Gause v. Smithers

Decision Date05 June 2013
Docket NumberNo. 27261.,27261.
Citation742 S.E.2d 644,403 S.C. 140
CourtSouth Carolina Supreme Court
PartiesDon D. GAUSE, Respondent, v. Nathan Dale SMITHERS and Edward W. Hunt, Defendants, of whom Edward W. Hunt is the Appellant. Appellate Case No. 2011–183646.


Linda Weeks Gangi, of Thompson & Henry, PA, of Conway, for Appellant.

John S. Nichols, of Bluestein, Nichols, Thompson, & Delgado, LLC, of Columbia, and David Eliot Rothstein, of Rothstein Law Firm, P.A., of Greenville, for Respondent.

Justice HEARN.

Edward William Hunt (Father) appeals a jury verdict in favor of Don Gause finding him liable under the family purpose doctrine for damages caused by the negligence of Edward Raymond Hunt (Son). Father argues he cannot be found liable under the family purpose doctrine; Son's actions were not a proximate cause of Gause's injuries; he should be granted a new trial due to prejudicial statements and a defective verdict form; and the punitive damages award should be overturned as impermissible under the family purpose doctrine. We affirm in part and reverse in part.


Gause, a police officer for the City of Conway, was on duty when he responded to a call from a highway patrolman who had pulled over a Firebird driven by Son on suspicion of drunk driving. Instead of pulling off the highway into the emergency lane, Son stopped in the left lane of traffic on the four lane highway, and the patrolman stopped behind him with his lights flashing. When Gause arrived, he parked behind the patrolman, who subsequently left the scene, and also activated his blue lights. A second policeman also responded and eventually took Son into custody, leaving only Gause and the abandoned vehicle. Gause was filling out paperwork in his car and waiting for the tow truck to move the Firebird when a pickup truck driven by Nathan Smithers rear-ended him, propelling his cruiser into the Firebird.

Gause sued Smithers and Father—assuming he was the driver of the Firebird because it was registered in his name—for his injuries.Father moved to dismiss on the basis that Son, and not he, had been driving the Firebird that night. Realizing the mistake, Gause filed an amended complaint substituting Son as the defendant for the negligence claim and changing the claims against Father to negligent entrustment and liability under the family purpose doctrine. Son moved to be dismissed as a party because the amendment occurred after the statute of limitations had run, and the circuit court granted the motion, holding the amended complaint did not relate back under Rule 15(c), SCRCP. Gause appealed the grant of Son's motion to be dismissed, and the court of appeals affirmed in Gause v. Smithers, 384 S.C. 130, 681 S.E.2d 607 (Ct.App.2009).

Father then moved for summary judgment on the grounds the case could not proceed under the theory of the family purpose doctrine because Son had been dismissed and additionally, Son did not proximately cause Gause's injuries. The circuit court denied the motion and the case proceeded to a jury trial on the issue of Father's liability under the family purpose doctrine.1

At trial, Father acknowledged he owned the Firebird at the time of the accident, but testified he had transferred title to Son shortly before trial. He noted that prior to the accident he had performed some maintenance on the car, but stated that Son took over most of the maintenance after Father decided to sell it to him. According to Father, Son made a payment of $200 prior to the accident, but Father used that money to bail Son out of jail after the wreck. He testified Son lived with him, although he clarified that Son actually resided in a “broken-down motor home” next to his house, with electricity provided by an extension cord running from Father's house.

Son testified that at the time of the accident he was twenty-five and lived with his parents. He could not remember whether he was employed then. He stated on the night of the accident he patronized a strip club in Myrtle Beach for four hours and then slept in his car for about an hour before attempting to drive home. He testified he was pulled over because the patrolman observed him weaving between the lanes, and he was taken to the detention center after he was stopped. Son further acknowledged he should have pulled off the road and was not sure why he stopped his car in a lane of travel.

Over Father's objections, the court submitted the issue of Father's liability under the family purpose doctrine to the jury. During deliberations, the jury asked the circuit court to clarify the identity of the defendants in the case, and the court brought the jury back in and stated that the father was the defendant, not the son. The jury returned a verdict for Gause, awarding actual damages of $155,432.64 and punitive damages of $60,000 against Smithers and $40,000 against Father. However, when the verdict was read, the parties realized that Son had been listed as a defendant in the caption. The court then sought to have the jurors consider a corrected verdict form, but the bailiff had already dismissed them and the court was unable to call them all back. The court, however, refused to grant a new trial, reasoning that the jury had not been confused and that any prior confusion was clarified by its previous instructions. This appeal followed.


I. Did the circuit court err in failing to dismiss the case against Father when Son was no longer a party to the action?

II. Did the circuit court err in failing to direct a verdict in favor of Father?

III. Did the circuit court err in denying Father's motions for a new trial based on the defective verdict form and prejudicial statements made by Gause and his attorney in regards to Son's intoxication at the time of the incident?

IV. Did the circuit court err in allowing punitive damages to be assessed against Father when his liability was predicated on the family purpose doctrine?


Father argues the circuit court erred in refusing to dismiss the case against him after Son was dismissed from the lawsuit because under the family purpose doctrine, Father's liability was indivisible from Son's. We disagree.

The family purpose doctrine, which arises from the law of agency, is derived from the notion that one “who has made it his business to furnish a car for the use of his family is liable as principal or master when such business is being carried out by a family member using the vehicle for its intended purpose, the family member thereby filling the role of agent or servant.” Campbell v. Paschal, 290 S.C. 1, 8, 347 S.E.2d 892, 897 (Ct.App.1986) (internal citation omitted). To impose liability under the family purpose doctrine the plaintiff must prove the defendant is the head of the family and owns, maintains, or furnishes the automobile. Reid v. Swindler, 249 S.C. 483, 496, 154 S.E.2d 910, 916 (1967). Whether the family purpose doctrine applies is ordinarily a question of fact for the jury, but where no factual issue is created, the question becomes one of law, properly decided by the circuit court. Evans v. Stewart, 370 S.C. 522, 527, 636 S.E.2d 632, 635 (Ct.App.2006).

Father relies on Jordan v. Payton, 305 S.C. 537, 409 S.E.2d 793 (Ct.App.1991), for the proposition that his liability is indivisible from Son's liability In Jordan, the plaintiff was injured when a minor lost control of his vehicle and struck her house, and she sued the minor and his legal guardian based on the family purpose doctrine. Id. at 538, 409 S.E.2d at 793. Neither party filed an answer, and the plaintiff was granted a default judgment against both the minor and the guardian. Id. The court of appeals reversed the judgment against the minor pursuant to Rule 55, SCRCP, because a guardian ad litem had not been appointed for him. Id. The court also reversed the judgment against the legal guardian, noting that “the liability of [the guardian] depends upon the liability of the child. Therefore, the judgment must be valid against both or it is valid against neither.” Id. at 539, 409 S.E.2d at 794.

We find this case distinguishable. Although we agree the liability of Father hinges on the liability of Son, here, there has been no previous determination as to Son's liability. In Jordan, the court of appeals noted, “Under the express language of [Rule 55, SCRCP], the default judgment entered against the child is void for all purposes, liability as well as damages.” Id. (emphasis added). Thus, by voiding the judgment, there was no longer a judgment that the minor was liable. Because the liability of the guardian rested on the negligence of the minor, there could be no judgment against the guardian if the minor had not been found negligent. Here, however, Son's dismissal from the action was not grounded on a finding of no liability. Son was offered as a witness at trial and the jury was instructed that it had to consider both his personal liability as well as whether Father should be found liable under the family purpose doctrine. Son did not need to be a party to the action to allow the jury to make these determinations. We therefore find Father can be held liable even though Son was dismissed from the action. 2

Moreover, allowing the case to proceed against Father alone is consistent with the theories of agency from which the family purpose doctrine developed. Under the doctrine of respondeat superior, an injured party can elect to sue both the principal and the agent, but is not required to sue the agent to recover from the principal. Austin v. Specialty Transp. Servs., Inc., 358 S.C. 298, 319, 594 S.E.2d 867, 878 (Ct.App.2004). Furthermore, [t]he rationale of the family purpose doctrine is that it serves to place financial responsibility upon the head of the family who is more likely to respond in damages when the family vehicle is used negligently by a person without sufficient assets of his own.” Lollar v....

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