Peak v. Fripp

• Decision Date: 01 November 1940
• Docket Number: 15152.
• Parties: PEAK v. FRIPP.
• Court: South Carolina Supreme Court

11 S.E.2d 383

195 S.C. 324

PEAK v. FRIPP.

No. 15152.

Supreme Court of South Carolina

November 1, 1940

Douglas & Douglas, of Winnsboro, for appellant.

Benet Shand & McGowan, of Columbia, and McDonald, Macaulay & McDonald, of Winnsboro, for respondent.

BAKER Justice.

On the night of October 7, 1938, appellant's intestate was riding as a guest in the automobile of respondent, driven by respondent's son, and while so riding received injuries from which he died on October 13, 1938.

An action was brought by appellant in his representative capacity under the "guest statute", Section 5908 of the Code of 1932, for the wrongful death of his intestate.

On a trial of the case, and at the conclusion of plaintiff-appellant's testimony, the presiding Judge granted respondent's motion for a nonsuit on the ground "4. That plaintiff by the evidence has failed to establish his right to recover under the statute (Section 5908, S.C. Code 1932) controlling in an action of this kind in that the evidence does not show that the death of plaintiff's intestate was caused by the intentional misconduct or the heedless or reckless disregard of the rights of others on the part of the operator of the automobile in which plaintiff's intestate was riding at the time of accident."

We are not concerned with the other grounds upon which the motion was bottomed. Therefore, the sole and concrete question before the Court is:

Did the evidence on behalf of appellant in the absence of any evidence on behalf of respondent, under the construction this Court has given the statute, require the submission of the case to the jury?

The pertinent portion of said section of the Code (§ 5908) is as follows: "No person transported by the owner or operator of a motor vehicle as his guest without payment for such transportation shall have a cause of action for damages against such automobile, 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."

Quoting from Cummings v. Tweed, 10 S.E.2d 322, 325 (not yet reported in the S.C. Reports): "This section was construed in the case of Fulghum v. Bleakley, 177 S.C. 286, 181 S.E. 30, 32, and it was there held that the purpose of the statute was to limit liability to a guest to a case where his injury was either due to an intentional act on the part of the owner of the car, or to reckless misconduct on his part, and hence that the statute should be construed as if it read 'heedless and his reckless disregard of the rights of others', instead of 'heedlessness or his reckless disregard of the rights of others'. In other words, the word or in that portion of the statute should be construed as and, for the reason that the word 'heedlessness' was equivalent to negligence, and the obvious purpose of the statute was to impose liability only where there was something more than mere negligence. The Court says: 'Heedless in this connection means careless; it does not add to the significance or the characterization or the force of the act or conduct done in reckless disregard of the rights of others by the owner or operator. Act or conduct in reckless disregard of the rights of others is improper or wrongful conduct, and constitutes wanton misconduct, evincing a reckless indifference to consequences to the life, or limb, or health, or reputation or property rights of another."' As in the cases above referred to, there is no claim of intentional misconduct, and we need only inquire whether there was any testimony from which a reasonable inference could be drawn that the appellant's intestate suffered the injuries producing his death as a result of the heedless and reckless disregard of his rights by the driver of respondent's automobile.

In undertaking to prove his case, the appellant, with the exception of one witness who was not familiar with operating an automobile, relied upon circumstantial evidence, and as to such evidence, the trial Court, in granting the nonsuit applied the law applicable to...