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June 12, 1957


The opinion of the court was delivered by: Stukes, Chief Justice.

June 12, 1957.

This is an appeal from a judgment for $5,000.00 damages for personal injuries which were received in a motor vehicle accident. Plaintiff was the guest passenger of her father-in-law in his pick-up truck and her right is governed by the statute which is Section 46-801 of the Code of 1952, which follows:

"No person transported by an owner or operator of a motor vehicle as his guest without payment for such transportation shall have a cause of action for damages against such motor vehicle or its owner or operator for injury, death or loss in case of an accident unless such accident shall have been intentional on the part of such owner or operator or caused by his heedlessness or his reckless disregard of the rights of others."

They had left their home before daylight and returning they stopped at Newberry for breakfast, after which, according to his own admission, he increased his speed. His passengers testified that he attained 70 miles an hour just before reaching the town of Fountain Inn and was warned several times by plaintiff that his high speed was dangerous, that a tire might blow out, but he paid no attention. He admitted traveling at from 55 to 60 miles per hour or possibly more, and that he was "taking a risk." As he reached the town limits he applied his brakes, which he testified caused his load to shift its weight to the weak tire, which blew out, the truck overturned and plaintiff was seriously injured. She testified that the truck was unsteady in the road, shifting from side to side at the high speed it was traveling.

Timely motions by the defendant for nonsuit and directed verdict were overruled. The principal ground of them was that the only reasonable inference from the evidence was that the proximate cause of the accident was the blowout of the tire, which does not support an action under the guest statute. Defendant's subsequent motion for judgment n. o. v. preserved the grounds upon which the prior motions were made and added the contention that the verdict for plaintiff for actual damages negatives a finding by the jury of recklessness, willfullness and wantonness, which is necessary for recovery under the guest statute. It was overruled. Failing in the foregoing motions, defendant moved for new trial upon alleged error of the court in denying certain requested instructions to the jury, but the exceptions thereabout were not argued in this court and are considered abandoned. New trial was refused and appeal followed.

The first question is upon the premise that there can be no recovery by a guest whose injury resulted from the blowout of a tire. This overlooks the allegations and evidence of acts of negligence of the defendant operator of the vehicle.

It is uncontradicted that it was a very warm day — 98 degrees — and defendant was charged with the common knowledge that such a high temperature increases the danger of a blowout of a weak tire. He knew of the latter because he had borrowed it and had put it on his truck himself. He disregarded the repeated warnings of his passenger of the danger of the high speed in which he persisted, particularly because of the danger of the blowout of a tire. He admitted, in effect, the added danger which was caused by his shifting cargo.

Maland v. Tesdall, 232 Iowa 959, 5 N.W.2d 327, 330 was a guest case. Defendant claimed that a blowout caused the accident. There was evidence of excessive speed and unheeded warnings to the driver, as here. The court held the evidence sufficient, in these words, "to warrant a finding of heedless disregard for, or indifference to, the rights and safety of decedent * * *. This is the test of reckless conduct." Wolfe v. Marks, 277 Mich. 154, 269 N.W. 125, was under a guest statute which required for recovery defendant's gross negligence or wilfull and wanton misconduct. Verdict was affirmed upon evidence of blowout of tire in which there was a boot. The occupants of the car smelled burning rubber and warned the driver-defendant who proceeded at high speed, although asked to stop. In Cooper v. Chapman, Ark. 1956, 289 S.W.2d 686, recovery by guest was sustained upon excessive speed after warnings by passengers, again as here. The statute required wilfullness and wantonness.

In Glazer v. Grob, 136 Me. 123, 3 A.2d 895, a left rear tire blew out and the car left the highway and struck a pole. The action was brought under a guest statute requiring gross negligence. The court held that it was common knowledge that defective tires are a frequent cause of automobile accidents but that the mere fact that the tire has been driven some distance and blows out does not of itself make the driver of the automobile liable. In addition to the blowout, the unsafe condition of the tire must be established and that its condition was known to the owner and operator or could have been discovered by the exercise of reasonable care. The evidence showed the car was traveling 60 miles an hour or faster, and the defendant was asked to drive slower. As stated in Splawn v. Wright, 198 Ark. 197, 128 S.W.2d 248, whether an automobile is being operated in such a manner as to amount to wanton and wilfull conduct in disregard of the rights of others must be determined by the facts and circumstances of each individual case. It is one thing to persistently pursue a course of driving in a reckless and dangerous manner over the protest of the occupant of the car, and an entirely different thing to act in a negligent manner on the spur of the moment.

Harlow v. Dan Dusen, 137 Cal.App.2d 547, 290 P.2d 911, 913, was an action for the death of a guest passenger. The driver was making 65 to 70 miles per hour and started to pass another car. His automobile went into a spin. The California guest statute requires wilfull misconduct. The court, affirming the judgment, said:

"Although, as stated by appellant, excessive speed alone is not necessarily wilfull misconduct, nevertheless, as pointed out in respondents' brief, `speed is an important element to be considered since it, coupled with other circumstances, may constitute willful misconduct'. In several reported cases, a speed of 60 miles per hour has been held to constitute willful misconduct when conjoined with such facts as a damp highway, a misty night requiring windshield wipers, etc. * * * From such evidence the jury could well believe that the case was one coming within the purview of Francesconi v. Belluomini, 28 Cal.App.2d 701, 705, 83 P.2d 298, 300, where it is said: `To us it seems clear that one who, while driving an automobile, knowingly flirts with danger and without necessity or emergency compelling him, "takes a chance" on killing or injuring himself and others, who may be so unfortunate as to be riding with him, is guilty of willful misconduct.'"

Crupe v. Spicuzza, Mo. App. 1935, 86 S.W.2d 347, 351, was not a guest statute case but involved excessive speed and the blowout of a tire. The following well-reasoned excerpt from the opinion is pertinent to the facts of the case in hand: "Nor was the blowout to be regarded as an efficient intervening cause, so unusual and improbable as not reasonably to have been anticipated by defendant, and therefore sufficient, as defendant argues, to have broken the chain of causal connection between the negligent speed of the automobile and the resulting injury. Instead it is again a matter of common knowledge that blowouts most frequently occur as the result of the heat and vibration which attend high speed of operation. It would follow, therefore, that the speed, the blowout, and the injury were all so linked together in a succession of events as for all of them, in a legal contemplation, to have become a continuous whole, and to have entitled the jury, as it was permitted to do by the instruction, to find that the negligent speed, which was the first event in order, was primarily productive of the injury."

The effect of the guest statutes and decisions thereunder are discussed in 4 Blashfield, Perm. Ed., 343 et seq., chapter 64. It is stated at page 389, Sec. 2323, as follows: "Whether or not the facts in any particular situation make out a case entitling an invited guest or gratuitous passenger to recover, or, otherwise stated, whether the operator's acts or omissions in the operation of the car constitute a breach of his duty to the guest in any specific case, cannot usually be answered by stating any one element in the situation or one item of the driver's conduct, but everything is to be weighed together. Thus it is ordinarily a question of fact to be determined by the jury or the court sitting without a jury, upon a consideration of all relevant circumstances, whether the operator has or has not exercised the requisite care toward a guest, alike where the requirement is one of ordinary care, as under the common-law doctrine in most states, or whether it is some less degree of care, as under the rule adopted by a few states as a part of their common law or the various rules of the guest statutes, in any case where fair-minded men could find for either party upon the evidence. * * * Whether or not a host has been guilty of wilfull or wanton misconduct, gross negligence, or other conduct denounced by the various statutes previously discussed is to be determined from the circumstances of each case, and every act or omission entering into the particular happening must be considered in connection with all the other circumstances. It is not necessary that any single circumstance should in itself afford a basis for the conclusion that the host's conduct has been of the kind condemned by the law, but it is sufficient if such a conclusion is warranted by a combination of circumstances." Further at page 402: ...

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