Munn v. Price

• Decision Date: 03 October 1932
• Docket Number: 13479.
• Citation: 165 S.E. 777,167 S.C. 98
• Parties: MUNN v. PRICE et al. CARTER v. SAME.
• Court: South Carolina Supreme Court

165 S.E. 777

167 S.C. 98

MUNN v. PRICE et al.

CARTER v. SAME.

No. 13479.

Supreme Court of South Carolina

October 3, 1932

Appeal from Common Pleas Circuit Court of Charleston County; T. J Mauldin, Judge.

Actions by J. C. Munn and Dalton Carter, respectively, against B George Price, trading and doing business as the Price Transportation Line, and one truck and trailer, bearing South Carolina license Nos. 1054 and 1053, respectively. Verdicts for plaintiffs, and, from an order denying defendants' motion for a new trial and judgments on the verdicts defendants appeal.

Affirmed.

See also, 160 S.C. 186, 159 S.E. 369.

C. B. Pearce and Lionel K. Legge, both of Charleston, for appellants.

Thomas P. Stoney, J. D. E. Meyer, and M. E. Crosland, all of Charleston, for respondents.

CARTER J.

These cases arose out of the same automobile accident, were tried together in the lower court and heard together in this court. The case of J. C. Munn against the defendants, B. George Price, trading and doing business as the Price Transportation Line, and one truck bearing state of South Carolina license No. 1054 and one trailer bearing state of South Carolina license No. 1053, an action for damages for alleged personal injuries and property damage in the amount of $6,000, was commenced in the court of common pleas for Charleston county, March 17, 1930; and the case of Dalton Carter, as plaintiff, against the same defendants, is an action for damages for personal injuries, in the sum of $6,000, commenced in said court March 12, 1930. Issues being joined, answers having been filed by the defendants in each case, the cases were tried at the April, 1931, term of said court before his honor, Judge T. J. Mauldin, and a jury, resulting in a verdict for the plaintiffs in each case. Thereafter a motion for a new trial was made by the defendants, which motion his honor, Judge Mauldin, refused. From the said order refusing the motion for a new trial and from the judgments entered on the verdicts, the defendants have appealed to this court.

The errors which the appellants impute to the trial judge are set forth under six exceptions, but, as stated in the brief of counsel for appellants, there are only five questions presented for consideration. The first, second, and third questions, as stated by appellants, which we shall consider together, are as follows:

"First: Taking into consideration all the testimony in these cases were the verdicts contrary to evidence? (Exception One).

" Second: Was the only reasonable inference to be drawn from the testimony that the plaintiff Munn was guilty of contributory negligence? (Exception Two).

"Third: Was the only reasonable inference to be drawn from the testimony that the plaintiff Munn was acting as the agent of the plaintiff Carter in the operation of the automobile at the time of the accident and that they were engaged in a joint and common enterprise so that the negligence shown on the part of the plaintiff Munn should have defeated a recovery by both plaintiffs? (Exception Three)."

In the agreed statement of counsel set forth in the transcript of record, the following statement appears as to the facts: "On the afternoon of March 3, 1930, the truck of the defendant B. George Price was proceeding from Charleston to Walterboro, S. C., with a load of empty turpentine barrels. Coming in the opposite direction was the automobile of the plaintiff J. C. Munn, driven by him, and in which were riding three other men, among them the plaintiff, Dalton Carter. When the truck and the automobile were nearly abreast, one of the barrels fell from the truck to the concrete road and bouncing up struck the automobile, causing Munn, who was driving the automobile, to lose control, and the car after traveling some distance, ran into a ditch and was damaged and Munn and Carter sustained personal injuries." In addition to the above agreed statement regarding the substantive facts in the case, it was alleged by both of the plaintiffs that the said truck, owned by the said B. George Price, and operated by him, his agents and servants, approached the automobile in which the plaintiffs were riding at a high and unlawful rate of speed, with barrels piled carelessly and negligently and without due regard to the safety of the traveling public, and, when the car in which the plaintiffs, in the respective cases, were riding, and the said truck were about opposite each other on the said highway, a barrel rolled off of the said truck striking the radiator of the said automobile, and rebounding against the dash, caused the said automobile to swerve to the right, locking the wheels of the same so that it shot across the road to the left and into a ditch paralleling the said highway, and, as a result, caused the damages alleged. Among the specific allegations of recklessness, carelessness, willfulness, and wantonness alleged against the defendant, B. George Price, his agents and servants, in causing the alleged personal injuries and property damage, were the following:

"(a) In operating and causing to be operated the motor truck on one of the highways of the State of South Carolina, at a rate of speed greater than that authorized by the laws of the State of South Carolina, with reference to the speed of the motor trucks on the highway.

"(b) In operating, permitting, and allowing the said motor truck to be operated when loaded with empty barrels on the said highway, without taking due care and caution to prevent the said barrels from rolling, jarring and/or falling off of the said truck.

"(c) In permitting and allowing the said truck to be improperly loaded with empty barrels when the defendant, his agents and servants, knew or should have known that the said empty barrels would be jarred off or thrown off of the said truck, and thus injure other motorists using the said highway.

"(d) In failing and omitting to take any precaution or do anything whatsoever to prevent the said barrels from falling off of the said truck and thus injuring the plaintiff.

"(e) In causing, allowing, and permitting the said truck to proceed on the said highway when the defendant, his agents and servants, knew or should have known that the said truck was loaded with empty barrels in a careless, reckless manner, in that they were piled on same above frame of the body.

"(f) In causing and permitting the said truck to proceed along the said highway, when the defendant, his agents and servants, knew or should have known that the empty barrels were improperly and dangerously placed and situated on the said truck."

The defendants, in their answer, admitted the formal allegations of the complaint but denied all of the material allegations contained therein, except those stated in the agreed statement of counsel set forth hereinabove; and alleged, in effect, that the accident referred to, and the injuries and damages resulting therefrom, were caused by the negligence and recklessness of the plaintiff, J. C. Munn, in operating the said automobile on said highway in a careless, reckless, and negligent manner, and at a rate of speed greater than that authorized by the state of South Carolina; also in failing to take due caution and drive his automobile in a manner commensurate with existing conditions, and in driving said automobile in violation of section 581 of the Criminal Code of South Carolina, and in failing to operate the said automobile in a manner to "avoid striking the said truck without wrecking the automobile"; and, further, alleged that the injuries and damages sustained by the plaintiffs were due entirely to the gross carelessness and negligence of the said J. C. Munn, "in not diminishing the speed at which he was operating his car when he could see the truck which he alleges was carelessly and improperly loaded, and in approaching said truck at such a dangerous and reckless rate of speed, utterly failing to take any precaution for his own safety or that of his passengers, and although knowing the obvious danger of passing a truck which, as he alleges, was overloaded and the barrels in which were carelessly placed, failed to have his car under control so that when an emergency arose, due to the speed at which he was traveling, completely crossed the road, the car turning completely around, going in the ditch on the right hand side and facing in the opposite direction before he could bring it to a stop, all of which carelessness and negligence was the proximate cause of the accident or contributed as a proximate cause thereto." The defendant also interposed the plea of contributory negligence; and, in the answer to the complaint in the Carter Case, in addition to making similar allegations to those contained in the answer to the Munn complaint, alleged that all of the acts committed by Munn were concurred in by Carter, and alleged that Carter was engaged with Munn in a joint and common enterprise at the time of the alleged accident and resultant injuries and damages sustained by the plaintiffs.

The exceptions raising the issues stated above cannot be sustained, for the reason that the testimony introduced at the trial of the case, as disclosed by the transcript of record, shows clearly that an issue of fact was raised for the jury on the material questions involved in the case at the trial. Even if it be conceded that the plaintiff Munn was, at the time in question, acting as the agent of the plaintiff Carter in the operation of the automobile and that they were engaged in a joint and common enterprise, the exceptions raising this question cannot be sustained, for the reason that it does not appear conclusively that the plaintiff Munn was the cause of the alleged injuries and consequent damages. More than one reasonable...