Kennedy v. Carter, 18613

Decision Date02 March 1967
Docket NumberNo. 18613,18613
Citation249 S.C. 168,153 S.E.2d 312
PartiesIvory KENNEDY, Respondent, v. Raymond CARTER, John L. Paden, Green Valley Country Club, and one 1960 FordRanch Wagon, of whom Raymond Carter is the Appellant.
CourtSouth Carolina Supreme Court

Ernest J. Howard, Greenville, for appellant.

Mann, Foster, Johnston & Ashmore, Harry Chapman, Jr., Greenville, for respondent.

MOSS, Chief Justice:

Ivory Kennedy, the respondent herein, instituted this action to recover damages for personal injuries alleged to have been sustained by reason of the joint and several reckless, willful and unlawful acts and omissions of John L. Paden and James Allen Carter, the driver of an automobile owned by Raymond Carter, the appellant herein.

The action arose out of an accident which occurred at approximately 1:15 o'clock A.M. on August 5, 1964, on a frontage road of Highway I--85 in Greenville County. The respondent was riding as a passenger in an automobile driven by James Allen Carter, son of the appellant; it being admitted that said automobile was owned and maintained by him for family uses and purposes. In the unverified complaint of the respondent it was alleged that the automobile in which he was riding as a passenger swerved to the right and skidded several hundred feet into a highway sign. It is conclusive from the record that the defendant Paden, while under the influence of alcoholic beverages, was driving his automobile at a high, dangerous and unlawful rate of speed to the left of the center line of the highway and in the lawful lane of traffic reserved to the use of James Carter and the respondent. The respondent alleged in his complaint that the defendant Paden failed to keep a proper lookout and failed to keep his automobile under proper control. Assigned as specific allegations of negligence and recklessness on the part of the appellant in the operation of his vehicle were the following acts and omissions: (1) excessive speed; (2) failure to keep a proper lookout; and (3) failure to maintain proper control. The appellant, in his answer, denied any negligent, reckless, willful and unlawful acts and omissions on his part and asserted that the respondent was riding as a guest in his automobile, as defined in Section 46--801 of the Code.

The case came on for trial before The Honorable James H. Price, Jr., Judge of the Greenville County Court, and a jury, on November 1, 1965. At appropriate stages of the trial the appellant moved for a nonsuit and directed verdict. These motions were refused and the case submitted to the jury, which returned a verdict in favor of the respondent against the appellant and John L. Paden for actual and punitive damages. Following the verdict, the appellant made a motion for judgment Non obstante veredicto upon the same ground as his previous motions for nonsuit and directed verdict, such being that the respondent was a guest passenger in appellant's automobile and the evidence was insufficient to show recklessness and willfulness necessary to impose liability under the guest statute. The motion was refused and this appeal followed.

It is conclusive from the record that at the time the accident occurred the respondent was a guest passenger in the automobile of the appellant. Section 46--801 of the Code restricts liability for injury suffered by a guest passenger to cases where such has resulted from either intentional or reckless misconduct of the owner or operator of the motor vehicle. This court has held that the only duty that the operator of an automobile owes to a guest passenger is not to injure him willfully or by conduct in reckless disregard of his rights. Under such statute, a guest cannot recover against the owner or operator of an automobile for simple negligence. Elrod v. All, 243 S.C. 425, 134 S.E.2d 410. Under the guest statute intentional or reckless misconduct of the owner or operator of a motor vehicle is not actionable unless it is either a proximate or a concurring proximate cause of the injury complained of, and may be deemed such a cause only when without such intentional or reckless misconduct the injury would not have occurred or could have been avoided. Hence, the burden was upon the respondent to establish the intentional or reckless misconduct of the owner or operator of the motor vehicle in at least one of the specifications alleged in his complaint, and that such was a proximate or a concurring proximate cause of the injury sustained by the respondent. Gunnels v. Roach, 243 S.C. 248, 133 S.E.2d 757.

It is a well established rule of law in passing upon the exceptions of the appellant to the refusal of the trial judge to grant his motions for a nonsuit, directed verdict and judgment Non obstante veredicto, it is incumbent upon this court to view the evidence and the inferences fairly deducible therefrom in the light most favorable to the respondent. If more than one reasonable inference can be drawn from the evidence the case must be submitted to the jury. However, if the evidence is susceptible of only one reasonable inference, the question is no longer one for the jury but one of law for the court. Warren v. Watkins Motor Lines, 242 S.C. 331, 130 S.E.2d 896.

Prior to the accident involved in this case, the appellant had gone to the home of the respondent to pick him up so that they could go to the Ghana Motel in accordance with plans they had made earlier in the day. The Ghana Motel is located on a frontage road which runs parallel to Highway I--85. The frontage road is a two lane asphalt roadway with a center line and yellow lines at periodic points. This road is not a level one but between the Ghana Motel and the place of the accident there are several knolls or hills. A few minutes before the accident occurred, the appellant and the respondent left the Ghana Motel and were on their way home, proceeding in a westerly direction on the frontage road. A 1960 Ranch Wagon driven by John L. Paden was proceeding in an easterly direction on the frontage road toward the Ghana Motel. Paden had five passengers in the Ranch Wagon he was driving, four of whom testified in behalf of the respondent.

The testimony shows that the automobile driven by James Allen Carter was proceeding along the frontage road and met the Ranch Wagon driven by Paden at the crest of a hill. The four passengers in the Ranch Wagon testified that Paden had been drinking and was 'half drunk' or 'high' at the time he was meeting the automobile driven by Carter. They further testified that Paden was driving his automobile in such a manner as to cause it to weave back and forth from one lane of the road to the other and that as his automobile approached the crest of the hill it was to the left of the center line and in the lane of travel in which Carter was lawfully driving. The testimony of all the witnesses who were occupants of the respective cars was that because of the hill the headlights from the cars approaching each other could not be seen but the glow of the lights could be seen. The two vehicles were not in full view of each other until they reached the crest of the hill and the witnesses agree that at that time the vehicles were from a half car length to a car length and a half from each other. At that time Paden was driving his automobile in the wrong lane of traffic and Carter was driving in the proper lane. When the cars were meeting at the crest of the hill one of the passengers in the Paden automobile grabbed the steering wheel and turned the car to the right and at the same time Carter turned his automobile to his right and it went off the road and down an embankment, striking a sign, resulting in damage to the automobile and injury to the respondent.

The trial judge in his order refusing the appellant's motion for judgment Non obstante veredicto held that the Carter automobile 'had to leave the road in order to avoid colliding head-on with an automobile operated by the defendant Paden' on the respondent's and appellant's side of the road. The parties to this appeal agreed in the statement of the case that this was true. All of the witnesses, including the respondent, who were passengers in the respective automobiles so testified. Confirmatory of the foregoing is the testimony given by the respondent with reference to Carter turning off of the road.

'Q. * * * if he had not turned off of that road, you would have hit that station wagon head-on wouldn't you?

'A. Definitely, yes, sir; head-on.'

It is the position of the appellant that the evidence in this case was insufficient to show any actionable reckless, willful or intentional conduct on his part which operated either as a concurring or a proximate cause of the injury to the respondent. The testimony of the respondent exonerates the appellant of any such conduct. We quote from such testimony:

'Q. Do you know how fast you were going immediately prior to the accident?

'A. Well, I could't say; but I'll say a good estimate maybe about fifty-five or sixty miles an hour.

'Q. All right. Were you on your proper side of the road prior to the accident?

'A. Yes, sir.'

'Q. About how far in front of you would you say this automobile was when you first saw the lights themselves? I don't mean the reflection of the lights, I mean when you saw the front of the car?

'A. Looked like to me it was about a half a car length.

'Q. About a half a car length when you first saw the lights?

'A. Yes, sir. And I thought we was going to hit like that.'

'Q. This car that came over the hill whose lane was it in?

'A. It was in our lane; looked like he was in the front seat with us, right up on us.'

'Q. * * * at all the times that you were with him in that car both before he got to the motel and after he left the motel he had the car under control, didn't he?

'A. To my knowledge, yes, sir.'

'Q. Now is there any question in your mind about the fact he had the car under control at all times?

'A. I know he had it under control.'

'Q. And he...

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