Smith v. Edwards

• Decision Date: 09 February 1938
• Docket Number: 14617.
• Citation: 195 S.E. 236,186 S.C. 186
• Parties: SMITH v. EDWARDS.
• Court: South Carolina Supreme Court

195 S.E. 236

186 S.C. 186

SMITH v. EDWARDS.

No. 14617.

Supreme Court of South Carolina

February 9, 1938

Appeal from Common Pleas Circuit Court of Dillon County; Wm. H Grimball, Judge.

Action for wrongful death by Lucy V. Smith, as administratrix of the estate of Margaret Smith, against Mrs. Ione Edwards. From a judgment on a verdict for defendant, plaintiff appeals.

Reversed and remanded for new trial.

Joe P Lane and H. M. Britt, both of Dillon, for appellant.

W. C Moore, of Dillon, and P. H. McEachin, of Florence, for respondent.

BONHAM Justice.

The appellant brings this action, under Code 1932, § 412, Lord Campbell's Act, as administratrix of the estate of her daughter, Margaret Smith, to recover damages for the death of her intestate, which, she alleges, was caused by the negligence, willfulness, and gross negligence of the defendant, her agent and servant.

It appears that the defendant owned an establishment of the modern pattern known as a Beauty Shop, situated in the town of Latta, S. C., which was operated by Miss Edith Gainey, now Mrs. Vareen, as the employee and agent of the defendant. To this shop, Margaret Smith, a minor, and without the knowledge of her mother, repaired and engaged Miss Gainey to give her a "permanent wave," which term denotes the treatment of the scalp and arrangement of the hair of the client in a particular way. The complaint alleges that because of the negligence and inefficiency of the operator, Miss Gainey, Margaret Smith suffered burns which produced abscesses on the head and other parts of her body, from the effects of which she died.

The answer sets up a general denial, assumption of risk, and contributory negligence, it being alleged that Margaret Smith was a sufferer from the disease known as diabetes; that the effect of such disease is to render the sufferer therefrom especially susceptible to danger of infection and harmful consequences from any injury which produces an abrasion of the skin or flesh.

The case was tried by Judge Grimball and a jury, and the verdict was for the defendant.

The plaintiff appeals upon a number of exceptions, all of which we do not find it necessary to consider seriatim.

The judge charged the jury that a person receiving a permanent wave "assumed any risk ordinarily incident thereto". The exception (No. 2) is that "one receiving a permanent wave does not assume any risk ordinarily incident thereto unless that one is aware of the fact that there is danger; one does not assume an unknown risk, or danger of which one has no knowledge, or reason to expect. Further, the assumption of risk is not applicable to this case."

The character of cases in which the issue of assumption of risk arises, and which are best known to the courts and the profession, are those between master and servant, in which the master is sued for the result of his alleged negligence, against which he defends with the plea that the servant knew of the danger, or defect, and assumed the risk. In the present case it is alleged by way of defense that Margaret Smith, the employer, assumed the risk of having the operator of the beauty shop give her a permanent wave.

The appellant alleges that the doctrine of assumption of risk is not applicable to this case, but we are not in accord with that view. The operating of "Beauty Shops," with its incident of giving "permanent waves," is a new occupation, or profession, and the action of courts in relation thereto upon questions of negligence, liability therefor, and defenses against, including assumption of risk, are not recorded in many cases. But we venture to assert, as a matter of reason and common sense, that the doctrine that an employer may be guilty of assumption of risk is sound. If one employs a driver to take him over a dangerous, precipitous mountain road, the dangers of which he appreciates, he assumes the risk, of course not as against the negligence of the operator of the vehicle, but the driver is not an assurer of the safety of his passenger against dangers known and appreciated by his passenger.

The reports abound with cases arising between master and servant in which the master interposes the defense of assumption of risk; but there are in our own reports no case in direct analogy with the issue here made. But there are some brief references in other jurisdictions and in text-books which we think point the way in illucidation of this question.

7 Corpus Juris Secundum, Assumption, page 137, has this to say:

"Assumption of risk. The term usually applies to the relation of master and servant, but may apply to other relations. * * * It has been said that while the term technically connotes a consequence of contract, Courts have sometimes used this term interchangeably with phrases such as 'taking the risk' or 'incurring the risk', and that the thought behind these phrases, as thus used, has frequently been indicated in the law by the maxim 'volenti non fit injuria'. The term presupposes some danger, a knowledge thereof, a reasonable opportunity to ascertain the nature of the risk, and ordinarily implies appreciation thereof, and acquiescence therein; and has been defined as the acquiescence of an ordinarily prudent man in a known danger, the risk of which he assumes by contract."

We copy the following excerpt from 45 C.J. 1043, under the caption "Assumption of Risk":

"Even the doctrine of assumption of risk, as usually applied, is not applicable because of the absence of any contractual relation between the parties, nevertheless, when plaintiff has brought himself within the operation of the maxim, volenti non fit injuria, he cannot recover. In some jurisdictions it has been held that one who voluntarily exposes himself or his property to a known and appreciated danger due to the negligence of another may not recover for injuries sustained thereby, even though he was in the exercise of ordinary care. This has been referred to as the doctrine of 'incurred risk', 'taking the risk or hazard', or 'running the risk' incident to a known and appreciated danger, and is said to rest upon, or be, in its nature, effect, and import, the equivalent at least, of the principle expressed by the maxim, volenti non fit

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