Oswald v. Weiner
| Decision Date | 15 November 1950 |
| Docket Number | 16430. |
| Parties | OSWALD v. WEINER et al. |
| Court | South Carolina Supreme Court |
Edgar L. Morris, Emmet B. Gresham, Columbia, for appellants.
Norbert A Theodore, William Elliott, Jr., Columbia, for respondent.
This appeal relates to demurrer to the complaint by the defendant, David Weiner. The complaint alleged that he was the owner of an automobile which was operated for the purposes of his business by the other defendant who was demurrant's brother and agent. The latter invited plaintiff's intestate who was her daughter, to ride with him on a business trip. In the course of it he operated the automobile negligently wilfully, wantonly, recklessly and unlawfully, in specified particulars, whereby the automobile and a railway train were in collision, and the intestate received fatal injuries. It was further alleged that demurrant knew that the other defendant, his agent, was a reckless and heedless automobile driver, having been convicted many previous times of violations of traffic laws, had been involved in accidents and his driver's license once suspended, despite which knowledge demurrant allowed his brother to drive his automobile in furtherance of demurrant's business. The prayer was for $100,000, actual and punitive damages against both defendants.
The demurrer was upon several grounds, all of which were overruled, as was a motion to strike certain allegations of the complaint, from which both defendants appealed. However, only one of the grounds was discussed in the brief and it alone will be considered. It affects only David Weiner, who is in fact therefore the sole appellant. He has argued a single question, viz., Does the complaint state a cause of action against him? The contention is that the automobile guest statute serves to relieve a master or principal from the ordinary burden of liability under the rule of respondeat superior.
The statute is now Section 5908 of the Code of 1942, as follows:
'No person transported by the owner or operator of a motor vehicle or airship as his guest without payment for such transportation shall have a cause of action for damages against such automobile or airship, its owner or operator for injury death or loss, in case of accident unless such accident shall have been intentional on the part of said owner or operator or caused by his heedlessness or his reckless disregard of the rights of others.
'This section shall not relieve a public carrier, or any owner or operator of a motor vehicle while the same is being demonstrated to a prospective purchaser of responsibility for any injuries sustained by a passenger being transported by such public carrier or by such owner or operator.'
Appellant admits in argument the novelty of his position and that there is no decided case supporting it. We consider it entirely untenable. The obvious purpose of the enactment was to deny a guest a right of action for simple negligence and require for liability more than that. Reference to the original act, No. 659 of 1930, 36 Stat. 1164, and the decisions of this court construing it all point to the single object and there is no indication of legislative intent to alter the prior existing law of respondeat superior. Similar legislation is wellnigh universal. 5 Am.Jur. 632, 633, Automobiles, sec. 237. From the latter we quote: See, Fulghum v. Bleakley, 177 S.C. 286, 181 S.E. 30, and Cummings v. Tweed, 195 S.C. 173, 10 S.E.2d 322.
The following cases, also decided under our guest statute, involved unchallenged application of the principle of respondeat superior: Ralls v. Saleeby, 178 S.C. 431, 182 S.E 750; Spurlin v. Colprovia Products Co., 185 S.C. 449, 194 S.E. 332; and Peak v. Fripp, 195 S.C. 324, 11 S.E.2d...
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