Langley v. Boyter

• Citation: 325 S.E.2d 550,284 S.C. 162
• Decision Date: 26 January 1984
• Docket Number: No. 0325,0325
• Court: Court of Appeals of South Carolina
• Parties: Robin LANGLEY, Appellant, v. James Lee BOYTER and Concrete Specialties of America, Respondents. . Heard

Page 550

325 S.E.2d 550

284 S.C. 162

Robin LANGLEY, Appellant, v. James Lee BOYTER and Concrete Specialties of America, Respondents.

No. 0325.

Court of Appeals of South Carolina.

Heard Jan. 26, 1984.

Decided Nov. 29, 1984.

Kenneth M. Suggs, of Suggs & Kelly, Columbia, for appellant

H. Fred Kuhn, Jr., Beaufort, on behalf of S.C. Trial Lawyers Ass'n; and Charles E. Carpenter, Jr., Columbia, and Lawrence B. Orr, Florence, on behalf of S.C. Defense Trial Attys.' Ass'n, for amicus curiae.

Robert G. Currin, Jr., of Nelson, Mullins, Grier & Scarborough, Columbia, for respondents.

SANDERS, Chief Judge:

The single question presented by this appeal is whether the common law doctrine of contributory negligence should be abrogated by this court and the doctrine of comparative negligence adopted in its place. ¹

I THE FACTS

Appellant Robin Langley sued respondents James Lee Boyter and Concrete Specialties of America alleging in her complaint that she suffered serious personal injuries when the car she was driving collided with a car being driven toward her by Mr. Boyter as an agent of Concrete Specialties. Her complaint further alleged that the collision and her resulting injuries were caused by Mr. Boyter's driving on "the wrong side of the road," and that he was negligent, careless and reckless in driving too fast for conditions and in failing to maintain a proper lookout and control of the car he was driving. Mr. Boyter answered with a general denial of the material allegations of the complaint and further alleged that any injury or damage suffered by Ms. Langley was caused by her own negligence, recklessness, wilfulness and wantonness "in operating her vehicle on the wrong side of the road," in failing to maintain a proper lookout and control of her car and in failing to brake or steer her car so as to avoid the collision. Finally, Mr. Boyter pleaded in his answer Ms. Langley's "contributory negligence, recklessness, wilfulness and wantonness as a complete bar to this action."

At trial, Ms. Langley testified that as she drove her car into a curve, the car being driven by Mr. Boyter "came around the curve into my lane and hit me." She went on to testify that the front of the Boyter car struck her car at "the front left fender between the fender and the door," and A highway patrolman who investigated the accident testified he found Ms. Langley's car on her side of the road with its front end on the shoulder and Mr. Boyter's car in Ms. Langley's lane of travel.

after the impact both cars came to rest on her side of the road with her car partially "off the road in my lane."

Mr. Boyter testified he did not cross from his half of the road into the opposite lane before impact and he believed Ms. Langley's car was partially in his lane when the collision occurred.

Another witness testified Ms. Langley was driving at an excessive rate of speed and her car crossed over the center line of the road by "approximately one and a half to two feet" prior to the collision.

At the pre-trial conference, Ms. Langley moved to strike the defense of contributory negligence and requested the judge to charge the doctrine of comparative negligence instead. The trial judge denied these motions and at trial charged the doctrine of contributory negligence. Ms. Langley excepted to the charge and again requested that the doctrine of comparative negligence be charged. The trial judge denied this request. The case was submitted to the jury which returned a verdict for Mr. Boyter and Concrete Specialties. Following the verdict, Ms. Langley moved for a new trial on the ground that the trial judge refused to strike the defense of contributory negligence and charge the doctrine of comparative negligence. The trial judge denied this motion. Ms. Langley then appealed.

Respondents first argue that even if the doctrine of comparative negligence were to be recognized in South Carolina, it would be inapplicable to this case because the only question of fact was whether Mr. Boyter or Ms. Langley was driving on the wrong side of the road. We reject this argument. In our view of the evidence, the jury could have found that negligence by both Mr. Boyter and Ms. Langley caused the collision. For example, it could have found Mr. Boyter was driving on the wrong side of the road and Ms. Langley was driving too fast for conditions. The jury also could have found Ms. Langley and Mr. Boyter were both driving partially on the wrong side of the road. If a finding of negligence by both parties was not possible, the defense of contributory negligence pleaded by Mr. Boyter and Concrete Specialties and the charge of the trial judge on this defense would have been inappropriate, and the case would have to be reversed on that ground alone. See White v. Fowler, 276 S.C. 370, 278 S.E.2d 777 (1981) (it is reversible error to charge a correct principle of law when the principle is inapplicable to the issues on trial).

II THE DOCTRINE OF CONTRIBUTORY NEGLIGENCE AND ITS HISTORY

Generally speaking, under the doctrine of contributory negligence, if the negligence of a plaintiff contributed to his damages, he is barred from recovering anything against a defendant guilty of even greater negligence. ² The earliest case recognizing the doctrine is Butterfield v. Forrester, 11 East 60, 103 Eng.Rep. 926 (1809). ³ In that case, the defendant obstructed a public road by placing a pole across a part of it. The plaintiff, riding his One person being at fault will not dispense with another's using ordinary care for himself. Two things must concur to support this action, an obstruction in the road by the fault of the defendant, and no want of ordinary care to avoid it on the part of the plaintiff.

horse too fast to see the pole, rode into it and was injured. The doctrine of contributory negligence was announced by Lord Chief Justice Ellenborough:

Butterfield, 103 Eng.Rep. at 927.

The doctrine was first adopted in this country in Smith v. Smith, 2 Pick. 621 (Mass.1824). Most states proceeded to adopt the doctrine soon thereafter. H. Woods, The Negligence Case: Comparative Fault § 1:4 (1978) (hereafter cited as Woods, The Negligence Case ).

South Carolina first recognized the doctrine in dictum in Freer v. Cameron, 38 S.C.L. (4 Rich.) 228 (1851). In that case the trial judge charged the jury that if, under all the circumstances, the plaintiff could have avoided the accident by the exercise of that degree of prudence which a reasonable person might be expected to exercise in her position, then she ought not to recover. The plaintiff apparently took no exception to this charge and did not dispute the law thus stated on appeal. Consequently, the Court of Appeals decided the issue of contributory negligence on a point of evidence, not a question of law: "We cannot discover in the evidence reported anything which makes the law cited for the defendants, and not disputed, available for their protection." Freer at 232. Although the defendants cited Butterfield as authority, that decision was neither mentioned nor approved in the opinion of the Court. It therefore appears that South Carolina first acknowledged the doctrine of contributory negligence in a case where it was held inapplicable and in which the issue of whether it should be adopted as the common law of this State was not raised. Subsequent cases simply cited Freer without further analysis as precedent for applying the doctrine. ⁴ The doctrine has resided in this house of cards ever since. Surprisingly, we can find no reported South Carolina case in which it has been challenged.

It can be argued that a possible basis for recognition of the doctrine is found in the reception statute passed by the provincial assembly in 1712. 2 S.C.Stat. 401 (1712). This statute provided: ⁵

That all and every part of the Common Law of England, where the same is not altered by the above enumerated Acts, or inconsistent with the particular constitutions, customs and laws of this Province ... is hereby enacted and declared to be of ... full force in this Province ....

2 S.C.Stat. at 413-414. In 1812, our Supreme Court first addressed the effect of the Act of 1712 in Shecut v. McDowel, 6 S.C.L. (1 Tread.) 35, 38 (1812):

The ... question ... is whether ... this Court is to be governed by the principles of the Common Law, as settled in England .... [O]ur act of Assembly, passed in the year 1712, says, the Common Law of England shall be in as full force and virtue in this State as in England. And even if it did not, I do not know by what other law we should be governed; for the Common Law is as much the law of this country as of England. I do not mean to say, that we are bound by every decision made by the courts of England. We have a right to take our own view of the Common Law; but, when a principle of law has been settled for ages, by a series of uniform decisions, the reasons must be very strong, that would authorize a departure When the statute of 1712 was enacted, the doctrine of contributory negligence had not yet been recognized in England. At the time the Court in Shecut defined the extent to which the common law of England is applicable in South Carolina, the doctrine was not a principle of law which had been settled for ages. Rather, it was a mere infant of three years in England and was not even born in this country until some twelve years later. No opinion of our Supreme Court recognizing or applying the doctrine cites or discusses this statute as a basis for doing so. For these reasons, we conclude that the doctrine of contributory negligence has no independent statutory basis in South Carolina as a doctrine of general application.

from it; and, in no case, ought an established rule to be given up, without substituting another in its place. It would be launching into a boundless ocean of uncertainty; without a compass by which to direct our course.

Three South Carolina statutes make contributory negligence a bar to recovery...