Chewning v. Chewning

• Decision Date: 27 December 1973
• Docket Number: No. 7320SC670,7320SC670
• Citation: 201 S.E.2d 353,20 N.C.App. 283
• Parties: Hazel Bridges CHEWNING v. Jasper C. CHEWNING.
• Court: North Carolina Court of Appeals

Page 353

201 S.E.2d 353

20 N.C.App. 283

Hazel Bridges CHEWNING v. Jasper C. CHEWNING.

No. 7320SC670.

Court of Appeals of North Carolina.

Dec. 27, 1973.

C. Rouse Pusser, Chesterfield, S.C., E. A. Hightower, and Taylor & McLendon by H. P. Taylor, Jr., Wadesboro, for plaintiff-appellant.

Leath, Bynum & Kitchin by Henry L. Kitchin, Rockingham, for defendant-appellee.

PARKER, Judge.

Plaintiff's right of action being transitory, the substantive rights and liabilities of the parties are to be determined in accordance with the laws of South Carolina, the Lex loci. Frisbee v. West, 260 N.C. 269, 132 S.E.2d 609; Harper v. Harper, 225 N.C. 260, 34 S.E.2d 185; Coldfelter v. Wells, 212 N.C. 823, 195 S.E. 11; Howard v. Howard, 200 N.C. 574, 158 S.E. 101. The suggestion that North Carolina law should control, because the only negligence alleged in plaintiff's complaint was defendant's failure to warn her of the defective condition of the tire and this negligence first occurred in this State, is without merit. If defendant was guilty of negligence failure in that regard, the same negligence continued right up to the moment of the accident. Moreover, defendant could not become liable until the accident and resulting injury occurred, and it is well established 'that in law the place of a wrong is in the State where the last event takes place which is necessary to render the actor liable for an alleged tort.' Farmer v. Ferris, 260 N.C. 619, 627, 133 S.E.2d 492, 498; see Annotation, Conflict of Laws--Place of Tort, 77 A.L.R.2d 1266, and Restatement, Conflict of Laws 2d, § 146. Accordingly, we look to the laws of South Carolina for determination of the substantive rights and liabilities of the parties in this case.

The first question presented is whether the South Carolina Automobile Guest Statute is applicable under the circumstances of this case. That statute, § 46--801, South Carolina Code of 1962, in pertinent part reads as follows:

' § 46--801. Liability for injury to quests in car.--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 of operator or caused by his heedlessness or his reckless disregard of the rights of others.'

Looking to the laws of South Carolina, we find this statute applicable in the present case.

South Carolina, like our own State, recognizes the right of a wife to maintain a tort action against her husband to recover damages for her personal injuries caused by his actionable negligence. Pardue v. Pardue,167 S.C. 129, 166 S.E. 101; Oshiek v. Oshiek, 244 S.C. 249, 136 S.E.2d 303 (recognizing rule). The Automobile Guest Statute has been held applicable by the South Carolina Supreme Court in cases brought by a wife against her husband to recover for injuries received by her while riding in his automobile, thereby tacitly recognizing that a wife, no less than a stranger, may under appropriate circumstances occupy the legal status of 'guest' within the meaning of the statutes. Guyton v. Guyton, 244 S.C. 357, 137 S.E.2d 273; Jackson v. Jackson, 234 S.C. 291, 108 S.E.2d 86, and see Annotation, 2 A.L.R.2d 932. While we have found no decision of the South Carolina Supreme Court dealing with the factual situation in which the guest assists in driving the vehicle, at least one court, applying South Carolina law, has held that the mere fact that the plaintiff assisted with the driving would be insufficient to change the status of the plaintiff from that of 'guest' within the meaning of the statute. Kaufmann v. Huss, 59 N.J.Super. 64, 157 A.2d 338. This holding is in accord with substantial authority from other jurisdictions having similar statutes, particularly where the circumstances surrounding the parties indicate that the considerations inducing the offer of transportation to the occupant were primarily those of hospitality or sociability. 8 Am.Jur.2d, Automobiles and Highway Traffic, § 479; Annotation, 39 A.L.R.3d 1083, Automobiles--Guest Statute--Noncash Payment, § 9(c), p. 1109. It is true that the case now before us presents an unusual factual situation in that plaintiff was driving at the moment the accident occurred, but we see no logical reason why this fact should change her status as a person who was being furnished transportation by the owner of the vehicle 'as his guest without payment for such transportation' within the meaning of the statute, if the other circumstances were such as to indicate that she held that status. Thus, on the basis of the foregoing authorities it is out opinion that under applicable South Carolina law the mere facts that plaintiff was the wife of defendant and that she was the driver of her husband's vehicle at the time the accident occurred did not preclude her from being his 'guest without payment' within the meaning of the South Carolina Automobile Guest Statute. The question remains as to whether, under all of the circumstances disclosed by the evidence in this case, she did occupy that status. In this connection, while we find no controlling South Carolina decision on the matter, 'it appears to be well-accepted principle that the occupant of the vehicle who claims that the guest statute is not applicable has the burden of proving that his status was other than that of guest.' Annotation, 24 A.L.R.3d 1400, 1402; Accord, Frisbee v. West, supra. In the present case we find no evidence to indicate that plaintiff occupied any status other than that of a 'guest without payment.' Indeed, all of the evidence...