Sturcken v. Richland Oil Co.
| Decision Date | 24 August 1966 |
| Docket Number | No. 18553,18553 |
| Citation | 248 S.C. 355,150 S.E.2d 341 |
| Parties | Edward F. STURCKEN, Respondent, v. RICHLAND OIL COMPANY, Inc., Appellant. |
| Court | South Carolina Supreme Court |
Lumpkin, Kemmerlin & Medlock, Norbert A. Theodore, Columbia, for appellant.
Henry H. Edens, Nelson, Mullins, Grier & Scarborough, Columbia, for respondent.
In my judgment, the errors in the charge, which are expounded in the opinion of the court and which were carefully preserved for review on appeal, were misleading and confusing to the jury and, at least, with respect to the instructions on contributory negligence, were clearly prejudicial to the defendant. I am unable to agree that the defendant by its brief has abandoned or waived the errors in the charge, except as to the narrow issue which alone is resolved by the opinion of the court in affirming the judgment below. Prejudicial error is apparent when we consider that under the instructions the defense of contributory negligence may have been rejected by the jury on findings that both parties were guilty of causal negligence, but that the defendant was guilty of a higher degree or 'grade' of negligence than was the plaintiff, even though neither party was found to be guilty of willfulness or wantonness. I, therefore, respectfully dissent.
The foregoing was written as a dissent to the opinion drafted for the court by Justice Lewis. A majority of the court having concurred, this opinion becomes the prevailing opinion. Accordingly, the judgment appealed from is reversed.
The plaintiff sustained injury and damage in a collision between his automobile and a truck of the defendant, for which he was awarded judgment in the amount of $25,000.00 actual damages. The defendant has appealed from the judgment, contending that a new trial should be granted because of alleged error in the instructions to the jury an certain rulings with respect to the admissibility of testimony. The questions will be disposed of in that order.
The complaint alleged that plaintiff's damage was brought about by the 'negligence, carelessness, recklessness, willfulness and wantonness' of the agent of defendant in the operation of defendant's truck. The defenses of contributory 'negligence and willfulness' were interposed by the defendant. Admittedly, the testimony presented jury issues as to alleged negligence, recklessness, willfulness and wantonness on the part of the defendant's agent and contributory negligence and willfulness on the part of the plaintiff.
In instructing the jury upon the foregoing issues, the trial judge classified negligence in three grades, namely: (1) 'simple negligence,' (2) 'gross negligence' or 'recklessness,' and (3) 'willfulness and wantonness'; and then defined each of the three named grades.
Simple negligence or Carelessness was defined as the failure to use due care, about which there is no question.
'Gross negligence' or 'recklessness' was defined as a 'degree of negligence materially greater than that which would amount to simple negligence or carelessness,' but less than willfulness or wantonness; and indicated 'the absence of even the slightest degree of care.'
Finally, 'willfulness and wantonness' was described as 'the most serious and severe type negligence' and indicated an act 'done intentionally and consciously, or in such a completely negligent manner as to denote a conscious disregard for the rights and safety of others.'
The defendant contends that the trial judge erred in his classifications of negligence and that the charge as to contributory negligence and willfulness, when taken in connection with the instructions as to the grades of negligence, amounted to permitting the jury to compare the negligence of the parties, which is not sanctioned in this State.
We find no basis in the prior decisions of this court or in this record to justify the classification of negligence into three categories, as was done in this case.
The trial judge instructed the jury that Reckless was different in degree from Willfulness and wantonness, which was error. We have consistently held that recklessness is the equivalent of willfulness and wantonness. Pickett v. Southern Railway, 69 S.C. 445, 48 S.E. 466; Bussey v. Charleston & Western Carolina Ry., 75 S.C. 116, 55 S.E. 163; Cole v. Blue Ridge Ry., 75 S.C. 156, 55 S.E. 126; Crosby v. Seaboard Air Line Ry., 81 S.C. 24, 61 S.E. 1064; Fulghum v. Bleakley, 177 S.C. 286, 181 S.E. 30; Spurlin v. Colprovia Products Co., 185 S.C. 449, 194 S.E. 332; Cummings v. Tweed, 195 S.C. 173, 10 S.E.2d 322; Hicks v. McCandlish, 221 S.C. 410, 70 S.E.2d 629; Jeffers v. Hardeman, 231 S.C. 578, 99 S.E.2d 402; Yaun v. Baldridge, 243 S.C. 414, 134 S.E.2d 248.
The jury was also instructed that punitive damages might be awarded upon a finding of gross negligence which was defined as the failure to exercise 'even the slightest degree of care.' See: Anderson v. Ballenger, 166 S.C. 44, 164 S.E. 313. The instruction that gross negligence, as defined, might form the basis of an award for punitive damages was error.
No where did the pleadings in this case characterize the conduct of defendant's agent as 'gross negligence'. And, if they had, such could not form the basis of an award for punitive damages unless the negligence was so gross as to amount to willfulness or wantonness which is the conscious failure to exercise due care or 'conduct so grossly negligent that a person of ordinary reason and prudence would then have been conscious of the probability of resulting injury.' Yaun v. Baldridge, supra.
The applicable principles were thus stated in Hicks v. McCandlish, supra, 70 S.E.2d 629, 631:
'Gross negligence is a relative term, and means the absence of care that is necessary under the circumstances, but the absence of this care alone, whether called 'gross' or 'ordinary' negligence, does not authorize the jury to give exemplary damages. We have held in many cases that exemplary damages should not be awarded for mere gross negligence, and that the element that distinguishes actionable negligence from wilful tort is inadvertence. (Citing cases.)
'The principle is re-stated and the earlier cases cited in Bell v. Atlantic Coast Line R. Co., 202 S.C. 160, 24 S.E.2d 177, 182, in which the court quoted the following from Sample v. Gulf Refining Co., 183 S.C. 399, 191 S.E. 209:
"While punitive damages are recoverable for negligence so gross or reckless of consequences as to imply or to assume the nature of wantonness, willfulness or recklessness, yet they are not awarded in this state for mere gross negligence.'
Therefore, in so far as the issues in this action were concerned, there was involved only 'simply negligence' and recklessness, willfulness or wantonness.' Proof of the first would entitle the plaintiff to actual damages and proof of the second would support in addition an award for punitive or exemplary damages. The 'intermediate' grade of negligence, as defined in the charge, created no additional right to recover actual damages and did not sustain any right to recover punitive damages.
While we agree that the classification of negligence into three grades was error, such classification, apart from the issue of contributory negligence and willfulness, could have only affected defendant's liability for punitive damages. Since no award was made for punitive damages, the erroneous classifications and definitions of negligence, considered alone, resulted in no prejudice to the defendant.
The real basis, however, of defendant's attack on the charge lies in the claim that the erroneous instructions as to the grades of negligence resulted in prejudice, when considered in connection with the charge as to contributory negligence and willfulness.
Following the foregoing definitions of negligence, the jury was instructed as follows with reference to the issue of contributory negligence and willfulness:
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Langley v. Boyter
...in South Carolina is subject to statutory exception in suits against railroads by their employees); Sturcken v. Richland Oil Company, 248 S.C. 355, 150 S.E.2d 341 (1966) (held jury charge on doctrine of contributory negligence was improper where charge referred to "grades" of negligence).17......