Kelly v. Kelly

• Decision Date: 26 November 1930
• Docket Number: 13036.
• Citation: 155 S.E. 888,158 S.C. 517
• Parties: KELLY v. KELLY.
• Court: South Carolina Supreme Court

155 S.E. 888

158 S.C. 517

KELLY v. KELLY.

No. 13036.

Supreme Court of South Carolina

November 26, 1930

Appeal from Common Pleas Circuit Court of Richland County; C.J Ramage, Judge.

Action by Miss Nellie Kelly, by her guardian ad litem, Porter A McMaster, against Mrs. Lizzie Kelly. From an order overruling a demurrer to the complaint, defendant appeals.

Reversed and complaint dismissed.

D. M Winter, of Columbia, for appellant.

W. M. Graydon, of Columbia, for respondent.

CARTER J.

This action by the plaintiff, Miss Nellie Kelly, by her guardian ad litem, against the defendant, Mrs. Lizzie Kelly, commenced in the court of common pleas for Richland county, May, 1930, is an action for damages in the sum of $10,000, for personal injury alleged to have been sustained by the plaintiff while riding in an automobile with the defendant in the city of Columbia, S. C., on account of the negligent acts of the defendant. The plaintiff, according to the allegations of the complaint, is the daughter of the defendant, being twelve years of age, and resides with the defendant in the said city of Columbia. The defendant having interposed a demurrer to the complaint in the cause, the demurrer was heard by his honor, Judge C.J. Ramage, who after due consideration issued an order overruling the same, from which order the defendant, pursuant to due notice, has appealed to this court.

For the purpose of a clear understanding of the question raised by the appeal, we quote herewith the complaint and demurrer:

Complaint.

"A. That both she and the defendant are residents and citizens of the State and County above named and reside at No. 1211 Huger street and that the defendant is the mother of the plaintiff.

"B. That on or about the 7th day of October, 1929, the defendant Lizzie Kelly invited this plaintiff to go for an automobile ride with her, the plaintiff, sometime in the afternoon, and in compliance with said invitation and request this plaintiff agreed to and consented and did in fact get in a certain Ford Touring Car belonging to the defendant for and in accordance with the aforesaid invitation.

"C. That when in said car the defendant proceeded from the 1200 block of Huger Street in a Northern direction along said Huger Street and after passing the intersection of Huger and Lady Streets and while having passed said intersection only a few yards and traveling at a high and excessive rate of speed the car of the defendant crashed into another car being driven in the opposite direction, to wit, South on Huger Street, with great force and violence, doing great damage to both of said cars and injuring the plaintiff as is hereinafter set forth.

"D. That by reason of and as a result of the aforesaid collision of said cars this plaintiff was painfully, seriously and permanently injured, was made to suffer great physical pain and suffering and great mental anguish for several months and that she will continue to suffer great mental and physical pain and has been seriously and permanently injured.

"E. That as a direct and proximate result of the negligence and carelessness of the defendant as herein set forth and as may be hereinafter set forth the plaintiff has had her leg fractured in three places below the knee and has had her knee cap completely shattered and cut in twain, has been forced to lose a whole year at school, in that she is twelve (12) years of age and in the sixth grade of the Columbia Graded Schools, for the reason that she has at this time had to keep and still has to keep her leg in a plaster cast, for a period of about two months to this date, and as a result thereof she has lost a whole year at school; said broken leg and knee cap having resulted from the collision afore described.

"F. That the aforesaid injuries to this plaintiff were caused and occasioned as a direct and proximate result of the following negligent acts of the defendant, as follows:

"1. In failing to carefully and properly drive said automobile along a public street of the city of Columbia.

"2. In passing an intersecting Street at a greater and higher rate of speed than that allowed by law in violation of the ordinances of the City of Columbia and the statutes of the State of South Carolina.

"3. In failing to keep a proper lookout for approaching vehicles.

"4. In passing and going around a car parked on said street

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