Campbell v. Paschal, No. 0772

CourtCourt of Appeals of South Carolina
Writing for the CourtGOOLSBY
Citation290 S.C. 1,347 S.E.2d 892
PartiesClarence Edward CAMPBELL, Respondent, v. Kimberly Kaye PASCHAL, Mark W. Paschal, and John Paschal, Jr. Appeal of John PASCHAL, Jr. . Heard
Decision Date28 May 1986
Docket NumberNo. 0772

Page 892

347 S.E.2d 892
290 S.C. 1
Clarence Edward CAMPBELL, Respondent,
v.
Kimberly Kaye PASCHAL, Mark W. Paschal, and John Paschal, Jr.
Appeal of John PASCHAL, Jr.
No. 0772.
Court of Appeals of South Carolina.
Heard May 28, 1986.
Decided Aug. 4, 1986.

Page 894

[290 S.C. 3] A. Parker Barnes of Barnes, Davis & Tupper, Beaufort, A. Camden Lewis and Daryl G. Hawkins of Lewis, Babcock, Gregory & Pleicones, Columbia, for appellant.

James B. Richardson, Jr., Columbia and Samuel Svalina, of Dowling, Sanders, Dukes & Svalina, Beaufort, for respondent.

[290 S.C. 4] GOOLSBY, Judge:

This action arises out of a motor vehicle accident involving the plaintiff Clarence Edward Campbell and one of the defendants, Kimberly Kaye Paschal. The other defendants are Kimberly's father, John Paschal, Jr., and her brother, Mark W. Paschal, the owner of the car Kimberly was driving when the accident occurred. In the trial court, the jury returned a verdict for Campbell against Kimberly and John Paschal in the amount of $260,000 actual damages. Only John Paschal appeals. We affirm.

The questions on appeal concern (1) the trial court's direction of a verdict against Kimberly on the issue of liability, (2) the applicability of the family purpose doctrine where the head of the household is not the title owner of the vehicle involved in the accident, (3) the failure of the trial court to strike the allegations of agency from the

Page 895

complaint, (4) the failure of the trial court to question a juror seen talking with Campbell during a lunch recess, (5) an unintroduced exhibit challenged as hearsay and as being undisclosed before trial in answer to interrogatories and the limitation placed by the trial court on the cross-examination of the witness through whom the exhibit was proffered, (6) the trial court's charge regarding the duty owed by motorists to keep a proper lookout, (7) the consideration by the jury of future medical expenses as an element of damages, (8) the admissibility of certain testimony offered by Campbell's economic loss expert, (9) the trial court's failure to charge certain federal statutes of which it had taken judicial notice, and (10) the admissibility of opinion testimony as to the probability of Campbell being medically discharged from the United States Marine Corps.

I.

Paschal argues that the trial court erred in directing a verdict against Kimberly on the issue of liability because there was evidence in the record from which a jury could find that Campbell was contributorily negligent. We disagree.

[290 S.C. 5] In deciding a motion for directed verdict, the evidence and all reasonable inferences that can be drawn therefrom must be viewed in the light most favorable to the party opposing the motion. Cope v. Eckert, 284 S.C. 516, 327 S.E.2d 367 (Ct.App.1985). If more than one reasonable inference can be drawn from the evidence, the case should be submitted to the jury. Scott v. Meek, 230 S.C. 310, 95 S.E.2d 619 (1956). Generally, the issues of negligence and contributory negligence are questions of fact for the jury. Williams v. Kinney, 267 S.C. 163, 226 S.E.2d 555 (1976); Cope v. Eckert, supra. Where the evidence is susceptible of only one inference, however, contributory negligence becomes a question of law for the court. House v. European Health Spa, 269 S.C. 644, 239 S.E.2d 653 (1977).

In this case, the evidence viewed in the light most favorable to Kimberly is susceptible of only the inference that Kimberly's negligence alone proximately caused the accident.

On August 30, 1981, at or about 7:00 p.m., Kimberly was driving a 1978 Camaro westbound on South Carolina Highway 170 in Beaufort County. Campbell was riding a motorcycle, which had its headlight on, and was traveling eastbound on Highway 170. Kimberly and Campbell collided at the intersection of Highway 170 and South Carolina Highway 280.

The intersection is controlled by a light that flashes yellow for traffic on Highway 170 and red for traffic on Highway 280. An "Intersection Ahead" sign is posted approximately two-tenths of a mile before the intersection for motorists traveling eastbound on Highway 170. The speed limit on Highway 170 is 55 miles per hour.

Just prior to the collision, Kimberly signaled she was turning left onto Highway 280. According to Campbell and to a South Carolina Highway Patrolman who witnessed the accident, Kimberly suddenly turned left in front of Campbell when Campbell was no more than fifteen feet away from her vehicle.

Campbell's motorcycle struck Kimberly's car. The collision sent Campbell catapulting into the air. He landed on the ground after hitting a vehicle stopped at the northbound stop sign on Highway 280.

[290 S.C. 6] The patrolman first observed the motorcycle when it was 200 or 300 yards from the intersection. In the patrolman's opinion, Campbell was going only 45 or 50 miles per hour as he approached the intersection. The patrolman testified that Campbell could not have done anything to have avoided the accident.

Wyman Amsler, another witness to the accident and the person whose automobile Campbell's body hit, testified that he heard Campbell's motorcycle deaccelerate prior to Kimberly turning in front of Campbell. He estimated that Campbell was going 38 to 40 miles an hour when the accident occurred.

Kimberly, who was 15 years old at the time of the accident and had obtained her

Page 896

restricted license less than a week before, testified that she stopped at the intersection, looked for oncoming traffic, and, seeing none, proceeded to make her turn. She admitted that it was a clear day and that her view was unobstructed. She testified that she never saw Campbell or his motorcycle before colliding with them.

Under Section 56-5-1000(a)(2) of the 1976 South Carolina Code of Laws, as amended, drivers of vehicles entering an intersection controlled by a flashing yellow light "may proceed through the intersection or past such signal only with caution." Paschal argues that the question of Campbell's contributory negligence and hence the question of liability should have been submitted to the jury because the evidence shows that Campbell ignored the warning sign and caution light as he approached and entered the intersection and did not reduce his speed as required.

Before the negligence of a plaintiff may defeat recovery, it must be shown that it contributed to the accident as a proximate cause. Clyde v. Southern Public Utilities Co., 109 S.C. 290, 96 S.E. 116 (1918). A want of ordinary care is not a proximate cause of an injury where the negligence of the other party "is a more immediate, efficient cause." Bodie v. Charleston & W.C.R. Co., 61 S.C. 468, 486, 39 S.E. 715, 721 (1901).

We agree with the trial judge that the real and efficient cause of the accident was not Campbell's speed but Kimberly's negligent act of turning her car suddenly into the path of Campbell's motorcycle as Campbell entered the intersection.

[290 S.C. 7] There is no evidence from which it could reasonably be inferred that Campbell was traveling at an excessive rate of speed just prior to the collision. In fact, it is undisputed that Campbell slowed down as he entered the intersection. There is evidence, however, that Kimberly turned unexpectedly in front of Campbell when he was only ten or fifteen feet away from Kimberly's automobile. In so doing, Kimberly "created a trap from which [Campbell] could not escape." Odom v. Steigerwald, 260 S.C. 422, 428, 196 S.E.2d 635, 638 (1973).

II.

Paschal next argues that the trial court erred in denying his motion for an involuntary nonsuit on the ground that the family purpose doctrine is inapplicable where the head of the household is not the owner of the vehicle causing an injury. Again, we disagree.

In one of its earliest treatments of the family purpose doctrine, the South Carolina Supreme Court said: "A necessary requisite to the imposition of liability under the family purpose doctrine ... is that the head of the family own, maintain, or furnish the automobile ... for general family use ..." Porter v. Hardee, 241 S.C. 474, 477, 129 S.E.2d 131, 132 (1963) [Italics ours].

Later cases used slightly different language: "[A] head of a family, who owns, furnishes and maintains a vehicle for the general use, pleasure and convenience of his family is liable for the negligence of a member of the family having general authority to operate the vehicle for such a purpose." Lucht v. Youngblood, 266 S.C. 127, 133, 221 S.E.2d 854, 857 (1976) [Italics ours]; see also Lollar v. Dewitt, 255 S.C. 452, 179 S.E.2d 607 (1971); Sweatt v. Norman, 283 S.C. 443, 322 S.E.2d 478 (Ct.App.1984). Paschal relies upon this difference in language in arguing that ownership is a prerequisite to the application of the family purpose doctrine.

A careful reading of Lucht and Lollar, however, reveals that these decisions complement, rather than overrule, Porter v. Hardee. In fact, in Lucht the Supreme Court expressly dismissed the notion that the Porter v. Hardee line of cases was no longer good law.

Furthermore, the requirement of ownership was not specifically in issue in any of the reported family purpose doctrine cases in South Carolina because in all of them the [290 S.C. 8] head of the household was in fact the owner of the vehicle involved in the accident.

Page 897

The issue of whether the head of a household must be the legal owner of a car involved in an accident in order for the family purpose doctrine to apply has been decided adversely to Paschal's position by courts of other jurisdictions. See e.g. Tolbert v. Murrell, 253 Ga. 566, 322 S.E.2d 487 (1984); Herman v. Magnuson, 277 N.W.2d 445 (N.D.1979); Pesqueira v. Talbot, 7 Ariz.App. 476, 441 P.2d 73 (1968); Smith v. Simpson, 260 N.C. 601, 133 S.E.2d 474 (1963); Jerdal v. Sinclair, 54 Wash.2d 565, 342 P.2d 585 (1959).

The family purpose doctrine had its genesis in the law of agency. Norwood v. Partemos, 230 S.C. 207, 95 S.E.2d 168 (...

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25 practice notes
  • Gause v. Smithers, No. 27261.
    • United States
    • United States State Supreme Court of South Carolina
    • June 5, 2013
    ...member using the vehicle for its intended purpose, the family member thereby filling the role of agent or servant.” Campbell v. Paschal, 290 S.C. 1, 8, 347 S.E.2d 892, 897 (Ct.App.1986) (internal citation omitted). To impose liability under the family purpose doctrine the plaintiff must pro......
  • Benjamin v. Shaw, Civil Action No.: 4:15-cv-05110-RBH
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • July 28, 2017
    ...are reasonably certain to result in the future from the injury." Wilder, 396 S.C. at 148, 719 S.E.2d at 708; see also Campbell v. Paschal, 290 S.C. 1, 15, 347 S.E.2d 892, 901 (Ct. App. 1986) ("To recover for future medical expenses, the expenses must be established with reasonable certainty......
  • State v. Peer, No. 2444
    • United States
    • Court of Appeals of South Carolina
    • December 5, 1995
    ...Gooding v. St. Francis Xavier Hospital, 317 S.C. 320, 454 S.E.2d 328 (Ct.App.1995), cert. granted (Nov. 3, 1995); Campbell v. Paschal, 290 S.C. 1, 347 S.E.2d 892 (Ct.App.1986). Defects in the amount and quality of education and experience go to the weight of the expert's testimony and not t......
  • Kelley v. Kelley, No. 2579
    • United States
    • Court of Appeals of South Carolina
    • October 21, 1996
    ...based upon his capacity for prospective earnings rather than upon his actual earnings, and refused to grant a modification. Id. at 599, 347 S.E.2d at 892. Similarly, Mr. Kelley's voluntary underemployment should not be the basis for a reduction of alimony when his capacity for earning remai......
  • Request a trial to view additional results
25 cases
  • Gause v. Smithers, No. 27261.
    • United States
    • United States State Supreme Court of South Carolina
    • June 5, 2013
    ...member using the vehicle for its intended purpose, the family member thereby filling the role of agent or servant.” Campbell v. Paschal, 290 S.C. 1, 8, 347 S.E.2d 892, 897 (Ct.App.1986) (internal citation omitted). To impose liability under the family purpose doctrine the plaintiff must pro......
  • Benjamin v. Shaw, Civil Action No.: 4:15-cv-05110-RBH
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • July 28, 2017
    ...are reasonably certain to result in the future from the injury." Wilder, 396 S.C. at 148, 719 S.E.2d at 708; see also Campbell v. Paschal, 290 S.C. 1, 15, 347 S.E.2d 892, 901 (Ct. App. 1986) ("To recover for future medical expenses, the expenses must be established with reasonable certainty......
  • State v. Peer, No. 2444
    • United States
    • Court of Appeals of South Carolina
    • December 5, 1995
    ...Gooding v. St. Francis Xavier Hospital, 317 S.C. 320, 454 S.E.2d 328 (Ct.App.1995), cert. granted (Nov. 3, 1995); Campbell v. Paschal, 290 S.C. 1, 347 S.E.2d 892 (Ct.App.1986). Defects in the amount and quality of education and experience go to the weight of the expert's testimony and not t......
  • Kelley v. Kelley, No. 2579
    • United States
    • Court of Appeals of South Carolina
    • October 21, 1996
    ...based upon his capacity for prospective earnings rather than upon his actual earnings, and refused to grant a modification. Id. at 599, 347 S.E.2d at 892. Similarly, Mr. Kelley's voluntary underemployment should not be the basis for a reduction of alimony when his capacity for earning remai......
  • Request a trial to view additional results

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