defendant jumped engine up into had the car and revved the asked him, you "Did out bum the cobs?" Plaintiff conceded that "to burn spin the high out cobs" means the tires and drive at a rate speed and he of that knew that defendant would drive aat speed.1 got rate of Defendant testified that after into the car said, go "Let's burn the cobs out of it." Defendant testi- expression this engine fied that means go to clean out the fast. injuries
1. Because of the he suffered the very accident had a limited re- night collection the that events on occuried the of the accident. drove south Immediately conversation after Plaintiff testified past the Drive-In. Barrel on Avenue Minnesota sitting boy girl with another friend former he saw defendant's jested with Drive-In and he at the Barrel in an automobile that he did not see testified about the fact. girl not recall the Drive-In did friend at Barrel his former girl hearing any former conversation from friend. away parked near where he was
As defendant from rapidly not slow and did House accelerated Pizza he Charlie's A witness testified Minnesota Avenue. as he drove south on down preparing Minnesota Avenue to turn on south as he was green light defendant's automobile ran 41st Street on a light against through speed ap- the red at a the intersection proximately per witness' car and an- miles hour between completed turn on to car which had almost its Minnesota other Street, missing narrowly both automobiles. De- from 41st Avenue top lost automobile on the curve on the control fendant with the result the automobile the hill on south Minnesota around, hit and turned over. an embankment skidded Timothy reached the bottom Boe testified that when car Avenue, "I heard him hill on south Minnesota [plaintiff] 'Sheffer,' yell, him Dan's name. I heard and then he leaned call ignition again and then the the car went off back over top I blacked out because then we were at the after that (cid:127)— hill and that's accident happened]". [when Avenue, familiar with south Minnesota as was Defendant was stopped plaintiff. whether He that he had no idea he at testified light stoplight 33rd and Minnesota or whether at there green. stop stoplight He testified that he didn't for the or red Minnesota, stated that he could not remember what but 41st light He testified he couldn't either. remember color Timothy stop him Boe ever advised whether *5 pleaded guilty paid or down. Defendant a fine on a slow driving charge driving filed a result of reckless as led accident. to the by argues not caused accident was
Defendant plaintiff and defendant in that willful and wanton misconduct high joint venture, driving engaged namely, rate at a were a thereto, speed, corresponding thrills with the relative on defendant's there could no willful and misconduct be wanton part acquiescence part plaintiff. We be on the because of joint joint enterprise a lieve that the does not indicate evidence operation of de venture and defendant in the between Zeigler Ryan, v. fendant's automobile at of the accident. the time 767; Kluever, 579, 110, 65 S.D. 271 N.W. v. 82 S.D. Fredrickson 346; Park, Inc., 624, 152 N.W.2d Miller v. Baken 84 S.D. 175 N.W. 2d 605. finding jury's support
The was sufficient evidence guilty that defendant was misconduct of willful wanton See, g., Anderson, Melby defined our earlier v. decisions. e. 249, 135; 481, Huebner, 64 S.D. N.W. Wentzel v. 78 S.D. stronger N.W.2d 695. The evidence here was than it was in Brew Mattern, 356, er v. 85 S.D. 182 N.W.2d inasmuch as defendant car, personally rapidly a modified him to accelerate go night speed, per at rate of least hour 60 miles at through thoroughfare stoplight busy at least one aon with which familiar, missing narrowly he was other automobiles that had the right-of-way him. over
Defendant
contends
assumed
the risk of
riding in
defendant's
properly
automobile.
in
assumption
structed as to the defense
or risk. There was
competent
support
finding
jury's
evidence to
Viewing
injury.
light
not assumed the risk of
the evidence
plaintiff,
to the
say
most favorable
we cannot
as a matter of law
Huebner,
assumed
the risk. Wentzel v.
78 S.D.
695; Jennings
Hodges,
104 N.W.2d
v.
''No operator the owner or guest motor vehicle as his compensation without *6 690 action for cause of have transportation shall
such injury, operator damages against owner or such accident, willfully loss, or death, he has if of or in case brought injury upon ordinary him- the of care want self." refusing argues instruct court erred that the citing negligence, contributory jury the
the on issue Wagaman, 186, 393, where this court 40 N.W.2d 73 S.D. Stoll v. (then 44.0362) contributory means that SDC SDCL32-34-2 said that host-guest negligence plaintiff defense in a case. is a jury generally in the words of the court instructed the The statute, request guest that the court Defendant's 32-34-1. SDCL willfully jury he had recover if could not instruct the himself, brought injury ordinary upon SD- the want of care or 32-34-2, not that the defendant did was refused. We conclude CL give the the re- prejudice reason of court's refusal suffer quested did not warrant an instruction instruction. evidence brought willfully not if the could recover he that defendant argument upon injury that it himself. Defendant's operation promoted the a automobile at rate who testimony premised speed on the that after defendant had is automobile, said, pumped either the accelerator on do, or, going you burn the cobs out?" "Let's burn are "What out it." the cobs duty that the court under a
While it is true trial is applicable theory jury law where the of law is instruct the evidence, Hyronimus, by competent supported Zakrzewski v. 81 572, Park, Inc., 624, 428, v. Baken 136 N.W.2d Miller S.D. S.D. amplify it is not error to refuse to instructions 175 N.W.2d given substantially principle cover the embodied in re Hoisington, quested instructions. Peters v. 37 N.W. Dronebarger, 410; Jorgenson v. S.D. 2d 143 N.W.2d 869. arguendo Assuming that defendant's version of the events is say, it", did "Let's burn cobs out of correct prejudicied by follow that defendant does not court's fail give said, requested instruction. As we have ure to this con- finding part a that he would not warrant duct Moreover, brought injury willfully upon if it were himself.2 care, negligence ordinary species of we want of considered sufficiently presented defense think that it was *7 light assumption risk in the the court's instruction under constituting ordinary particular specified want of acts as care. contends that the court should have in- jury only structed the that could recover for conscious suffering instructing pain jury and court erred damage plaintiff's that claimed elements of included "The anguish suffering, pain, experienced reasonably and mental experienced to be injury certain as future a result of the * * * Plaintiff testified that he had no recollection of suf- fering length time; pain however, for a considerable one of witnesses, patient room, hospital plaintiff's same testified day plaintiff's hospitalization second or third plain- that on the suffering complained Although pains. tiff head it would proper been for express the trial court to have have stated in damages jury only to the words could be awarded for con- given pain, effect of the scious instruction was to tell the only pain recover could for the of which he was con- scious, e., experienced. Heirigs, i. that which he Plank v. N.W.2d 193.
Finally, $8,500 contends the verdict of given is excessive and was passion under the influence of prejudice special damages in view of the fact the total in by plaintiff $1,532.92, only curred being amounted to with no claim wages. made loss of
Plaintiff, years who was 19 accident, old at the time of the suffered cerebral contusion and a fractured left wrist as a result hospitalized of the accident and was from November 28th to brought December 1968. When he was first hospital to the plaintiff was comatose way and remained that days, for several disregarded jested plaintiff may 2. have We the evidence that have with or taunted de- girl past fendant about his former friend as the Barrel Drive-In inasmuch any presumably did not recall such conversation was not influenced by it. during periods of consciousness and then he had which time again days four five lapsed After he be- into unconsciousness. responsive point he was bellicose in his actions to the where came disturbing patients to the it other became the extent to psychiatric hospital closed staff move him to a required to closely and where there watched more he could be where ward During help specialized to attend him. time be would behavior, actions and mannerisms. of his not conscious neurosurgeon plaintiff's was called in consultation assist who regular physician testified that intractable behavior re- injury brain he had received in the accident. As from the sulted neurosurgeon began improve apparent became controlling right leg difficulty arm and he had some physio- with his balance. Plaintiff was started on had some trouble right try help therapy the return of function in the extremities. neurosurgeon *8 by examination of his last At the time Janu- 8, 1971, experienced sensory plainitff mild ary still some loss in right extremity side which manifested lower itself in and in increased tone and reflexes awkwardness in the increased neurosurgeon neurological right leg. testified that deficit scoliosis, permanent. Plaintiff also has some mild or curva- will be ture, spine of the dorsal as a result accident. Plaintiff testi- nervousness, from loss of balance he suffers fied tightens leg right up acquires he and that a lhat his noticeable chilly weather is when the he exoeriences a tremor limo of the arm a result fracture wrist. Plaintiff as in testified longer sports particioate is no able such he softball things considered, All we basketball. conclude damages were not by awarded excessive and were not actuated Heirigs, prejudice. supra; Plank v. oassion Weidner v. Line 8, back, 597; Mobridge, 140 N.W.2d 82 S.D. Schuler v. Citv of 44 488, N.W. 281. S.D.
Affirmed. J„ HANSON, DOYLE, JJ„ P. and BIEGELMEIER and concur. WINANS, J„ dissents.
WINANS, Judge (dissenting). In my elaboration. without and will state reasons I dissent (1960), Huebner, 104 N.W.2d Wentzel v. question an instruction defendant was entitled to of whether negligence contributory plaintiff's what is under on the issue of statement, "It SDCL 32-34-2 was taken care of this court's now clearly appears request so defendant's the substance of dealing appears of with the defenses the court's instructions negligence risk, and, contributory assumption of read as whole, fairly the court's instructions submitted those issues jury". Nowhere in this court take care of the case does the negligence contributory defense of and I lean to the view that de- requested fendant was entitled to the It instruction. is defense specifically provided Assumption under the law for the statute. of risk was taken care the court is not a substitute necessarily and neither does embrace the law same theories as negligence. James, contributory Harper In does The Law of Torts, 22.2, following: page Vol. we find the § negligence thought
"Contributory has sometimes been risk, aspect assumption to be no more than an so recovery is barred from under the maxim injuria. too, explanation, fit volenti non This would form, present complete warrant the rule in its aas bar notions, however, action. The two do not cover ground many the same and in situations do not even though they overlap, may. Assumption of risk involves negation duty; negligence contributory defendant's duty. is a to a Assumption defense breach such of risk *9 may perfectly involve reasonable conduct on negligence part; contributory Assumption never does. typically voluntary risk involves or deliberate incurr- ing peril; negligence contributory of known frequently danger. involves the inadvertent failure to Only notice keep confusion can come from separate failure these legal two strands of doctrine." Annot., A.L.R.2d, beginning page See 1218.
The difference between the conduct of the driver of the car guests his in this is case driver had hold of the gas pedal. upon Of steering course his foot it was wheel drinking difference, were and if drink- important but all is an this willful and wanton ing important on which to base issue an was ought driver, at least part be of the conduct might negli- enough contributory find which the important coupled gence part when with the other facts on the traveling speed with which the automobile was case. of this anything par- appear have been was not does ticularly a matter of fact I think he and as active- concerned going do, it, you gave approval "What are burn the ly did the cobs out it". The not or "Let's burn out?" cobs go- with the driver about remonstrated appear to have thoroughfare through busy ing stoplights with which on a missing familiar, narrowly automobiles that had other were all plain to right-of-way It is me from the driver. the record that over engaged just parties ride in which all of the were thrill this injuries occurred, injury I think could have been some up- under these circumstances in order to expected to occur and requested the defense entitled verdict in- hold struction. CO., Appellant INS. v. KLUCKMAN et al.
DAIRYLAND
Respondents (201 209) W.N. 2d (File Opinion 1972) 10991. October No. filed