Harper v. Harper

• Decision Date: 06 June 1945
• Docket Number: No. 669.,669.
• Parties: HARPER . v. HARPER. W1CKHAM . v. SAME
• Court: North Carolina Supreme Court

34 S.E.2d 185

225 N.C. 260

HARPER .

v.HARPER.

W1CKHAM .

v.SAME

No. 669.

Supreme Court of North Carolina

June 6, 1945.

(two cases).

.

[COPYRIGHT MATERIAL OMITTED]

Appeal from Superior Court, Guilford County; H. Hoyle Sink, Judge.

Actions by Clara C. Harper, Mrs. Phil S. Wickham, and Phil S. Wickham, against T. H. Harper for personal injuries, consolidated for trial by consent. From judgments on issues answered in favor of plaintiffs, defendant appeals.

New trial granted in first action, and no error in the other two actions.

Three separate civil actions to recover damages resulting from an automobile wreck, consolidated for trial by consent.

On October 22, 1943, plaintiff Clara C. Harper was the owner of a Pontiac automobile. On that day she and her husband and plaintiffs Phil S. Wickham and Mrs. Wickham started on a trip from the Harper home, near High Point, to Augusta, Ga., on Mrs. Harper's automobile. They spent the night in Augusta. The next day, about 5 p.m., after defendant had transacted some business, they started on the return trip. When about seventeen miles out of Augusta, just across the South Carolina line, the car began to pull over from the right to the left side of the road and ran off the road, fell over some tree tops down a thirty-foot embankment into a tree. When the car began to swerve to the left, Mrs. Harper, who was sitting on the rear seat, began to scream, but apparently the driver "paid no attention to her." Each plaintiff received personal injuries. Those sustained by Mrs. Harper, being more serious than the others, resulted in pneumonia and left her permanently injured. Her car was also practically demolished.

The defendant Harper was operating the car both going to and returning from Augusta. Mrs. Harper testified that defendant's automobile was out of repair; that at his request she loaned him her car to make a business trip to Augusta; and that later, at his suggestion and invitation, she consented to go along as his companion and guest. He also invited Mr. and Mrs. Wickham to accompany him.

Some time after the wreck, defendant stated that he was very sleepy and dozed off shortly before the wreck; that he realized it was a very dangerous thing for him to keep on driving; that he felt nauseated; that he tried to shake it off but he went on anyway and again fell asleep; that he woke up hearing Mrs. Harper scream but by that time the car was going over the top of the trees and that he did not shake off his drowsiness enough to do anything about it; that he felt drowsy and sleepy.

Plaintiffs base their cause of action on the allegation that defendant was operating the automobile without keeping a proper lookout. They alleged his conduct was in heedless and reckless disregard of the rights of plaintiffs.

Defendant denies negligence and alleges that if he was negligent in any respect his negligence was imputable to Mrs. Harper, the owner of the automobile, who was present, possessing the right to direct and control the operation of the automobile, and that in any event she is not entitled to recover.

Separate issues in each case were submitted to and answered by the jury in favor of plaintiffs. From judgments thereon defendant appealed.

Goebel Porter, of Charlotte, for plaintiffs-appellees.

Gold, McAnally & Gold and Rupert T. Pickens, all of High Point, for defendant-appellant.

BARNHILL, Justice.

There are only two exceptions in the record which require discussion: (1) Did the court err in denying the defendant's motion to dismiss as in case of nonsuit, and (2) was there error in the court's charge on the second issue in the case of Harper v. Harper?

The accident occurred in the State of South Carolina. Hence, in ascertaining the liability of defendants, the standard of conduct of the parties must be measured by the law of that State. Harrison v. Atlantic Coast Line R. R., 168 N.C. 382, 84 S.E. 519; Hale v. Hale, 219 N.C. 191, 13 S.E.2d 221; Russ v. Atlantic Coast Line R. R., 220 N.C. 715, 18 S.E.2d 130. 'The actionable quality of the defendant's conduct in inflicting injury upon the plaintiff must be determined by the law of the place where the injury was done.' Howard v. Howard, 200 N.C. 574, 158 S.E. 101, 102." Baird v. Baird, 223 N.C. 730, 28 S.E.2d 225, 226.

The South Carolina statute denies a right of action by a guest passenger on an automobile against the owner or operator "for injury, death or loss, in case of accident unless such accident shall have been intentional on the part of said owner or operator or caused by his heedlessness orhis reckless disregard of the rights of others." S.C.Code, Sec. 5908(1).

The language of the statute indicates an intention to limit such liability to two classes of cases: First, when the accident was caused by intentional misconduct; and, second, when it was caused by a heedless or reckless disregard of the rights of others, meaning thereby something more than the mere failure to exercise the care of a reasonably prudent man, which is the familiar definition of negligence. Fulghum v. Bleakley, 177 S.C. 286, 181 S.E. 30; Cummings v. Tweed, 195 S.C. 173, 10 S.E.2d 322.

In applying the statute the phrase "caused by his heedlessness or his reckless disregard of the rights of others" must be construed to read "caused by his heedless and his reckless disregard of the rights of others." Fulghum v. Bleakley, supra ; Cummings v. Tweed, supra; Peak v. Fripp, 195 S.C. 324, 11 S.E.2d 383.

"Heedless" in this connection means careless. It docs not add to the significance or the characterization or the force of the act or conduct done in reckless disregard of the rights of others by the owner or operator. Act or conduct in reckless disregard of the rights of others is improper or wrongful conduct, and constitutes wanton misconduct, evincing a reckless indifference to the life or limb or health or reputation or property rights of another. Fulghum v. Bleakley, supra; Cummings v. Tweed, supra; Pardue v. Pardue, 167 S.C. 129, 166 S.E. 101; Peak v. Fripp, supra; Spurlin v. Colprovia Products Co., 185 S.C. 449, 194 S.E. 332; Proctor v. Southern Ry. Co, 61 S.C. 170, 39 S.E. 351; Gosa v. Southern Ry, 67 S.C. 347, 45 S.E. 810; Cole v. Blue Ridge Ry. Co, 75 S.C. 156, 55 S.E. 126; Siesseger v. Puth, 213 Iowa 164, 239 N.W. 46.

Evidence of a conscious failure to perform a positive duty or to observe a statutory requirement--a conscious failure to do a thing that is incumbent upon one to do or the doing of a thing intentionally that one ought not to do--is sufficient to warrant a reasonable inference of recklessness, wilfulness, or wantonness, and, therefore, sufficient to carry that issue to the jury. Lumpkin v. Mankin, 136 S.C. 506, 134 S.E. 503; Ford Atlantic Coast Line R. R. Co, 169 S.C. 41, 168 S.E. 143; Ralls v. Saleeby, 178 S.C. 431, 182 S.E. 750.

If any testimony is introduced touching or supporting allegations as to the defendant's failure to keep a proper lookout or have proper control, it would ordinarily be a question for the jury whether such conduct constituted a reckless disregard of the rights of the passengers'. Spurlin v. Colprovia Products Co, supra; Cummings v. Tweed, supra; Callison v. Charleston & W. C. Ry. Co, 106 S.C. 123, 90 S.E. 260.

So then the South Carolina guest statute, as interpreted by the Supreme Court of that State, comes to this: If the negligent failure to exercise due care was the result of mere inadvertence or casual inattention, it is simple negligence and a guest passenger may not recover. On the other hand, if there was a conscious failure to be careful for the safety of others or to observe the rules of the road, then an inference of recklessness is permissible. And, when there is testimony tending to show that defendant failed to keep a proper lookout or to observe the positive commands of the traffic statute, it is for the jury to say, under all circumstances, whether such conduct evidences a heedless and reckless disregard of the rights of others.

It is the duty of a motorist, while operating his automobile, to keep a proper lookout and to keep his car under proper control. There is evidence tending to show that defendant admits that he failed to do so. He attributes his inattention to drowsiness followed by complete unconsciousness. In any event, on this record, he either failed to keep.a proper lookout and to give due attention to the manner of operation or, looking where he was going, he intentionally swerved his car to the left and drove his automobile down a thirty-foot embankment. His conduct can be ex-plained only on one postulate or the other. It is more charitable to assume that his act was not deliberate.

Even so, he knew he was drowsy. He had fallen asleep once before. Sleep, "tired nature's sweet restorer", is usually indicated by certain premonitory symptom and does not come upon one unheralded. These premonitory symptoms were present on this occasion. If defendant disregarded these warnings and instead, knowing that he was in no condition to exercise that degree of alertness and care in keeping the lookout required of a motorist, continued to operate the automobile, then the in-ference that his conduct was not mere inadvertence but amounted to a conscious failure to be careful of the safety of others is permissible. The nature and quality of his act, whether an inadvertence or a conscious failure to perform a positive duty, was for the jury to decide.

Decisions in other jurisdictions are to like effect. Ryan v. Scanlon, 117 Conn. 428. 168 A. 17; Blood v. Adams, 269 Mass. 480, 169 N.E. 412; Manser v. Eder, 263 Mich. 107, 248 N.W. 563; Marks v. Marks, 308 Ill.App. 276, 31 N.E.2d 399; Rice-Stix Dry Goods Co. v. Self, 20 Tenn.App. 498, 101 S.W.2d 132; Perkins v. Roberts, 272 Mich. 545, 262 N.W. 305; Wismer v. Marx, 289 Mich. 38, 286 N.W. 149; Koufman v. Feinberg, 298 Mass. 270, 10 N.E.2d 91.

There is no variance between the allegation and proof. The plaintiff alleges:

"That the injuries to the plaintiff herein...