Shearer v. DeShon

• Decision Date: 09 July 1962
• Docket Number: No. 17941,17941
• Parties: Jimmie H. SHEARER, as Administrator of the Estate of Glenda Shearer, Plaintiff-Respondent, v. Raymond DeSHON and Charlotte Faye DeShon, Defendants-Appellants, and William M. Lyle, Defendant-Respondent.
• Court: South Carolina Supreme Court

Page 514

126 S.E.2d 514

240 S.C. 472

Jimmie H. SHEARER, as Administrator of the Estate of Glenda

Shearer, Plaintiff-Respondent, v. Raymond DeSHON and Charlotte Faye DeShon, Defendants-Appellants, and William M. Lyle, Defendant-Respondent.

No. 17941.

Supreme Court of South Carolina.

July 9, 1962.

Henderson, Salley & Cushman, Aiken, for appellants.

Toole & Toole, Henry Busbee, Aiken, for respondent.

MOSS, Justice.

This is an action to recover damages for the alleged wrongful death of Glenda Shearer and brought by the administrator of her estae for the benefit of her surviving parents. Section 10-1951 et seq., 1952 Code of Laws of South Carolina.

It is alleged in the complaint that Glenda Shearer, a minor sixteen years of age, died on October 20, 1960, and that her death was due to and proximately caused by the joint, concurrent, combined and several acts of negligence, carelessness, recklessness, heedlessness and willfulness of Charlotte Faye DeShon, Raymond DeShon, the appellants herein, and William M. Lyle, a respondent herein. It is alleged that Glenda Shearer was riding as a guest in an automobile owned by Raymond DeShon and operated by his minor daughter, Charlotte Faye DeShon. It is further alleged that the said Charlotte Faye DeShon was a member of the household of her father and that he had provided the automobile in question for the use and convenience of his family, including his said daughter. The complaint also alleges that the death of Glenda Shearer was caused and occasioned by the collision of the automobile in which she was riding as a guest with an automobile owned and operated by William M. Lyle.

It is alleged that on October 19, 1960, at approximately 8:40 P. M., it being a dark, cloudy and rainy night, Glenda Shearer was riding as a guest passenger in the front seat of a 1957 Volkswagon automobile owned by Raymond DeShon and operated by his minor daughter, in a northerly direction along S. C. Highway No. 421, at or near the Town of Gloverville, and that the said automolbile was being driven in excess of a speed which was reasonable and proper under the circumstances then and there existing, was being driven without maintaining a proper lookout for other vehicles, and without having the said automobile under proper control. It was also alleged that William M. Lyle was driving his automobile upon the occasion in question at a speed in excess of that which was reasonable and proper under the circumstances then and there existing, in driving his automobile without maintaining a proper lookout for other vehicles upon said highway, and in driving his said automobile without having the same under proper control, and in improperly making a left turn and failing to yield the right of way when under a duty so to do.

The respondent Lyle filed a separate answer and denied any wrongful conduct on his part that brought about the injury and death of the said Glenda Shearer. He further alleged that if respondent's intestate lost her life as a result of carelessness, negligence, heedlessness, recklessness, willfulness and wantonness of any person, the same was due to and solely occasioned by the automobile being operated by Charlotte Faye DeShon. It is further alleged that the death of respondent's intestate was due to an unavoidable accident.

The appellants, by their answer, denied any wrongful conduct on their part that brought about the injury and death of the said Glenda Shearer and affirmatively allege that her death resulted solely and proximately from the negligence, recklessness, willfulness and wantonness of William M. Lyle. The appellants, by way of further defense, assert that the said Glenda Shearer was guilty of contributory negligence, recklessness, willfulness and wantonness, in consciously remaining in the automobile driven by Charlotte Faye DeShon, without objection, and without making any effort to remonstrate with the driver thereof or to remove herself therefrom if, as is alleged Charlotte Faye DeShon was driving said automobile in an improper manner. The appellants separately filed a cross action pursuant to Section 10-707 of [240 S.C. 477] the 1952 Code of Laws, against William M. Lyle, alleging that each sustained either personal injury or property damage as a result of his negligence, recklessness, willfulness and wantonness. Lyle filed a reply to the cross actions.

The case came on for trial before the Honorable J. B. Ness, and a jury, at the June 1961 term of the Court of Common Pleas for Aiken County, and resulted in a verdict in favor of the respondent against the appellants and William M. Lyle in the sum of $11,000.00 actual damages, apportioned in the amount of $10,000.00 against the appellants, and $1,000.00 against Lyle. There was a verdict in favor of Lyle on the cross actions of the appellants.

The appellants, at appropriate stages of the trial, moved for a nonsuit, directed verdict, judgment non obstante veredicto, and alternatively for a new trial, on the ground that neither respondent's evidence nor the entire evidence was sufficient to support the reasonable inference that the death of Glenda Shearer was caused by the heedlessness and recklessness of the appellants. All of these motions were refused by the trial Judge. There is no appeal on the part of William M. Lyle.

In considering whether the court below erred in refusing the several motions made by the appellants upon the ground that there was no evidence of actionable heedlessness or recklessness on the part of the appellants, we must view the evidence and the inferences fairly deducible therefrom in a light favorable to the respondent. If more than one reasonable inference can be drawn from the evidence, the case must be submitted to the jury. Green v. Bolen, 237 S.C. 1, 115 S.E.2d 667, and Spencer v. Kirby, 234 S.C. 59, 106 S.E.2d 883.

It is the contention of the respondent that his intestate was riding as a passenger in an automobile owned by Raymond DeShon and operated by Charlotte Faye DeShon. Since the respondent's intestate was a guest passenger in said automobile, the action is governed by Section 46-801 of the 1952 Code of Laws of South Carolina, which provides that:

'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.'

The foregoing section, as construed by this Court, restricts liability to a guest to cases where injury has resulted from either intentional or reckless misconduct of the owner or operator of the motor vehicle. Fulghum v. Bleakley, 177 S.C. 286, 181 S.E. 30; Brown v. Hill, 228 S.C. 34, 88 S.E.2d 838; Saxon v. Saxon, 231 S.C. 378, 98 S.E.2d 803; Benton v. Pellum, 232 S.C. 26, 100 S.E.2d 534; and Jackson v. Jackson, 234 S.C. 291, 108 S.E.2d 86. This Court has also held, under the guest statute, that the only duty that the operator of an automobile owes to a guest passenger is not to injure her willfully or by conduct in reckless disregard of her rights. Johnson v. Griffin, 228 S.C. 526, 90 S.E.2d 913.

It appears from the evidence that on October 19, 1960, a number of students had assembled at Langley-Bath-Clearwater High School for the purpose of practicing a class play. When this practice was over, Charlotte Faye DeShon, Glenda Shearer and Sandra Heath left the high school for the purpose of going to a 'bon fire'. Charlotte Faye DeShon was driving her father's automobile. Glenda Shearer was in the front seat and Sandra Heath was in the back seat. The night was dark and foggy and it was raining. Leaving the high school premises, the car turned right on Highway No. 421 and proceeded towards Gloverville. The scene of the collision was on a curve on said highway near Freeman's Filling Station. The posted speed limit at that point was thirty-five miles per hour. Sandra Heath testified that just prior to the collision of the car in which she was riding, with the one driven by William M. Lyle, that Glenda Shearer was sitting in the front seat, facing the back seat, talking to her. She testified that Charlotte Faye DeShon asked her if she wanted a cigarette and that 'Faye took a cigarette and put her elbows on the steering wheel, she turned around to throw me the matches, as she went to turn back around we hit Mr. Lyle.' She further testified that Charlotte Faye DeShon finished lighting her cigarette before turning to throw the matches to her. We quote the following testimony as given by Sandraw Heath on cross-examination:

'Q. Where were her hands when she went to light the cigarette and had her elbows on the steering wheel?

'A. She used her hands to light the cigarette.

'Q. What did she use?

'A. A pack of matches.

'Q. She did light the cigarette before the accident happened?

'A. When she did she threw me the matches and turned her head, when she turned back around we hit.

'Q. Right or left hand?

'A. Right.

'Q. She finished the cigarette lighting?

'A. Yes, sir.'

This witness testified that the automobile of the appellants was being driven at a speed of about thirty-five or forty miles per hour. She also testified that as Charlotte Faye DeShon 'went to turn back around I saw the Lyle's car and we hit him.' She estimated that the Lyle car was approximately twenty feet from her when she saw it.

Hugo Addie, who operates Freeman's Filling Station, testified that he was standing in the door of the station and he saw the Lyle car proceeding down the road in an opposite direction from that which the DeShon car was approaching; that Lyle was going about five or ten miles per hour, and was making a left turn; that he did not see the actual collision, but that the DeShon automobile was in its proper lane and...