Canady v. Martschink Beer Distributors, Inc.

• Decision Date: 05 November 1970
• Docket Number: No. 19119,19119
• Citation: 177 S.E.2d 475,255 S.C. 119
• Court: South Carolina Supreme Court
• Parties: Edward CANADY, Respondent, v. MARTSCHINK BEER DISTRIBUTORS, INC., Donald E. Davis, and Herman Webster, ofwhom Donald E. Davis is, Appellant.

Page 475

177 S.E.2d 475

255 S.C. 119

Edward CANADY, Respondent, v. MARTSCHINK BEER DISTRIBUTORS, INC., Donald E. Davis, and Herman Webster, ofwhom Donald E. Davis is, Appellant.

No. 19119.

Supreme Court of South Carolina.

Nov. 5, 1970.

William H. Grimball, of Grimball & Cabaniss, Charleston, for appellant.

Robert B. Wallace, Paul N. Uricchio, Jr., Charleston, for respondent.

LEWIS, Justice.

Plaintiff was injured when the automobile in which he was a passenger overturned. He brought this action against one Herman Webster, the owner of the automobile; Donald E. Davis, the driver, hereafter referred to as defendant; and Martschink Beer Distributors, Inc., the owner of a truck being overtaken and passed at the time of the collision, to recover the damages sustained. The owner of the automobile was eliminated as a party upon oral demurrer prior to trial. The trial judge directed a verdict, as to liability, against defendant, leaving, as to him, only the question of the amount of damages to be assessed. The case was then submitted to the jury against Martschink generally, and against defendant on the limited issue of damages. The jury exonerated Martschink from liability and returned a verdict against the defendant, the driver of the automobile, in the amount of $17,500.00 actual damages, from which only defendant has appealed.

The defendant, by way of defense, entered a general denial and pled the affirmative defenses of contributory recklessness and assumption of risk. The affirmative defenses were based upon allegations that plaintiff was participating in a drinking and joy-riding party with defendant and other occupants of the automobile, all of whom, including defendant, were under the influence of intoxicants.

Since plaintiff was a guest passenger, he could recover against defendant, the driver, only upon a showing of intentional or reckless misconduct in the operation of the vehicle. Therefore, contributory negligence on the part of plaintiff would not be a defense unless it amounted to a reckless disregard for his own safety. Benton v. Davis, 248 S.C. 402, 150 S.E.2d 235. (The cited case arose out of the present collision and involved liability of defendant to another guest passenger.)

At the conclusion of the testimony, the trial judge directed a verdict against the defendant as to liability upon the grounds that (1) the evidence conclusively showed recklessness on the part of the defendant in the operation of the automobile, (2) assumption of risk was not an available defense in this tort action, and (3) in any event, there was no evidence to sustain either the plea of contributory recklessness or assumption of risk.

For the purposes of this appeal, defendant concedes that he was guilty of recklessness in the operation of the automobile at the time of the accident. He challenges however the rulings of the trial judge relative to the defenses of contributory recklessness and assumption of risk, contending that there was ample evidence to require the submission of these issues to the jury for determination.

The first questions to be decided concern the rulings of the trial judge relative to the pleas of contributory recklessness and assumption of risk. These involve two issues--first, whether assumption of risk was an available defense in this tort action; and, second, whether there was any evidence to sustain either of the pleas, requiring their submission to the jury for consideration.

The question of whether the defense of assumption of risk is available in a tort action is disposed of by our decision in Baker v. Clark, 233 S.C. 20, 103 S.E.2d 395.

While we stated in Cooper v. Mayes, 234 S.C. 491, 109 S.E.2d 12 that 'assumption of risk, in its true sense, rests in contract, not tort,' and that its usual application arises in master-servant relationships, we recognized in the Baker case that it is also available as a defense where no such contractual relationship exists. It was stated in Baker:

'There is some confusion in the cases as to whether a defense of this kind should be characterized as contributory negligence or assumption of risk. The two are closely associated. As pointed out by Professor Prosser * * *, in the early decisions the doctrine of assumption of risk was confined to cases arising out of the relation of master and servant but it is now recognized that The basis of the defense is not contract but consent, and that it is available in many cases where no contract exists.' (Emphasis added).

The basis for the application of the defense in tort actions was stated in Baker as follows:

'* * * if a plaintiff freely and voluntarily enters into some relation with a defendant which presents obvious danger, he will be regarded as impliedly agreeing to look out for himself and to relieve the defendant of responsibility.'

We therefore hold in accord with the foregoing principles that the defense of assumption of risk is available in tort actions where the facts warrant its application.

While assumption of risk may constitute a defense in a tort action, the facts in this case do not warrant its application and the trial judge properly refused to submit the issue to the jury. The conduct attributed to respondent in this case has been rather consistently characterized as contributory recklessness and not assumption of risk. Benton v. Davis, supra, 248 S.C. 402, 150 S.E.2d 235, and cases cited therein.

The next question then is whether there was any evidence to sustain the plea of contributory recklessness so as to require its submission to the jury for consideration.

We have held that a guest in an automobile, who voluntarily and knowingly entrusts his safety and security to a driver who is under the influence of intoxicants, is equally at fault with the driver and is guilty of contributory recklessness as a matter of law, so as to preclude him from recovery for injuries sustained in an accident if the intoxicated condition of the driver was a...