No. 12396 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1973 

KAREN RUSK, 

Plaintiff and Appellant, 

-vs - 

ELOISE P. SKILLMAN, 

Defendant and Respondent. 

Appeal from: District Court of the First Judicial District, 

Honorable Gordon R. Bennett, Judge presiding. 

Counsel of Record: 

For Appellant : 

Berger, Anderson, Sinclair and Murphy, Billings, 

Montana. 

Arnold Berger argued, Billings, Montana. 

For Respondent: 

Pedersen and Herndon, Billings, Montana. 

Donald Herndon argued, Billings, Montana. 

Submitted: May 31, 1973 

Decided: JUL 2 4 1973 

Filed : JuL 2 4 1973 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

This is a guest passenger personal injury action against 

the driver of the automobile in which plaintiff was a passenger 

tried in the district court of Broadwater County. The court on 

August 9, 1972, ordered dismissed the claim against defendant 

Carlton Sherwood, by stipulation of all parties. On September 

22, 1972, the court made findings of fact and conclusions of 

law and entered judgment for defendant Eloise Skillman. From 

that judgment plaintiff Karen Rusk appeals. 

From the trial record it appears the automobile accident 

which is the subject of this litigation occurred on June 21, 

1969, at about 1:00 p.m. on U.S. Highway 12 near the west end 

of the Missouri River bridge, approximately one mile northwest 

of Townsend, Montana. 

The morning of June 21, 1969, Eloise Skillman and Karen 

Rusk left their respective homes in Livingston and proceeded in 

Ifiss Skillman's car to Helena by way of Townsend. The trip was 

a pleasure outing and Miss Rusk incidentally intended to look 

at an automobile in Helena which her father was considering 

buying. Miss Rusk contributed $5 toward gasoline expense and 

Miss Skillman drove her automobile, a 1966 Buick which she had 

purchased some ten days earlier. 

Immediately prior to the accident, Miss Skillman was proceeding out of Townsend toward Helena and, according to the trial 

court's findings of fact, exceeding the posted 55 mile per hour 

speed limit in that area, but was not going in excess of 65 miles 

per hour. Miss Skillman contended that as she approached the 

Missouri River Bridge she was unable to see a vehicle driven by 

Carlton Sherwood at the opposite end of the bridge until she was 

almost upon the bridge. The Sherwood vehicle was either stopped 

or proceeding very slowly, preparatory to making a left hand turn 

onto a gravel road. This gravel road is known as the Indian 

Creek Road and connects with U.S. Highway 12 near the west end 
of the Missouri River bridge. Miss Skillman testified that 

upon seeing the Sherwood vehicle and realizing it was stopped 

she braked her vehicle hard and swerved left to avoid the 

Sherwood vehicle. She stated she believed her car went crassways 

between the two traffic lanes and she never saw the vehicle 

driven by Reed Palmer in the oncoming lane of traffic. She 

collided with the Palmer vehicle. 

Reed Palmer testified that immediately prior to the collision he was approaching the bridge, proceeding east toward Townsend at a speed of about 55 miles per hour. He first observed 

the Sherwood vehicle slow down as it was proceeding west and 

the driver gave an arm signal indicating a left hand turn. He 

stated that as he came near the Sherwood vehicle he observed the 

Skillman vehicle come over the far end of the bridge, apparently 

going at a high rate of speed. Palmer testified that he then 

began to slow down and, upon observing the Skillman vehicle 

continue to rapidly approach him, he slammed on his brakes and 

attempted to swerve but collided with the Skillman vehicle. The 

collision occurred in his lane of traffic. The Sherwood vehicle 

was not involved in the collision. 

A Montana highway patrolman who investigated the accident 

testified that the length of the skidmarks left by the Skillman 

vehicle was about 180 feet and the collision occurred on the 

side of the highway properly occupied by the Palmer vehicle. 

The patrolman issued a traffic citation to Miss Skillman for 

operating her vehicle at a speed in excess of the safe speed 

having due regard for the circumstances then and there existing. 

Plaintiff brings several issues for review, most relate 

to specific findings of fact made by the trial court which she 

maintains were not supported by substancial evidence before the 

court. The remaining issues concern whether the court was 

correct in designating Miss Rusk a "guest passenger" and whether 

the court was correct in finding Miss Skillman guilty of ordinary 

rather than gross negligence. 
The trial court's designation of Miss Rusk as a "guest 

passenger" rather than a "passenger for hire" is a correct application of section 32-1113, R.C.M. 1947. Under section 32-1113, 

I' if the passenger is riding in said motor vehicle as a guest or 

by invitation and not for hire" the proof of gross negligence 

rather than ordinary negligence is required to establish liability. 

In an action for personal injuries resulting from an automobile accident where it appears that plaintiff accepted an invitation to accompany defendant on a trip, the burden is on the 

plaintiff to show any change in relationship by virtue of subsequent agreement. Copp v. Van Hise, 119 F.2d 691. 

No testimony was introduced by Miss Rusk to indicate her 

$5 contribution was anything more than an incidental, friendly 

gratuity rather than legal consideration for services to be 

rendered. 

As to the remaining issues for review, we find merit in 

plaintiff's contention that the trial court went outside the 

evidence properly before it to make findings of fact concerning 

the inherently hazardous condition of the highway as maintained 

by the state. 

Conversely, we find from examination of the trial record, 

there was sufficient evidence, considered as a whole, before 

the court to establish that Miss Skillman's operation of her 

vehicle immediately prior to the accident constituted "gross 

negligence" and that such gross negligence was the proximate cause 

of the injuries sustained by Miss Rusk in the accident. 

We agree, as a general proposition, highway intersections 

with gravel roads and bridge abutments along highways are settings 

where accidents occur more frequently than other highway areas. 

However, it does appear from the trial record, particularly the 

testimony of the highway patrolman, that had Miss Skillman (1) 

been observing the posted speed limit in the area of the accident, 

(2) maintained a proper lookout in order to observe the Sherwood 

vehicle when it first came into her line of vision, (3) applied 
her brakes at the point where she testified she first saw the 

Sherwood vehicle (which appears to be some considerable distance 

ahead of the point her skid marks began to appear on the highway), 

and (4) guided her vehicle to the right hand shoulder of the 

highway rather than veering to the left and into the oncoming 

lane, she could have avoided the accident in Palmer's lane of 

traffic. 

Legal writers repudiate the entire premise that the concept of "negligence" can and should be delineated into degrees. 

Prosser, Law of Torts, 4th Ed., Ch. 5, 534, p. 182, states: 

"Nevertheless, the idea of degrees of negligence, or 

at least some kind of aggravated negligence which will 

result in liability where ordinary negligence will not, 

has been adopted in a number of statutes, which have 

forced the courts,however reluctantly, to attempt to do 

again what they declared that they could not do, and 

to make such efforts as are possible to supply a definition for the undefinable. Some of these statutes 

have attempted to codify the entire doctrine, or apply 

it to particular situations such as bailments, criminal 

negligence, or contributory negligence cases. Most of 

them, however, are automobile guest statutes. II 

Montana's automobile guest statute places the task upon 

the courts to define the undefinable in differentiating between 

"ordinary" and "gross" negligence. The concept of gross negligence, as it has developed by precedent and application, shows 

a dichotomy between civil tort law and criminal law. Such 

I I definitional terms as malignant mind" and "willful and wanton 

disregard of consequences" are applied only to the criminal concept. 

Holland v. Konda, 142 Mont. 536, 543, 385 P.2d 272, provides 

an example of automobile tort gross negligence: 

"AS the plaintiff *was a guest in the car of appellant 

Konda, the duties owed her by the driver were governed 

by R.C.M. $5 32-1113 to 32-1115, inclusive. The substance of these provisions is that the guest assumes, 

as between himself and the driver, the ordinary negligence of the driver. Thus, in order for the driver to 

be liable in damages to the guest, his actions must be 

I those which are termed 'grossly negligent. This court 

I had defined ross negligence as the failure to use 

sli ht care.' Batchoff v. Craney, 119 Mont. 15/, 1.12 

*(Emphasis added). 
See also: Heen v. Tiddy, 151 Mont. 265, 442 P.2d 434. 

Nangle v. Northern Pacific Ry. Co., 96 Mont. 512, 522, 32 

P.2d 11, states: 

11 t Gross negligence' and 'reckless operation' are 

variously defined by different courts. Most, if 

not all, of them are of little assistance in the 

classification of various states of facts within 

or without such definitions. Under the construction 

of this statute herein announced, whether 'gross 

negligence' and 'reckless operation' are synonymous 

or said to be different in meaning one from the 

other is immaterial, for if the conduct of the 

driver of the automobile was in fact something more 

than ordinary negligence, it matters not, under the 

Act in question, [Montana Automobile Guest Statute1 - - 

by what name it is called, ar by what adjective it 

may be described; the defendant is nevertheless 

liable. " (Emphasis added). 

See also: Carter v. Miller, 140 Mont. 426, 372 .~.2d 421. 

Applying "failure to use slight care" and "something more than ordinary negligence" to the facts of the instant 

case, we must determine that the acts and omissions of defendant 

Skillman, considered in their entirety, constitute gross negligence and impart liability to her. 

The judgment is reversed and the cause remanded to the 

district court for trial on the 

Justice 
IN THE SUPREME COURT OF THE STATE OF MONTANA 

- 

No, 12396 

KAREN RUSK, 

Plaintiff and Appellant, 

VS . ELOISE P. SKILLMAN, 

Defendant and Respondent 

ORDER AMENDING OPINION AND 

DENYING PETITION FOR REHEARING 

PER CUIBICAM: 

~es~ondent 's petition for rehearing in the above entitled 

matter is hereby denied. 

It appearing that surnmry judgment was entered by the trial 

court prior to presentation of defendant SkfPHman's defense herein, 

IT IS ORDERED that the Opinion dated July 24, 1373, be 

amended by striking the final sentence of the Opinion and substituting the following therefor: 

1t The summary judgment against defendant Skillman 

is vacated and the cause against that defendant is 

remanded to the district court for a new trial on all 

issues, I1 

DATED this 15th day of October, 1973.