Powell v. Simons

• Court: South Carolina Supreme Court
• Writing for the Court: MOSS; This case came on for trial before the Honorable Frank Eppes
• Citation: Powell v. Simons, 188 S.E.2d 386, 258 S.C. 242 (S.C. 1972)
• Decision Date: 20 April 1972
• Docket Number: No. 19402,19402
• Parties: Darlene L. POWELL, Administratrix C.T.A. of the Estate of Johnnie M. Powell, Respondent, v. Joseph W. SIMONS, Appellant.

Page 386

188 S.E.2d 386

258 S.C. 242

Darlene L. POWELL, Administratrix C.T.A. of the Estate of Johnnie M. Powell, Respondent, v. Joseph W. SIMONS, Appellant.

No. 19402.

Supreme Court of South Carolina.

April 20, 1972.

Joseph R. Young, of Young, Clement & Rivers, Charleston, for appellant.

George B. Bishop, of Dennis, Dennis & Bishop, Moncks Corner, and Wright Dixon, Jr., of Bailey, Dixon & Wooten, Raleigh, N.C., and Hammer & Bernstein, Columbia, for respondent.

MOSS, Chief Justice:

This action was instituted by Darlene L. Powell, as administratrix Cum testamento annexo of the estate of Johnnie M. Powell, deceased, the respondent herein, against Joseph W. Simons, the appellant herein, to recover damages for the wrongful death of the said Johnnie M. Powell. This action was brought pursuant to Section 10--1951, et seq., of the Code, for the benefit of the widow and the surviving children.

The respondent's testate was riding as a guest passenger in an automobile owned and operated by the appellant. It is alleged in the complaint that on November 9, 1967, the appellant was operating his automobile in an easterly direction over and along highway 31 and that at the junction of said highway with highway 45 he collided with an automobile operated by one Dewey B. Stewart, resulting in severe injuries to Johnnie M. Powell, from which he later died. It is also alleged that the respondent's testate's death was due to and proximately caused by several acts of carelessness, negligence, willfulness, wantonness and recklessness of the appellant, Inter alia, (a) driving his automobile at a high, dangerous and excessive rate of speed; (b) in failing to keep a proper lookout for other vehicles using said highway; (c) in operating his automobile with defective and insufficient brakes and in failing to apply same; (d) operating his said automobile over a public highway and failing to stop at an intersection in violation of a stop sign; and (e) failing to decrease the speed of his vehicle when he approached the intersection of two highways and in failing to yield the right of way to a motor vehicle using the intersecting highway.

The appellant, by answer, denied that he operated his automobile in a reckless, willful and wanton manner and plead the guest statute as a further defense.

This case came on for trial before the Honorable Frank Eppes, presiding judge, and a jury, at the 1970 September Term of the Court of Common Pleas for Berkeley County and resulted in a verdict in favor of the respondent for actual damages.

The appellant, at appropriate stages of the trial, moved for a nonsuit and a directed verdict, and after the verdict, for judgment Non obstante veredicto, upon the ground that there was no evidence of actionable recklessness and willfulness on his part. The trial judge refused the aforesaid motions and this appeal followed.

In considering whether the trial judge erred in refusing the several motions of the appellant, the evidence and the reasonable inferences to be drawn therefrom must be viewed in a light most favorable to the respondent. If more than one reasonable inference can be drawn from the evidence, the case must be submitted to the jury. However, if the evidence is susceptible of only one reasonable inference, the question is no longer one for the jury but one of law for the Court. Gause v. Livingston, 251 S.C. 8, 159 S.E.2d 604.

It being admitted that Johnnie M. Powell was riding as a guest passenger in the automobile of the appellant, the action is governed by Section 46--801 of the Code, which provides:

'no person transported by an 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 motor vehicle or its owner or operator for injury, death or loss in case of an accident unless such accident shall have been intentional on the part of such owner or operator or caused by his heedlessness or his reckless disregard of the rights of others.'

Under the foregoing statute, a guest cannot recover against the operator for simple negligence. The statute restricts liability to cases where the injury has resulted from either intentional or reckless misconduct of the operator of a motor vehicle. The only duty that the operator of a motor vehicle owes to a guest passenger is not to injure him willfully or by conduct in reckless disregard of his rights. Elrod v. All, 243 S.C. 425, 134 S.E.2d 410. The burden was upon the respondent to establish that her testate's death was the result of willful or reckless misconduct on the part of the appellant in the operation of his automobile. Ray v. Simon, 245 S.C. 346, 140 S.E.2d 575.

Our inquiry here is whether the respondent presented any evidence that shows the appellant guilty of either intentional or reckless misconduct in the operation of his automobile which proximately caused the death of Johnnie M. Powell. The test by which a tort is to be characterized as reckless, willful or wanton is whether it has been committed in such a manner and under such circumstances that a person of ordinary reason or prudence would have been conscious of it as an invasion of the rights of the deceased. Suber v. Smith, 243 S.C. 458, 134 S.E.2d 404.

The record shows the junction of South Carolina highways 31 and 45, in Berkeley County, was in the form of a Y with both highways running in the same roadbed east of the junction and branching out to the west. Highway 31, in its intersection with highway 45, runs almost straight into said highway and highway 45 at the intersection veers to the left in a southwesterly direction. The area forming the junction and intersection made a right triangle in shape; the base being formed by a cross-over for traffic on highway 31 to proceed west on highway 45, the altitude, 140 feet more or less, being a continuation of highway 31 beyond the cross-over and the hypotenuse being bounded by highway 45 as it turned to the southwest. Highway 45 was the dominant road and highway 31 was the servient road.

Normally, on highway 31 there is a 'Stop 'Ahead' sign at approximately 684 to 750 feet west of the junction, a 'Junction' sign with arrows showing the direction of travel on highway 45 was located approximately 360 feet west of the intersection and a 'Stop' sign approximately 33 feet west of the junction. There was a yellow line dividing the lanes of travel on highway 31 west of and going into the intersection. There were double yellow lines in the center of highway 45 at the intersection.

It is agreed that on Halloween night, prior to November 9, 1967, unidentified vandals took down the 'Stop' sign on highway 31 at its intersection with highway 45 and moved the 'Stop Ahead' sign from its location on highway 31 and placed the said sign in the hole where, normally, the 'Stop' sign would have been located. The 'Stop' sign was later found in the ditch alongside highway 31.

The record shows that Johnnie M. Powell and the appellant, both of whom were residents of Wake County, North Carolina, were in Berkeley County for two days for the purpose of fishing in the Santee-Cooper Lake. They had stayed at a fish camp located on highway 31, 1.1 miles west of the junction of the aforesaid highway with highway 45. These two men left the fish camp after dark on November 9, 1967, for the purpose of returning to their home, and headed east on highway 31. The appellant was driving the automobile and Powell was a guest passenger therein.

Sergeant Thompson, a member of the State Highway Patrol, was one of the investigating officers. He stated that he talked to the appellant at the scene of the collision and he said that 'he and Mr. Powell had been fishing up at I believe Wilson's Landing and that they were headed back to North Carolina and he said that he was coming east on Secondary 31 and he saw the stop ahead sign and when he saw the stop ahead sign he let off on the accelerator and the next thing he knew there was a wreck.'

D. R. Benson, another Highway Patrolman, testified that he went to the scene of the collision and made certain measurements. He said that from the stop ahead sign, which was 30 feet west of the intersection, to the beginning of the skid marks was 161 feet. He said there were 75 feet of skid marks laid down by the appellant's car. He testified that the usual distance between a stop ahead sign and a stop sign was 700 to 800 feet and that the purpose of a stop ahead sign is to warn motorists that they are approaching a stop sign. He also testified that the speed limit was 55 miles per hour on both roads.

The respondent called as a witness W. B. Bazzle, the resident maintenance engineer of the South Carolina Highway Department. He testified that the purpose of placing a stop ahead sign on a highway was to warn motorists of a dangerous...