Irick v. Ulmer, No. 18370

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: MOSS; This case came on for trail before the Honorable A. L. Hardee; TAYLOR
• Citation: 246 S.C. 178,143 S.E.2d 126
• Parties: Lesiie W. IRICK, Appellant, v. J. C. ULMER, Respondent.
• Docket Number: No. 18370
• Decision Date: 30 June 1965

Page 126

143 S.E.2d 126 246 S.C. 178 Lesiie W. IRICK, Appellant,
v.
J. C. ULMER, Respondent. No. 18370. Supreme Court of South Carolina. June 30, 1965.

[246 S.C. 179] Gressette & Gressette, St. Matthews, Bryant & Fanning, Orangeburg, for appellant.

Horger & Horger, Orangeburg, for respondent.

MOSS, Justice.

Leslie W. Irick, the appellant herein, instituted this action against J. C. Ulmer, the respondent herein, to recover [246 S.C. 180] damages for personal injuries alleged to have resulted from a collision between an automobile driven by the appellant and a team of mules and a wagon, owned by the respondent, and being driven by one Abraham Moore. The appellant alleges that the said Abraham Moore was an agent and servant of the respondent and was driving the mules and wagon in the scope of his employment and upon the business of the respondent. It is agreed that the collision occurred on September

Page 127

5, 1960, on State Highway No. 47, about three miles southwest of Elloree, South Carolina. The record reveals that the team of mules and the wagon were being drive in a southwesterly direction on the aforesaid highway and that the appellant driving in the same direction collided with the rear of the wagon.

The appellant, in his complaint, alleges that his injuries were proximately caused by the negligence and willfulness of the respondent, by his agent and servant, in operating the said team of mules and wagon upon the aforesaid public highway without having the animal-drawn wagon equipped with a tail lamp or reflector, or if the same was so equipped, in failing to have such in operation to warn vehicles to the rear of the presence of said team of mules and wagon upon the said highway; in causing and allowing the said animal-drawn vehicle to be driven upon the aforesaid public highway when the respondent knew or should have known that it was not equipped with a tail lamp or reflector, as required by Section 46-540 of the Code; in permitting the said animal-drawn vehicle to be operated on a public highway by an inexperienced driver; in failing and omitting to have the said vehicle under proper care and control; and in permitting the said animal-drawn vehicle to be operated in such a manner as to endanger the safety of persons using and traveling upon said highway.

The respondent, by his answer, denied all of the allegations of negligence and willfulness but admitted the ownership of the team of mules and wagon. He specifically denied that the mules and wagon were being driven and operated by Abraham[246 S.C. 181] Moore as his agent and servant or that such were being operated in the scope of his employment in behalf of or upon the business of the respondent. The respondent also alleged that appellant's injuries resulted from his own sole and contributory negligence and willfulness, due to his failure to keep a proper lookout, to observe others using the highway, to have his vehicle under control, failure to apply his brakes and driving his vehicle at an excessive rate of speed.

This case came on for trail before the Honorable A. L. Hardee, Special Judge, and a jury, at the 1963 October term of the Court of Common Pleas for Orangeburg County, and resulted in a verdict for the respondent. After the rendition of the verdict for the respondent, a motion for a new trial was heard and refused by the Trial Judge. This appeal followed.

It appears from the testumony that the respondent owns a tract of land containing one hundred and seventy acres adjacent to State Highway No. 47. The respondent testified that for the year 1960 he had a sharecrop agreement with one Sam Moore and by the terms thereof he was to furnish the land, one-half of the fertilizer, the farming implements, including the wagon and team of mules, and the said Moore was to plant, work harvest and market the crop of cotton and after the payment for the fertilizer, the proceeds of the sale of the cotton were paid by the cotton ginner, one-half to the respondent and the other one-half to Sam Moore. The testumony further shows that the wagon and mules were to be used by Moore solely for the purpose of tending the farm. It was further testified that the respondent exercised no supervision or direction over Moore in his farming operations. At the time of the collision, the wagon and team of mules, owned by the respondent, were being driven along State Highway No. 47 by Abraham Moore, a fifteen year old son of Sam Moore. On the day in question, Sam Ella Oliver, Moore's daughter, had been picking cotton for him and when she...