Crocker v. Weathers

• Decision Date: 14 June 1962
• Docket Number: No. 17933,17933
• Citation: 126 S.E.2d 335,240 S.C. 412
• Court: South Carolina Supreme Court
• Parties: Elvira Kirby CROCKER, as Administratrix of the Estate of Robert E. Kirby, Respondent, v. Joe Manning WEATHERS and Wendell West, Defendants, of whom Wendell West is, Appellant.

Page 335

126 S.E.2d 335

240 S.C. 412

Elvira Kirby CROCKER, as Administratrix of the Estate of Robert E. Kirby, Respondent, v. Joe Manning WEATHERS and Wendell West, Defendants, of whom Wendell West is, Appellant.

No. 17933.

Supreme Court of South Carolina.

June 14, 1962.

Butler, Chapman & Barnes, Spartanburg, for appellant.

Burts & Turner, Spartanburg, for respondent.

MOSS, Justice.

This action was instituted by Elvira Kirby Crocker, as administratrix of the estate of Robert E. Kirby, deceased, the respondent herein, against Joe Manning Weathers and Wendell West, defendants, of whom Wendell West is the appellant, to recover damages for the wrongful death of Robert E. Kirby. The action was brought pursuant to Section 10-1951 et seq., 1952 Code of Laws of South Carolina, for the benefit of Elvira Kirby Crocker, the mother and the sole beneficiary under said statute.

The complaint alleges that on November 20, 1960, Robert E. Kirby was riding as a passenger in an automobile owned by Joe Manning Weathers and was being operated by the appellant, as agent of Joe Manning Weathers, with his consent and while the said Weathers was riding in said automobile. It is then alleged that while the appellant was operating the automobile owned by Weathers that he drove the same off of the highway into a field, causing the said automobile to turn over a number of times, and that Robert E. Kirby received severe injuries from which he later died. It is further alleged that the death of respondent's intestate was proximately caused by the gross negligence, carelessness, willfulness, wantonness, heedlessness and recklessness of Joe Manning Weathers and the appellant. The answer of Weathers and the appellant contained a general denial and, by way of further defense, alleged that the death of the respondent's intestate was caused and occasioned by his own contributory heedlessness, willfulness and recklessness, in voluntarily riding in an automobile driven by either Weathers or the appellant when he knew that they were under the influence of intoxicating liquors to such an extent that neither of them was capable of driving an automobile in a proper manner.

At the close of the testimony in behalf of the respondent, a timely motion for a nonsuit was made on the ground that the evidence showed that the respondent's intestate was guilty of contributory heedlessness, recklessness and willfulness so as to bar a recovery on the ground that he voluntarily entrusted himself and his safety to a driver who was operating the said automobile while under the influence of intoxicants. The second ground of the motion was that the evidence showed conclusively that respondent's intestate was driving the automobile at the time of the accident. The trial Judge overruled the motion for a nonsuit. Weathers and the appellant closed their case without offering any testimony. The case was submitted to a jury and resulted in a verdict in favor of the respondent for actual and punitive damages. Following the rendition of the verdict, a motion was made on behalf of Weathers and the appellant for judgment non obstante veredicto, or failing therein, for a new trial. This motion was refused. Weathers did not appeal but timely notice of intention to appeal to this Court was given by Wendell West.

The first question for determination, as made by the exceptions of the appellant, is whether the evidence shows that respondent's intestate was guilty of contributory recklessness and willfulness as a matter of law. The appellant's motion for a nonsuit, judgment non obstante veredicto, and alternatively for a new trial, raises this question. The question of whether or not there was error in refusing the motion of the appellant for a nonsuit, judgment non obstante verdicto, and alternatively for a new trial, requires us to consider the testimony and the reasonable inferences to be drawn therefrom in a light most favorable to the respondent. If more than one reasonable inference can be drawn from the evidence, the case must be submitted to the jury. However, if the evidence is susceptible of only one reasonable inference, the question is no longer one for the jury but one of law for the Court. Green v. Bolen, 237 S.C. 1, 115 S.E.2d 667. Ordinarily, contributory recklessness and willfulness is an issue for the jury and rarely becomes a question of law for the Court. Questions as to the contributory recklessness and willfulness of a guest in an automobile must be determined from the facts of the particular case and are usually for determination by the jury. Augustine v. Christopoulo et al., 196 S.C. 381, 13 S.E.2d 918.

It is the contention of the respondent that her intestate was riding as a passenger in an automobile owned by Weathers and operated by the appellant. If the respondent's intestate was a guest passenger in said automobile, then this action is governed by Section 46-801 of the 1952 Code of Laws of South Carolina, which provides that '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 or operator or caused by his heedlessness or his reckless disregard of the rights of others.' The foregoing section, 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. Fulghum v. Bleakley, 177 S.C. 286, 181 S.E. 30; Brown v. Hill, 228 S.C. 34, 88 S.E.2d 838; Saxon v. Saxon, 231 S.C. 378, 98 S.E.2d 803; Benton v. Pellum, 232 S.C. 26, 100 S.E.2d 534; and Jackson v. Jackson, 234 S.C. 291, 108 S.E.2d 86.

The respondent's intestate was eighteen years of age, a cousin of Wendell West and a nephew of Joe Manning Weathers. It appears from the record that on Sunday, November 20, 1960, that Robert Kirby, Joe Manning Weathers and Wendell West were together at the Glenn Springs Service Station located on Highway 215, in Spartanburg County. Raymond Taylor, the proprietor of the service station, closed such at 12:15 P.M. in order to go home to lunch. He left Kirby, Weathers and West in the yard of the station. He testified that all three were sober at the time.

It appears from the testimony of Ellis Wyatt that he was at Wyatt's Service Station located about one mile north of Pauline, on Sunday, November 20, 1960, and that Weathers, West and Kirby came to such service station between 1:30 and 2:00 o'clock P.M. He testified that the three stayed at the service station ten or fifteen minutes and that it appeared to him that Weathers and West had been drinking but that Kirby had not. As to how much West and Weathers had been drinking, he said, 'Well, they wasn't what you would call plumb drunk. They had been drinking.' He further testified that they talked normally and quietly while at the service station. He further testified that he was outside of the service station when these three left. He said that Kirby got in the back seat of the automobile and Wendell West got under the steering wheel and Weathers got in on the right hand side in the front. He said that the car left the station 'pretty fast' going in the direction of Aauline. He further said that about fifteen or twenty minutes later he saw this same car in a wrecked condition. This witness also stated that he smelled whiskey on Weathers and West, and expressed the opinion that he wouldn't want to ride with either of them because they were too drunk to drive.

Maynard Miller, an officer who investigated the wreck, testified that the automobile in which the three parties were riding left the road at a sharp curve some three or four hundred feet from where the car came to rest. He testified that West and Kirby were approximately five or six feet from the left side of the wrecked car and Weathers was underneath the car. He said he helped pull Weathers from under the car and that he smelled alcohol on him but that he did not smell any on West or Kirby because he did not get close enough to either of them to tell whether they were drinking. He testified further that Weathers told him that he and West 'had been drinking pretty heavy.'

The officer further testified that when the automobile reached a sharp curve to the right on Highway 215, about 3/10 of a mile north of Glenn Springs, it went off the curve on the left hand side of the road and came back across the highway and went off to the right, knocking down a speed zone sign, jumping a gully and hit a chinaberry tree about twelve to fifteen inches in diameter and then traveled sixty or seventy feet on out into a field, where the automobile came to rest 'on its wheels', but was heavily damaged.

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. Where a guest voluntarily continues to ride with a driver, who, because of intoxication, is not in possession of his faculties, the guest is reckless in the same degree as the driver, provided the guest has had the opportunity to remove himself from such danger by not continuing as a guest in the automobile operated by such intoxicated driver. In this connection, see the cases of 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, and Ardis v. Griffin, 239 S.C. 529, 123 S.E.2d 876.

In the case of Nettles v. Your Ice Co., supra, the guest was held to have been guilty of contributory willfulness in continuing to ride in the vehicle, after opportunity to get out, when he knew the driver was getting progressively drunk and...