Ray v. Simon

• Decision Date: 18 February 1965
• Docket Number: No. 18307,18307
• Citation: 245 S.C. 346,140 S.E.2d 575
• Court: South Carolina Supreme Court
• Parties: Floy RAY, Respondent-Appellant, v. John SIMON and George Ray, of whom John Simon is Appellant, and George Ray is Respondent.

Page 575

140 S.E.2d 575

245 S.C. 346

Floy RAY, Respondent-Appellant, v. John SIMON and George Ray, of whom John Simon is Appellant, and George Ray is Respondent.

No. 18307.

Supreme Court of South Carolina.

Feb. 18, 1965.

McCaskill & Thompson, Conway, for appellant.

Jennings & Jennings, Bishopville, for respondent-appellant.

Weinberg & Weinberg, Sumter, Lewis C. Trice, Columbia, for respondent.

MOSS, Justice:

Floy Ray, hereinafter referred to as the plaintiff, instituted this action to recover damages for personal injuries alleged to have been sustained by reason of the joint and concurrent carelessness, negligence, willfulness, wantonness and recklessness of John, Simon, the appellant herein, and George Ray, the respondent herein.

The plaintiff, in her complaint, alleges that on December 2, 1962, that she was riding as a passenger in an automobile owned by the respondent, which was his family car, driven by Carol Ann Ray, his daughter, and his agent and servant, when the said automobile was involved in a collision with one driven by the appellant. It was alleged that the said Carol Ann Ray drove the said automobile into the rear of the automobile of the appellant and that she failed to keep same under proper control, failed to keep a proper lookout, failed to apply the brakes and failed to stop before striking the automobile of the appellant. The complaint charged also that the appellant stopped his automobile on a heavy traveled highway suddenly and without giving any signal or other warning of his intention so to do, that he did not have proper brake lights, and that he failed to observe the automobile of the respondent approaching him from the rear.

The answer of the appellant contained a general denial and, by way of further defense, alleged that the injury to the plaintiff was proximately caused by the negligence and recklessness of the driver of the automobile in which she was riding as a passenger, in that she did not keep a proper lookout, followed too closely, failed to keep the automobile under proper control, drove into the stopped automobile of the appellant while he was signalling his intention to make a left turn, and failed to reduce the speed of her automobile upon approaching an intersection. The appellant further alleged that the plaintiff was guilty of contributory negligence and recklessness.

The answer of the respondent contained a general denial and, by way of further defense, alleged that he and the plaintiff were the parents of Carol Ann Ray, a minor unemancipated child, and she was permitted to drive the automobile owned by him as a member of the family. He further alleged that the plaintiff, as the mother of Carol Ann Ray, had the right to control her in the operation of his said automobile and that she was negligent and reckless in permitting her to operate the automobile in an improper manner and in failing to exercise her right to control her. He further set up a plea of contributory negligence, willfulness, recklessness and wantonness as a bar to any recovery against him.

This case came on for trial at the 1963 September term of the Court of Common Pleas for Lee County, before the Honorable C. Bruce Littlejohn, Presiding Judge, and a jury, and resulted in a verdict for actual damages in the amount of $20,000.00 in favor of the plaintiff against the appellant and the respondent.

At appropriate stages of the trial the appellant made motions for a nonsuit and directed verdict in his favor and, after the verdict, for judgment non obstante veredicto and, in the alternative for a new trial, upon the grounds (1) that there was no evidence of actionable negligence on the part of the appellant; and (2) that the only reasonable inference from the testimony was that the plaintiff was guilty of contributory negligence and recklessness as a matter of law. The appellant moved for a new trial on the ground that the jury's verdict was so excessive as to indicate bias and prejudice, and in the alternative, for a new trial nisi. The Trial Judge refused all of the aforesaid motions.

The respondent herein made a motion for a nonsuit and a directed verdict in his favor and after the verdict for judgment non obstante veredicto. The latter motion was granted by the Trial Judge upon the ground that the plaintiff, being the wife of the respondent, could not maintain an action against him for a tort committed by their minor unemancipated child who was driving the family automobile at the time of the injury to the plaintiff. The plaintiff has appealed from this ruling.

The question of whether or not there was error in refusing the motions of the appellant for a nonsuit, directed verdict, judgment non obstante veredicto and, alternatively, for a new trial, upon the two grounds hereinbefore stated, requires us to consider the testimony and the reasonable inferences to be drawn therefrom in a light favorable to the plaintiff. 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. Ordinarily, contributory negligence and recklessness is an issue for the jury and rarely becomes a question of law for the Court. If the only reasonable inference to be drawn from all the testimony is that the negligence and recklessness of the plaintiff is a direct and proximate cause of her injury and damage, or such contributed as a direct and proximate cause, then it would be the duty of the Trial Judge to order a nonsuit or direct a verdict. However, if the inferences properly deducible from controverted evidence are doubtful or tend to show both parties guilty of negligence or recklessness and there may be a fair difference of opinion as to whose act proximately caused the injury complained of, then the question must be submitted to the jury. Griffin v. Pitt County Trans. Co., 242 S.C. 424, 131 S.E.2d 253.

The collision here involved occurred about 12:30 P.M. on December 2, 1962, at the intersection of U. S. Highway No. 15 with Baskin Avenue, just south of Bishopville, South Carolina, when the automobile owned by the respondent and driven by Carol Ann Ray, the minor daughter of the plaintiff and the respondent, collided with the rear of an automobile owned and operated by the appellant.

It is admitted that the automobile in which plaintiff was riding at the time of the collision was owned by her husband, the respondent herein, and was being operated by their minor daughter, Carol Ann Ray, who had permission to use the automobile. It is uncontradicted that on the day in question Carol Ann Ray was using the family car for the purpose of taking the plaintiff and others to church services. The collision with which we are here concerned, occurred as the parties were returning home from church.

The plaintiff testified that Carol Ann Ray had absolute and complete control of the operation of the automobile in which she was riding. She testified that they came up behind an automobile being operated by the appellant and that he suddenly stopped his car directly in front of the car in which she was riding without giving any signal of his intention so to do. The automobile in which plaintiff was riding collided with the rear of the automobile of the appellant. The plaintiff's testimony is not definite as to when she first saw appellant's automobile in the road in front of them but she did testify that because of the sudden stopping of appellant's automobile she did not have time to give her daughter any warning of such.

Carol Ann Ray testified that as she was driving her father's automobile over and along U. S. Highway No. 15 and was following the automobile of the appellant and 'he was going slow, and didn't seem like he was stopping, and before I knew it I was up on top of him.' She testified that he suddenly stopped without giving any signal of his intention to turn left or to stop. She further testified that she was in complete control of the car and would not have paid any attention to any instructions from her mother unless it was just to slow down or something like that. She estimated that she had followed the appellant's car for a distance of about 30 to 40 feet, having seen him when she was just below the store of J. W. Davis, which said store was located on the left-hand side of the road in the direction in which she was driving and about 30 to 40 yards from the intersection where the collision took place. She admitted that she saw the appellant's car moving very slowly but did not know that he was going to stop. She says that she thought by the time she got to him she would have a chance to pass him 'but he stopped and I didn't see him stop', and because of such sudden stopping she had no opportunity to avoid colliding with his car. She further testified that she could not pass him on the right because of a parked car and could not pass on the left because of an oncoming car.

The appellant testified in his own behalf. He said he stopped at the Davis store and picked up a package and pulled out from the store and drove across the highway and into the right-hand lane thereof. He testified that he drove about 200 feet from the Davis store to the point where he stopped his automobile on the highway, it being his intention to make a left turn from U. S. Highway 15 into Baskin Avenue. He testified that he could not make the left turn because of an oncoming car travelling in the opposite direction. He said that he did not give any hand signal but that he had his blinker lights on, indicating his intention to turn left. The appellant admitted that he 'put the blinker on just as I stopped.'

R. D. Steele, a highway patrolman, testified that he investigated the collision between the two automobiles here involved. He examined the lights on the appellant's car but he could not tell whether the blinker lights...