Hunter v. Boyd Et At, 15596.

• Decision Date: 03 December 1943
• Docket Number: No. 15596.,15596.
• Court: South Carolina Supreme Court
• Parties: HUNTER. v. BOYD et at.

28 S.E.2d 412

HUNTER.

v.BOYD et at.

No. 15596.

Supreme Court of South Carolina.

Dec. 3, 1943.

Appeal from County Court, of Greenville County; Oscar Hodges, Judge.

Action by Guy Hunter, as administrator of the estate of Cyril Hunter, de ceased, against Maston W. Boyd, Jr., and one Ford V-8 school bus 1940 model, motor and serial number 257743, 1941 license tag X-2433, to recover for the wrongful death of deceased. The trial court sustained a demurrer to the complaint, and plaintiff appeals.

Reversed as to the individual defendant and affirmed as to the school bus.

B. F. Martin, of Greenville, for appellant.

Mann & Arnold, of Greenville, for respondents.

L. D. LIDE, Acting Associate Justice.

This case comes to us upon an appeal from an order of the Greenville County Court sustaining the demurrer of the defendants to the complaint for insufficiency of factual allegations in an action brought to recover actual and punitive damages for the death by alleged wrongful act, neglect or default on the part of the defendants, of Cyril Hunter, a small boy seven years of age, the beneficiaries of such action being his parents.

It appears from the complaint that the child, Cyril Hunter, plaintiff's intestate, was a pupil in the West Gantt School in Greenville County, and that the defendant Boyd was the principal of the school and also the owner and operator of the school bus named in the title, the same being used "for the purpose of transporting the pupils of the school from their homes to the school, and from the school building to their homes."

It further appears from the complaint that on the night of October 25, 1940, there was a Hallowe'en play and party in the school building attended by pupils of the school, including Cyril Hunter. And it is also alleged that Cyril Hunter was committed by his parents to the protective care and custody of the defendant Boyd as the principal of the school and driver of the bus for the purpose of transporting him from the school building to his home after the play and party was over, together presumably with other pupils of the school; the home of Cyril Hunter being on U. S. Highway No. 29. We quote the following excerpt from the complaint: "The home was on what is known as U. S. Highway No. 29, and at that time of night, cars were passing frequently in each direction. Plaintiff is informed and believes that it was the duty of the defendant Boydto protect and care for, and safely to carry the child from his home to the school and from the school back to his home; nevertheless, he negligently and carelessly failed to so protect, care for, and carry the child, and negligently operated the bus in question by stopping same at a dangerous place, in the dark, on the much traveled highway referred to, with the intention of putting the child off there in the dark, and actually putting him off, quite a distance (some 167 yards) from his home, on the side of the highway opposite the said home, the place and the circumstances being obviously highly dangerous to the child. It was necessary for the child to cross the highway to get to the side on which his home was located, --and, regardless of the fact that cars were approaching the bus from both directions, the defendant Boyd did not care for and protect the child and see that he got safely across the highway, nor protect him in any manner whatever against the evident danger from approaching cars, --but on the contrary left him in a highly dangerous situation with the result that as the bus started off he ran from behind it to get across the road in front of another car that was driving in the same direction behind the bus, he was struck by the approaching northbound Plymouth car, and as a result received injuries from which, shortly thereafter, he died." (Italics added.)

It is alleged that this occurrence took place between 10:30 and 11 o'clock on the night of October 25, 1940. And the last two paragraphs of the complaint are to the effect that the death of plaintiff's intestate was due to the negligence and recklessness of the defendants, to the damage of the beneficiaries in the sum of $5,000, for which judgment is sought.

A demurrer was in due course filed to the complaint in behalf of both defendants, the grounds of the demurrer being stated separately as to each. The demurrer in behalf of the defendant Boyd is in substance that the complaint does not allege facts showing actionable negligence or recklessness, and that on the contrary the complaint shows on its face that the death of the child was occasioned by an independent and intervening cause, to wit, an automobile operated by some other person. The demurrer as to the school bus is to the same effect, except that there are added grounds stating that the school bus in no way struck or injured plaintiff's in testate and that he was not injured by any negligent or reckless operation thereof.

The County Judge sustained the demurrer and stated in his order that the complaint fails to allege any negligent or reckless act on the part of the defendants as a proximate cause of the alleged injury "except in the nature of conclusions by the pleader;" and that it further affirmatively appears that there was an entirely independent, efficient agency intervening which proximately caused the injury and resulting death. The exceptions of the appellant to this order challenge the correctness of these findings.

The school bus is a distinctly modern invention which has become a very important part of our educational system. But while it is comparatively new in operation the time honored principle of due care is applicable to a driver thereof. However, in view of the fact that the passengers transported on a bus of this character are children, many of whom of very tender years, it is manifest that the standard of due care would comprehend a high degree of caution and vigilance with respect to such a child. 42 C.J. 1049-51.

The statute of 1937 relating to school buses, now embodied in Section 1626-3, Code 1942, contains many provisions in regard to the equipment and operation of such buses, but these provisions do not limit in any way the common law requirement that due care shall be exercised, for on the contrary the statute is obviously designed to promote the safety of children using a school bus.

Applying these principles to the complaint herein, especially the part thereof above quoted, it seems apparent to us that it contains factual allegations, not mere conclusions of law, tending to show actionable negligence (or recklessness) on the part of the driver of the bus. Certainly it was his duty to stop the bus at a reasonably proper place, to the end that plaintiff's intestate might reach his home in safety. But it is alleged that in breach of such duty the place at which the bus was stopped on this occasion was dangerous because it was on a much traveled highway at quite a distance (some...