Fuller v. Bailey
| Citation | 237 S.C. 573,118 S.E.2d 340 |
| Decision Date | 01 February 1961 |
| Docket Number | No. 17742,17742 |
| Court | United States State Supreme Court of South Carolina |
| Parties | Fred W. FULLER, Administrator of the Estate of Mildred L. Fuller, Respondent, v. James C. BAILEY, Appellant. |
Sinkler, Gibbs & Simons, Charleston, for appellant.
William H. Grimball, Jr., Arthur C. Baker, Charleston, for respondent.
This is an action to recover damages for the alleged wrongful death of Mildred L. Fuller. Section 10-1951 et seq., 1952 Code of Laws of South Carolina. The respondent asserts that his intestate was riding as a guest passenger in the automobile of the appellant. The right to recover is governed by Section 46-801 of the Code of 1952, which provides:
'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 or death has resulted from either intentional, heedless or reckless misconduct of the owner or operator of the motor vehicle. Jackson v. Jackson, 234 S.C. 291, 108 S.E.2d 86.
The complaint alleges that on September 1, 1958, at approximately 9:30 p. m., that Mildred L. Fuller was riding as a passenger in a Ford automobile which was owned and driven by James C. Bailey, the appellant herein. The said Mildred L. Fuller died on said date as a direct and proximate result of injuries received by her due to the operation of said automobile by the appellant at a high, dangerous, reckless and unlawful rate of speed, and in heedless and reckless disregard of the rights of the said Mildred L. Fuller. The appellant, by answer, denied any wrongful conduct on his part that brought about the injury and death of the said Mildred L. Fuller. The cause came on for trial before the Honorable Bruce Littlejohn, and a jury, on November 10, 1959 and resulted in a verdict for the respondent in the amount of $2,000 actual damages. At appropriate stages of the trial, the appellant moved for a nonsuit, directed verdict and judgment non obstante veredicto, on the ground that there was no testimony from which it could be inferred that the appellant was driving the automobile at the time of the accident in which the said Mildred L. Fuller lost her life. The other ground was that if it be concluded that the appellant was operating or driving the said automobile, there was no evidence that established that he was guilty of negligence, recklessness, wilfulness, wantonness or heedlessness, which operated as the proximate cause of the death of respondent's intestate. These motions were denied.
Upon the rendition of the verdict in favor of the respondent for the sum of $2,000 actual damages, he moved for a new trial on the ground that the verdict was grossly inadequate. This motion was sustained and new trial was granted. The case is before this Court upon proper exceptions challenging the foregoing rulings of the Trial Judge. The questions presented are (1) whether the Trial Judge was in error in refusing to grant the motions of the appellant for nonsuit, directed verdict and judgment non obstante veredicto on the grounds stated; and (2) did the Trial Judge commit error in granting a new trial on the ground that the verdict was inadequate.
It is a well established rule of law that in passing upon the exceptions of the appellant to the refusal of the Trial Judge to grant his motions for a nonsuit, directed verdict or judgment non obstante veredicto, it is incumbent upon this Court to view the evidence and the inferences fairly deducible therefrom in the light most favorable to respondent's case. Peagler v. Atlantic C. L. Railroad Co. et al., 234 S.C. 140, 107 S.E.2d 15. Johnson v. Charleston & W. C. Ry. Co., 234 S.C. 448, 108 S.E.2d 777.
The evidence shows that Mildred L. Fuller lost her life on September 1, 1958, when the Ford automobile in which she was riding went out of control and left the highway on a curve in Highway No. 642, about five miles east of the Town of Summerville in Dorchester County, South Carolina. The automobile was owned by the appellant, James C. Bailey, and he was in the automobile at the time of the accident, and it appears from the evidence that he sustained severe head injuries and had no recollection of the occurrence. There were no eyewitnesses to the accident.
It is the contention of the appellant that the respondent offered no proof from which it could be reasonably concluded that the appellant was operating the automobile at the time of the accident. There is no direct evidence in the record that the appellant was driving the automobile at the time of the accident. However, the circumstantial evidence which tends to prove that the appellant was the driver of the car is that he was the owner thereof; that he kept his automobile in perfect conditin, and it was testified by one witness who knew the appellant well that he had never seen anyone else drive the automobile. It was testified that the respondent's intestate did not like to drive an automobile and only drove when it was necessary. There was also testimony that the appellant and Mildred L. Fuller were seen about one-half an hour prior to the accident and that the appellant was then driving the automobile and the deceased was sitting on the opposite side of the driver. On the day in question, the decedent asked the appellant to drive her in an effort to find her husband and daughter. The appellant testified that he drove Mildred L. Fuller to several places in and near Charleston immediately prior to the accident. He further testified that the last time he remembered driving the car was when he came across the new Ashley River Bridge and headed toward the new dual lane highway. The undertaker testified that in preparing the body of Mildred L. Fuller for burial he removed therefrom a knob which had made an imprint on the upper part of her chest. This knob apparently came from the car radio. Since the car radio was to the right of the center of the car, this circumstance would indicate that Mrs. Fuller was seated opposite the car radio to the right of the driver. There was testimony from which it could be inferred that the appellant's head struck the steering wheel, which indicates that he was in the driver's seat when the accident happened. The body of the decedent was found under the right side of the automobile which was turned on its right side. The appellant was thrown clear of the car. The highway patrolman who investigated the wreck testified as follows:
We think that the physical facts at the scene of the wreck, and the attendant facts and circumstances, which are circumstantial in nature, when considered in the light most favorable to the respondent permit a reasonable inference that the appellant was driving the automobile at the time of the wreck. The case of Stegall v. Sledge, 247 N.C. 718, 102 S.E.2d 115, 118, involved a factual situation, somewhat similar to the present case, and the Supreme Court of North Carolina held that the evidence was sufficient to take to the jury the issue as to whether the decedent, whose estate was the defendant, was driving at the time of the wreck. We quote therefrom the following:
The respondent cites the annotation in 32 A.L.R.2d 988, upon the subject of proof, in absence of direct testimony by survivors or eyewitnesses, of who, among occupants of motor vehicle, was driving it at time of accident. In this annotation we find the following statement:
.'
In the case of Ohio Bell Tel. Co. v. Lung, supra, where the owner of an automobile and his guest were both killed when the car ran into a telephone pole owned and maintained by the telephone company, the Court said that where,...
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