Murphy v. Smith, Civ. A. No. AC-1148-AC1153.

• Court: U.S. District Court — District of South Carolina
• Writing for the Court: Robinson, McFadden & Moore, with J. Means McFadden, Columbia, S. C., for defendants
• Citation: Murphy v. Smith, 243 F.Supp. 1006 (D. S.C. 1965)
• Decision Date: 23 July 1965
• Docket Number: Civ. A. No. AC-1148-AC1153.
• Parties: Mrs. F. E. MURPHY, Plaintiff, v. Tillie C. SMITH and Thomas W. Smith, Defendants. Billy MURPHY, by his Guardian ad Litem, Mrs. F. E. Murphy, Plaintiff, v. Tillie C. SMITH and Thomas W. Smith, Defendants. David MURPHY, by his Guardian ad Litem, Mrs. F. E. Murphy, Plaintiff, v. Tillie C. SMITH and Thomas W. Smith, Defendants. Linda MURPHY, by her Guardian ad Litem, Mrs. F. E. Murphy, Plaintiff, v. Tillie C. SMITH and Thomas W. Smith, Defendants. Roy E. HICE, Plaintiff, v. Tillie C. SMITH and Thomas W. Smith, Defendants. Frison E. MURPHY, Plaintiff, and United States of America, Intervener, v. Tillie C. SMITH and Thomas W. Smith, Defendants.

243 F. Supp. 1006

Mrs. F. E. MURPHY, Plaintiff, v. Tillie C. SMITH and Thomas W. Smith, Defendants.

Billy MURPHY, by his Guardian ad Litem, Mrs. F. E. Murphy, Plaintiff, v. Tillie C. SMITH and Thomas W. Smith, Defendants.

David MURPHY, by his Guardian ad Litem, Mrs. F. E. Murphy, Plaintiff, v. Tillie C. SMITH and Thomas W. Smith, Defendants.

Linda MURPHY, by her Guardian ad Litem, Mrs. F. E. Murphy, Plaintiff, v. Tillie C. SMITH and Thomas W. Smith, Defendants.

Roy E. HICE, Plaintiff, v. Tillie C. SMITH and Thomas W. Smith, Defendants.

Frison E. MURPHY, Plaintiff, and United States of America, Intervener, v. Tillie C. SMITH and Thomas W. Smith, Defendants.

Civ. A. Nos. AC-1148-AC1153.

United States District Court E. D. South Carolina, Columbia Division.

July 23, 1965.

Isadore E. Lourie, Henry Hammer, Columbia, S. C., for plaintiffs.

Robinson, McFadden & Moore, with J. Means McFadden, Columbia, S. C., for defendants.

Wistar Stuckey, Asst. U. S. Atty., Columbia, S. C., for intervener, United States.

SIMONS, District Judge.

The within captioned tort actions consolidated for trial were brought by plaintiffs to recover damages allegedly sustained by them in a collision that occurred on or about March 16, 1963, on the Fort Jackson Military Reservation between a 1957 Chevrolet automobile owned and operated by plaintiff Frison E. Murphy, in which other plaintiffs were riding as guest passengers, and a 1962 Chevrolet convertible automobile owned by defendant Thomas W. Smith and being operated upon said occasion by his daughter, Tillie C. Smith, with his permission. Jurisdiction is invoked under Title 28, U.S.C.A. Section 1332 a 1, based upon diversity of citizenship of the parties and the amounts in controversy.

In the Frison E. Murphy case, Civil Action No. AC-1153, United States of America was permitted to intervene as a party-plaintiff, pursuant to Title 42 U.S.C. § 2651 and Rule 24 of the Federal Rules of Civil Procedure, by virtue of an assignment by said individual plaintiff to the intervener of his rights against the defendants for hospital, doctors' and other medical expenses provided by the United States Army as a result of the injuries received by him in said collision.

These cases were tried by the court without a jury during the week of March 10, 1965, in Columbia, South Carolina. Thereafter, counsel for parties submitted able briefs and written arguments supporting their positions and contentions. The issues raised by the evidence to be determined by the court are as follows: 1 Was defendant Tillie C. Smith, driver of the 1962 Chevrolet automobile, guilty of actionable negligence which proximately caused or contributed to the collision in question; if so, was such negligence imputed and chargeable to defendant Thomas W. Smith, her father and owner of the automobile, under the family purpose doctrine? 2 Was plaintiff Frison E. Murphy, the owner and operator of the 1957 Chevrolet automobile upon said occasion, guilty of contributory negligence, which contributed as a proximate cause to said collision so as to bar his recovery in his action; and if so, was the same imputed to the other plaintiffs, the passengers in his said automobile? 3 What actual damages, if any, are plaintiffs entitled to recover? 4 Was defendant Tillie C. Smith guilty of recklessness, wilfulness and wantonness, so as to entitle plaintiffs to recover punitive damages; and if so, in what amounts?

In accordance with Rule 52 a of the Federal Rules of Civil Procedure I find the facts specially and state my conclusions of law thereon in said cases as follows:

FINDINGS OF FACT

On March 16, 1963, at approximately 1:00 p. m., plaintiff Frison E. Murphy was operating his 1957 Chevrolet automobile in an easterly direction along Semmes Road, approaching its intersection at right angles with Lee Road, on the Fort Jackson Military Reservation. The other five plaintiffs were riding as guest passengers in said automobile; Mrs. Murphy and Linda Murphy were occupying the front seat with plaintiff Frison E. Murphy; and David Murphy, Billy Murphy, and Roy E. Hice were riding in the rear seat.

On said occasion defendant Tillie C. Smith was operating the 1962 Chevrolet automobile owned by her father, the defendant Thomas W. Smith, with his express consent and as his agent under the family purpose doctrine, in a southerly direction along Lee Road approaching its intersection with said Semmes Road. Riding as passengers in the Smith automobile were Miss Mary Margaret Benbow, Sandra Smith Fowler, sister of defendant Tillie C. Smith, and Carl Joe Fowler, Jr., now the husband of Sandra Smith Fowler.

It is admitted that defendant Tillie C. Smith was driving the automobile of her father and co-defendant, with his permission and consent; and under the family purpose doctrine the negligence, recklessness, wilfulness and wantonness of the automobile on said occasion, if any, of said Tillie C. Smith was imputed to the defendant Thomas W. Smith.

Both Semmes and Lee Roads are approximately 22 feet in width, and vehicles traveling in the directions that the parties herein were proceeding just prior to the accident are visable to the drivers of said vehicles proceeding along the intersecting roads for approximately 500 feet from and continuing on to the intersection. The posted speed limit for Lee Road in this area is 35 m. p. h., and that of Semmes Road is 30 m. p. h. At the time of subject collision a stop sign was located on the western side of Lee Road north of Semmes Road approximately 49 feet from the intersection, and was visible for approximately 500 feet from the intersection to motorists traveling in a southerly direction along Lee Road approaching said intersection, which required all vehicles traveling in such southerly direction along said Lee Road the direction in which defendant Tillie C. Smith was driving said automobile to stop before entering and crossing said intersection with Semmes Road.

As both vehicles approached the intersection, they were being driven at a reasonable and lawful rate of speed, the Murphy automobile traveling at about 25 m. p. h. and the Smith automobile being driven approximately 30 m. p. h. Having been stationed at Fort Jackson for some time, plaintiff Frison E. Murphy was quite familiar with the general area, the roads and the intersection. While approaching the intersection he saw the Smith automobile traveling along Lee Road to his left. Knowing that the stop sign required traffic moving in a southerly direction along Lee Road to stop he was justified in assuming that the Smith automobile would stop in obedience thereto. Both vehicles approached and reached the intersection at approximately the same time, while traveling at about the same speed. The Murphy car apparently entered the intersection a moment prior to the Smith automobile; and upon suddenly realizing that the Smith car had passed the stop sign without slowing and was not stopping in obedience thereto, Murphy applied his brakes and skidded his tires for a distance of 11 feet before striking the right side of the Smith automobile with the front end of his automobile.

As defendant Tillie C. Smith approached said intersection she did not see the Murphy automobile approaching to her right along Semmes Road; she also failed to see the stop sign commanding her to stop at said intersection, although the automobile and the stop sign were cleary within her view for a distance of several hundred feet had she been keeping a proper lookout. Although she was driving at a reasonable and lawful rate of speed, she did not maintain the proper lookout required by due care, failed to see and heed the stop sign, and refused to yield the right-of-way to the Murphy automobile, as required by the common law rules of the road and the statutory laws of the State of South Carolina. Her delicts violated Sections 46-421¹ and 46-423² of the 1962 South Carolina Code of Laws, and were therefore acts of negligence per se. The foregoing negligence of the defendant, Tillie C. Smith, for which the defendant, Thomas W. Smith is also legally responsible, constituted the proximate cause of the collision, resulting in the damages and injuries suffered by plaintiffs. Under my view of the evidence, Miss Smith was not guilty of gross negligence, recklessness, wilfulness or wantonness under the facts and circumstances here, so as to warrant or justify an award of punitive damages. There was no excessive speed on her part, she was completely unfamiliar with the area and the intersection; thus I do not find sufficient exaggerated circumstances to support a determination that she was reckless, wilful or wanton in the operation of the automobile on that occasion.

Counsel for defendants strongly urges that plaintiff Frison E. Murphy was guilty of contributory negligence, which proximately contributed to and concurred in bringing about the collision; that he was thoroughly familiar with the intersection, saw the Smith car fail to slow down or stop at the stop sign 49 feet back from the intersection as it approached from the north; and that he failed to use due care for his own safety and to prevent injury to others by not slowing, stopping or turning his automobile after he realized the Smith automobile was not going to stop in obedience to the stop sign on Lee Road, citing numerous cases to support his contentions.³

I am unable to agree that plaintiff Frison E. Murphy failed to use reasonable care or was guilty of contributory negligence under the facts as I see them. Although he was familiar with the intersection and saw the Smith automobile approaching at a reasonable rate of speed, he was justified in assuming that it would stop at the stop sign, as required by South Carolina law. Both automobiles approached the intersection at about the same time and speed, and after plaintiff Murphy first realized that the Smith car was not going to stop, he then did not have ample time to stop or turn...