Player v. Thompson

• Decision Date: 07 December 1972
• Docket Number: No. 19531,19531
• Citation: 259 S.C. 600,193 S.E.2d 531
• Court: South Carolina Supreme Court
• Parties: Theresa Diane Carmen PLAYER, a minor over the age of fourteen (14) years, by her Guardian ad Litem, John Carmen, Appellant, v. Geraldine THOMPSON et al., Respondents.

Page 531

193 S.E.2d 531

259 S.C. 600

Theresa Diane Carmen PLAYER, a minor over the age of fourteen (14) years, by her Guardian ad Litem John Carmen, Appellant, v. Geraldine THOMPSON et al., Respondents.

No. 19531.

Supreme Court of South Carolina.

Dec. 7, 1972.

Kermit S. King and J. Frank Hartman, II, Columbia, for appellant.

Heyward E. McDonald and Joseph L. Nettles, Jr., Columbia, for respondents.

PER CURIAM:

The lower court granted the defendants' motion for a nonsuit. Plaintiff has appealed. We must decide if more than one reasonable inference can be deduced from the evidence and if the trial judge erred in taking the case from the jury. We are also called upon to determine if excluding an out-of-court admission and other evidence was proper.

Diane Player was injured in a one-car automobile collision with a mailbox and fence while a guest passenger in an automobile driven by defendant Nancy Carder and owned by defendant Bobby Thompson. The guardian ad litem in behalf of the minor Diane Player sues the driver, Nancy Carder, for damages, alleging heedlessness and recklessness in the operation of the automobile. The plaintiff further alleges that both defendant Bobby Thompson and his wife, defendant Geraldine Thompson, are liable under the family purpose doctrine and because of negligent entrustment of the automobile to Carder.

At the conclusion of the plaintiff Player's evidence, the judge granted a nonsuit to all defendants on the ground that the driver Carder was not reckless and heedless and on the ground that her conduct was not the proximate cause of the injuries sustained.

When a party makes a motion for a nonsuit, it is encumbent upon the trial judge to view the evidence and all inferences arising therefrom in the light most favorable to the opposing side. We are required to do the same and the following is a summary of the evidence, without regard to weight or truth, viewed in the light most favorable to the plaintiff Player.

Defendant Bobby Thompson furnished an automobile for family purposes to his then-estranged wife, Geraldine Thompson. At the time of the collision, Nancy Carder was staying at the home of Geraldine Thompson. Mrs. Thompson requested that Nancy Carder go to the store for her and entrusted her with the automobile. At the time, Mrs. Thompson knew that she had no driver's license. Prior to going to the store, Carder asked plaintiff Diane Player (then Diane Carmen) and James Player, whom Diane has since married, to accompany her, which they did. There is evidence that it was a rainy night; that the tires on the car were worn slick; that Nancy Carder was an unlicensed driver; that the driver was warned to slow down; that the driver was warned to watch for a dog on the side of the street; that the dog ran in front of the car; that the car was traveling 25 miles per hour; and that she slammed on the brakes, causing the car to slide to the right and run into a mailbox and fence, stopping some nine feet off the road.

The foregoing summary of the evidence concerning the circumstances of the wreck is by no means complete, but we think it is sufficient to show that it was error for the trial judge to hold as a matter of law that no evidence of recklessness had been presented.

'Ordinarily, it is the function of the jury to pass upon the issues of negligence, wilfullness and wantonness and contributory negligence, wilfullness and wantonness.' Gillespie v. Ford et al., 225 S.C. 104, 81 S.E.2d 44 (1954).

The same is true of recklessness and heedlessness. And, it is

"'(W)hen only one reasonable inference not just one inference, but one reasonable inference, can be deduced from the evidence, it becomes a question of law for the court, and not a question of fact for the jury."' In re Crawford, 205 S.C. 72, 30 S.E.2d 841 (1944).

We are of the opinion that the evidence recited, when viewed in the light most favorable to the plaintiff, created a jury issue as to recklessness on the part of the driver.

The trial judge also concluded that the conduct of the driver Carder in no way proximately caused the collision.

Proximate cause is normally a question of fact for determination by the jury, and may be proved by direct or circumstantial evidence. In order to hold a defendant liable, it is not necessary to prove that his or her recklessness was the sole proximate cause of the injury. It is sufficient if it be a concurring or a contributing proximate cause. From all of the evidence in the case, we do not think that it can be said as a matter of law that the fact that the dog ran out in front of the automobile was the sole proximate cause of the injuries plaintiff is alleged to have sustained.

"(C)oncurring causes operate contemporaneously to produce the injury, So that it would not have happened in the absence of either. . . . It is enough (to impose liability) to show that it is a proximate concurring cause; That is, one that was so efficient in causation that, but for it, the injury would not have occurred . . .' (interpolation and italics ours)' Horton v. Greyhound Corp., 241 S.C 430, 128 S.E.2d 776 (1962).

In this case, under all of the circumstances, it would not be unreasonable to infer that because of the slick tires, the wet road, the ignored warnings and her speed--whatever it was, she was unable to control the vehicle, which skidded into the mailbox and fence; that the injury to plaintiff was thus proximately caused by the joint and concurring action of Nancy Carder and the dog. We conclude that the evidence on issues of proximate cause and heedlessness and recklessness was susceptible of more than one reasonable inference and, accordingly, the case should have been submitted to the jury.

Inasmuch as the case must be tried again, we will rule upon evidentiary questions raised by plaintiff's exceptions. The complaint alleged:

(1) That Nancy Carder was heedless and reckless in driving the motor vehicle which she 'knew, or should have known, had worn and defective tires, upon a wet and slippery street;' (emphasis added)

(2) That Geraldine Thompson was negligent, careless, reckless, wilful and wanton in providing an automobile to a driver when she 'knew or should have known, that the tires on said motor vehicle were worn, slippery, and in a defective condition.' (emphasis added)

Section 46--611, as amended, of the Code of Laws of South Carolina, requires that tires on motor vehicles 'shall be in a safe operating condition.' Section 46--644.1 makes it an offense to operate a vehicle not having a current inspection sticker issued by the State Highway Department. The stickers are issued by authorized inspection stations throughout the State. Stickers are not issued for cars with defective or slick tires.

Subsequent to the collision and prior to suit, Carder gave a statement (to a representative of plaintiff's counsel) which was sworn to and recorded, concerning Geraldine Thompson and the car she was driving. In essence, she stated that she (Carder) went with Geraldine...