Cirosky v. Smathers
| Decision Date | 23 April 1924 |
| Docket Number | 11490. |
| Citation | 122 S.E. 864,128 S.C. 358 |
| Parties | CIROSKY v. SMATHERS. [*] |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Charleston County; W. H Townsend and W. F. Rice, Judges.
Action by J. A. Cirosky, as administrator, against H. A. Smathers. Judgment for defendant, and plaintiff appeals. Affirmed.
Shimel & Rittenberg, of Charleston, for appellant.
Paul M Macmillan, of Charleston, for respondent.
Action for damages on account of alleged wrongful death of the plaintiff's intestate, his daughter, a little girl aged about 5 years, who was run over and killed by an automobile belonging to the defendant, driven by his son, a boy under 16 years of age.
The complaint contains allegations of various acts of negligence which need not be detailed. The answer contains a denial of the material allegations of the complaint, and sets up the contributory negligence of the parents of the child as a defense, in that they permitted the child "to attempt to cross in the middle of a crowded thoroughfare of the city of Charleston unattended, and without accompanying, helping assisting, or in any manner supervising the conduct of the child." The plaintiff demurred to the defense of contributory negligence, and the demurrer coming on to be heard by his honor, Judge Townsend, was overruled. The case was at a later time tried before his honor, Judge Rice, and a verdict for the defendant was rendered. The plaintiff has appealed.
The plaintiff appellant relies upon the following propositions for a reversal of the judgment in favor of the defendant:
(1) That his honor, Judge Townsend, committed error in overruling the plaintiff's demurrer to the defense of contributory negligence on the part of the parents of the child.
(2) That his honor, Judge Rice, committed error in excluding from the consideration of the jury the law regulating the speed of automobiles at highway crossings and the facts in connection therewith.
(3) That his honor, Judge Rice, committed error in charging the jury that the mere fact that the automobile was being operated by a youth, with the permission of his father, without a license (in conformity with the ordinance of the city of Charleston), would not render the father liable for any injury caused by the youth, in the absence of evidence of a negligent operation of the car.
As to the first proposition:
It is generally, and we think properly, conceded that in an action by the injured child it will not be concluded by the contributory negligence of the parents or custodian, that in an action by the parent in his individual right, as for loss of services of the child, the parent so suing will be concluded by his contributory negligence, and that in an action by the administrator of the child, under Lord Campbell's Act, for the benefit of certain statutory beneficiaries, the administrator will not be concluded by the contributory negligence of the custodian, when the beneficiaries are not the persons charged with such contributory negligence. But the question here is whether or not, in an action by the administrator of the child, under Lord Campbell's Act for the benefit of certain statutory beneficiaries, the administrator will be concluded by the contributory negligence of the parent or custodian, where the beneficiaries are the persons charged with such contributory negligence.
In an elaborate note to the case of Flagstaff v. Gomez (Ariz.) 23 A. L. R. 661, beginning [122 S.E. 865] at page 670, the cases pro and con are collated; the courts of 20 states holding the affirmative of the question, including South Carolina (Sandel v. State, 115 S.C. 168, 104 S.E. 567, 13 A. L. R. 1268), and in addition the lower federal courts, and 10 the negative. (Alabama is listed in the affirmative under an early case and in the negative under more recent decisions.) To the affirmative list may be added Hazel v. Bus. Co., 310 Ill. 38, 141 N.E. 392.
The case of Watson v. R. Co., 66 S.C. 47, 44 S.E. 375, did not attract attention in either the note above referred to or in the Sandel Case. In the Watson Case the custodian sought to be charged with contributory negligence was not one of the beneficiaries under the statute, and for that reason it is not controlling upon the present question, although (the writer hereof speaking for himself only) the reasoning upon the statute, in that case, applicable to the present question is difficult if not impossible to refute.
In the Sandel Case, 115 S.C. 168, 104 S.E. 567, 13 A. L. R. 1268, the question was as squarely presented as it could have been, and the unanimous decision of the court aligned this state with the majority affirmative. Unless the court is now disposed to overrule the Sandel Case, decided so recently, in October, 1920, no valid reason for doing which has been suggested, it must be followed and the order of his honor, Judge Townsend, overruling the plaintiff's demurrer, sustained. Kilpatrick v. Spartanburg, 101 S.C. 334, 85 S.E. 775. The interesting question of the effect of the contributory negligence of one of the beneficiaries upon a recovery by the others does not arise in this case under the allegation of joint negligence of the parents, and has not been considered. See note 23 A. L. R. at page 690. Nor has the question of the effect of the ordinary contributory negligence of the beneficiaries upon the cause of action based upon willfulness and recklessness arisen or been considered.
As to the second proposition:
The plaintiff sought to prove that the automobile, at the street crossing immediately south of the accident, was exceeding the speed limit fixed by the Criminal Code of 1922, § 582 regulating the approach to, and the crossing of, public highways, and contended that such evidence was admissible upon the question of speed at the time of the accident and of the general conduct of the operator. The circuit judge excluded the evidence, holding that, as the accident did not occur at a crossing, the evidence was inadmissible. The respondent contends that the ruling was proper upon the ground that the section invoked has no application to city street crossings. We think that the contention should be sustained. As is held in the Dobbins Case, 108 S.C. 254, 93 S.E. 932, "the statute is a criminal statute and must be strictly construed." The section is found in chapter 11, the title of which is "Violation of provisions in regard to highways." The chapter refers to highways, public highways, toll bridges, bridges, ferries, fords, mile posts, guide posts, numbering roads, gates, ditches,...
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