Benton v. Davis, 18561

• Citation: 248 S.C. 402,150 S.E.2d 235
• Decision Date: 08 September 1966
• Docket Number: No. 18561,18561
• Parties: Lonnie Lee BENTON, Jr., by his Guardian ad Litem, Lonnie Lee Benton, Appellant, v. Donald Edward DAVIS, a minor, Harry L. Cannady, a minor, Herman Webster andMartschink Beer Distributors, Inc., Respondents.
• Court: United States State Supreme Court of South Carolina

Page 235

150 S.E.2d 235

248 S.C. 402

Lonnie Lee BENTON, Jr., by his Guardian ad Litem, Lonnie Lee

Benton, Appellant, v. Donald Edward DAVIS, a minor, Harry L. Cannady, a minor, Herman Webster andMartschink Beer Distributors, Inc., Respondents.

No. 18561.

Supreme Court of South Carolina.

Sept. 8, 1966.

Samuel C. Craven, Charleston, for appellant.

Sinkler, Gibbs & Simmons, Grimball & Cabaniss, Charleston, for respondents.

LEWIS, Justice.

The plaintiff brought this action to recover for injuries sustained in an automobile collision. A jury returned a verdict in favor of the defendants and plaintiff has appealed. The plaintiff alleges that the trial judge erred (1) in the denial of his motion for a directed verdict, (2) in rulings relative to the claim for damages, and (3) in certain portions of the charge to the jury.

The plaintiff, a minor, 19 years of age at the time, was injured on the afternoon of February 7, 1964, while riding as a passenger in a Volkswagen automobile owned by the defendant Herman Webster and driven at the time by the defendant Donald Edward Davis. Plaintiff's injuries were received when the driver lost control of the car and it overturned while they were passing a truck at a speed of 60 to 65 miles per hour on a narrow, winding road near Charleston, South Carolina. There were five persons in the automobile at the time of the accident--the plaintiff, the defendants Davis and Cannady, and two others, The defendant Cannady was sued upon the theory that the defendant Webster, the owner, had loaned the vehicle to Cannady who, in turn had authorized its operation by Davis, the driver. This action was brought by plaintiff through his guardian an litem against the above defendants to recover for the injuries received in the accident

Since the plaintiff was a guest pasenger in the vehicle, his right to recover in this action was governed by the provisions of Section 46--801 of the 1962 Code of Laws which, as construed by this Court, 'restricts liability to a guest to cases where injury has resulted from either intentional or reckless misconduct of the owner or operator of the motor vehicle.' Crocker v. Weathers, 240 S.C. 412, 126 S.E.2d 335.

The plaintiff alleged in his complaint that the driver of the automobile operated it at the time and place in a reckless manner and that the remaining defendants were liable for the driver's acts. The answers of the defendants interposed, among others, the defenses of contributory recklessness and assumption of risk as a bar to plaintiff's recovery. During the trial of the case, plaintiff moved for a directed verdict in his favor against the defendant Davis, the driver, upon the ground that the evidence conclusively showed recklessness on the part of the driver, and tht the defendants failed as a matter of law to establish contributory recklessness or assumption of risk on the part of plaintiff so as to bar recovery. This motion was refused by the trial judge, as was a motion by the defendants for a directed verdict in their favor, and all issues were submitted to the jury for determination, resulting in a verdict for the defendants.

The first question for determination is whether the trial judge erred in refusing plaintiff's motion for a directed verdict as to liability of the defendant Davis, the driver of the automobile. It is assumed for the purposes of this appeal that the defendant Davis was operating the vehicle at the time of the collision in a reckless manner. Therefore, to bar recovery, plaintiff must have been guilty of contributory recklessness. Ardis v. Griffin, 239 S.C. 529, 123 S.E.2d 876. The question then is narrowed to one of whether there was any evidence to require submission to the jury of the issue of contributory recklessness on the part of the plaintiff.

The plaintiff and the other occupants of the car in which he was riding were good friends, apparently all about the same age. The plaintiff had spent the night away from home and he and the others in the car got together around 11 o'clock A.M. on the day of the accident. They had been driving around Charleston County and visiting various places from that time until the wreck happened about 4 P.M. There is evidence to support the conclusion that the occupants of the car were just riding around drinking beer or liquor at various times and places during the day of the wreck; that plaintiff participated in the drinking at least to the extent of one can of beer; that plaintiff knew that the other members of the party, including the driver, had been drinking; and that at no time prior to the accident did plaintiff try, or indicate any desire, to leave the party. The investigating officer testified that the ordor of alcohol was strong in the automobile immediately after the wreck. The Volkswagen driven by the defendant Davis in this accident was the third automobile he had wrecked, all of which the plaintiff knew. In fact, the plaintiff and the defendant Davis, with Davis driving, were involved in a wreck about a week prior to the one here involved.

It is further inferable that the defendant Davis, the driver, was under the influence of intoxicants at the time of the collision and that such condition contributed as a proximate cause to the collision, and that he was known by the plaintiff to be a reckless driver.

Further review of the testimony would serve no useful purpose. It is well settled that questions as to the contributory negligence or recklessness of a guest in an automobile are ordinarily for determination by the jury and become a matter of law for determination by the court only when the evidence admits of but one reasonable inference thereabout. Lynch v. Alexander, 242 S.C. 208, 130 S.E.2d 563.

We have consistently recognized the principle that '(a) guest is barred from recovery for injuries caused by the host's reckless disregard of the guest's safety, if knowing of the host's reckless misconduct and the danger involved to said guest, the guest recklessly exposes himself thereto.' Crocker v. Weathers, supra. Nettles v. Your Ice Co., 191 S.C. 429, 4 S.E.2d 797; Augustine v. Christopoulo, 196 S.C. 381, 13 S.E.2d 918; Jackson v. Jackson, 234 S.C. 291, 108 S.E.2d 86; Ardis v. Griffin, supra, 239 S.C. 529, 123 S.E.2d 876; Lynch v. Alexander, supra, 242 S.C. 208, 130 S.E.2d 563; Gray v. Barnes, 244 S.C. 454, 137 S.E.2d 594.

The factual situation presented in this case is clearly susceptible of a reasonable inference of contributory recklessness on the part of the plaintiff and the issue was properly submitted to the jury for determination. There is evidence that plaintiff joined in a riding and drinking party from 11 A.M. until the wreck at 4 P.M., with the driver, known to be reckless, joining in the drinking; and, although he knew the driver was of a reckless disposition and drinking, continued in the vehicle until the wreck occurred, although ample opportunity existed for him to leave the car. Such conduct would support a finding by the jury that the plaintiff recklessly...