Sams v. Sams, 18494
| Decision Date | 26 April 1966 |
| Docket Number | No. 18494,18494 |
| Citation | 148 S.E.2d 154,247 S.C. 467,15 A.L.R.3d 1423 |
| Court | South Carolina Supreme Court |
| Parties | , 15 A.L.R.3d 1423 Louise Foster SAMS, Respondent, v. Sumter B. SAMS, Appellant. |
Rufus M. Ward, of Ward, Hammett & Howell, Spartanburg, for appellant.
James J. Raman, Spartanburg, for respondent.
This is an appeal from an order of the circuit court striking certain allegations from the answer of the defendant-appellant on the ground that such were irrelevant and immaterial. The plaintiff-respondent seeks to recover damages for personal injuries. Her complaint alleges that she was traveling in her automobile, driven by defendant, who drove the same off the road, and that her injuries were proximately caused by the gross negligence, heedlessness, and reckless disregard of the defendant in failing to keep a proper lookout, driving at an excessive rate of speed, and failing to keep the automobile under control.
The defendant's answer alleged, inter alia, that plaintiff, at her request, was riding as a nonpaying guest in the defendant's automobile; and that the accident was not caused by any intentional act on the part of the defendant or by his heedless disregard of the right of others, following which the defendant referred to and pled verbatim the applicable portion of Section 46--801 of the Code, commonly known as the guest statute. The order of the circuit court struck the language which referred to and pled verbatim the statutory language, with leave to the defendant, however, to redraft said paragraph so as to plead the guest statute by name or by Code Section.
The third defense in defendant's answer plead contributory gross negligence, heedlessness, willfulness and wantonness on the part of the plaintiff, and in the course thereof referred to the plaintiff as 'a full grown person of good judgment and much experience in the operation of an automobile,' which quoted language was stricken.
A motion to strike language from a pleading, as irrelevant or immaterial, is generally within the discretion of the judge. Mikell v. McCreery-Pressley Co., 105 S.C. 25, 89 S.E. 467; J.M.S., Inc. v. Theo, 241 S.C. 394, 128 S.E.2d 697. With respect to the matters hereinabove mentioned, we think there is no merit in the appeal. The defendant will not be prejudiced in the presentation of his defenses. The trial court will, of course, take judicial notice of the guest statute, if applicable to the evidence adduced on the trial, and the defendant will not be prevented from offering and evidence as to the age or experience of the plaintiff, which may be relevant. The order of the circuit court struck an alleged specification of contributory negligence, etc., on the part of the plaintiff, reading as follows:
'* * * in riding and continuing to ride in said automobile without taking the necessary precaution to strap herself in with a seat belt which was furnished for her convenience,'.
The motion to strike such language, alleged as a defense, was in the nature of a demurrer, and the question before the judge was whether the language sought to be...
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Kopischke v. First Continental Corp.
...of the vehicle also failed to use the available seat belts, but his injuries were minimal." 149 N.W.2d at 640. See also Sams v. Sams (1966), 247 S.C. 467, 148 S.E.2d 154. Illustrative of the cases which state that upon one or both of these aspects, the defense must be submitted to the jury ......
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...(1989) (seat belt) (recognizes duty to wear seat belt) (statute passed after accident barring nonuse evidence); Sams v. Sams, 247 S.C. 467, 469-71, 148 S.E.2d 154, 155 (1966) (seat belt) (nonuse should be considered an issue of contributory negligence); Foley v. City of West Allis, 113 Wis.......
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