Opinion
13851
May 15, 1934.
Before SEASE, J., Union, November, 1931. Affirmed.
Action by Archie Lawson, by his guardian ad litem, W. F. Lawson, against J.L. Lawson. Verdict for defendant, and from an order granting plaintiff's motion for a new trial, defendant appeals.
The order of the Circuit Judge follows:
This matter comes before me upon plaintiff's motion for a new trial herein, which motion was duly noted and marked "heard" during the term at which the verdict was rendered, and, by consent of all parties concerned, was considered by me subsequently.
Upon the trial of this case, I directed a verdict in favor of the defendant, and plaintiff by this motion, challenges the correctness of such conclusion. Assuredly, if I was in error in directing a verdict and in refusing to submit the cause to the jury, plaintiff's motion should be granted. And in passing upon this motion, just as in considering the application of the defendant for a directed verdict, it is incumbent upon me to consider the evidence in the light most favorable to the plaintiff.
It appeared from the evidence that on or about October 2, 1931, one Childers, who was an agent of the defendant in charge of one of his large commercial trucks and trailers, and, as such agent, was bringing the said truck and trailer from Spartanburg to Union, S.C. invited the plaintiff, together with two of his companions, to ride with him from Spartanburg to Union, where the plaintiff lived. Pursuant to this invitation, the plaintiff, with one of his companions, got upon the heavy trailer attached to defendant's truck, and the other companion got into the cab with Childers.
As this truck was traveling along the State highway from Spartanburg to Union and as it started around a sharp curve upon such highway near the village of Whitestone, it collided with an automobile traveling along the same highway, but in the opposite direction, by reason of which collision the plaintiff sustained the injuries complained of.
At the conclusion of the testimony, as previously observed, I directed a verdict in favor of the defendant upon the ground that the agent, Childers, was without authority to have invited plaintiff to ride upon the truck in question and that accordingly the defendant owed no duty whatsoever to the plaintiff. In so doing, I am convinced that I committed error. This issue whether the agent had authority to invite plaintiff to ride upon the truck was only pertinent to fix the character of the relationship between the plaintiff and the defendant at the time of the collision. If the agent had such authority, then the relationship would have been that of invitee; while, on the other hand, if I was correct that such authority did not exist, then the relationship established was that of a trespasser. This finding is compelled by the apt language of Mr. Chief Justice Pope in Burns v. Southern Railway (1902), 63 S.C. 46, 57, 40 S.E., 1018, 1022:
"What relation, we may ask just here, did this plaintiff sustain to the defendant, if he occupied its cab attached to its material train, when he went into its cab by permission of the conductor and engineer of said material train, without the permission or authority of said agents to so invite the plaintiff into defendant's said cab? He was a trespasser." (Italics added.)
Even if I was correct, in concluding that the agent was without such authority, the plaintiff thus was, in line with the holding in the Burns case, a trespasser upon the truck and would be entitled to go to the jury if there was any evidence of willfulness on the part of the defendant's agent proximately causing plaintiff's injuries. This conclusion is clearly demonstrated by the recent decision of Jenkins v. Southern Railway — Carolina Division (1929), 152 S.C. 386, 150 S.E., 128, 66 A.L.R., 416, where the plaintiff's intestate, at the time he sustained the injuries from which his death resulted, was traveling upon an engine of the defendant railroad company at the invitation of the engineer who, it seems, was without the authority so to invite. While thus riding as a trespasser upon such engine, the plaintiff's intestate was injured by reason of a head-on collision. In sustaining plaintiff's right to recover in that case, Mr. Chief Justice Blease said (page 393 of 152 S.C. 150 S.E., 128, 130):
"The railroad company owed to the intestate, even if he was not an employee and had no right to be on the engine, the duty not to willfully and wantonly injure him."
Subsequently in the same opinion, the learned Chief Justice observed further (page 397 of 152 S.C. 150 S.E., 128, 132):
"In the case at bar, the defendant raised the issue that the intestate was a trespasser. When it did this, it conceded its responsibility for his death, if it should be proved that he was willfully injured."
The case just cited appears controlling herein and cannot be distinguished from the instant cause. Accordingly, if there was in the record any evidence of willfulness on the part of the defendant's agent proximately causing plaintiff's injuries, the case was one properly for submission to the jury, and I erred in directing a verdict in plaintiff's favor.
A review of the evidence attests abundant proof of willfulness on the part of the defendant's agent. Thus, the testimony as introduced by the plaintiff established that the plaintiff's agent, at the time and place of plaintiff's injuries, was driving the truck in question at a rate of speed between 40 and 50 miles per hour. Plaintiff's witnesses also swore that, although defendant's agent could see approaching along the same road, going in the opposite direction from him, the other automobile for approximately 100 yards before the wreck, yet that such agent turned and propelled his truck to his left and over across the center of the road as he drew near unto the approaching car. Their testimony also was to the point that the defendant's truck and trailer was being driven at such a fast rate of speed at the time of the wreck that only if defendant's agent turned it sharply to the left as it swung around the sharp curve located at the scene of the wreck could the agent have kept the trailer, upon which plaintiff was traveling, in the road.
In short, viewing the evidence in the most favorable light to the plaintiff as this Court was required to do upon the motion for a directed verdict, it established that the defendant's agent, at the time of the wreck, was driving around a sharp curve at a rate of speed almost twice the statutory maximum, and pointed the conclusion that, although such agent saw the approach of another vehicle traveling in the opposite direction upon the same highway, he turned his heavy truck and trailer, traveling at such illegal speed, over the center of the rightway, thus colliding with the approaching automobile and inflicting upon the plaintiff his injuries.
This testimony spelled out two violations of the statute law of this state and made out such evidence of willfulness as to require the submission of that issue to the jury. Sections 1616 and 1629, Criminal Code of South Carolina (1932), Keel v. Railway Company (1918), 108 S.C. 390, 393, 95 S.E., 64; Callison v. Ry. Co. (1916), 106 S.C. 123, 129, 90 S.E., 260. Whether that willfulness was the proximate cause of plaintiff's injuries is a question for the jury. Townsend v. State Highway Department (1930), 156 S.C. 541, 153 S.E. 572; McBride v. Railroad Co. (1927), 140 S.C. 260, 138 S.E., 803; Bowers v. Carolina Public Service Corp. (1928), 148 S.C. 161, 145 S.E., 790.
Accordingly, I am of opinion that under the clear and controlling authority of the Jenkins case, supra, the plaintiff made out such a case as required its submission to a jury, and that I erred in directing a verdict against him.
It is, therefore, ordered that a new trial herein be and the same hereby is granted.
Messrs. J. Gordon Hughes and Lyles Daniel, for appellant, cite: Agency: 232 N.W., 626; 107 A., 607; 14 A.L.R., 131; 74 A.L.R., 160; 276 P., 244; 124 S.C. 19. Proximate cause: 169 S.C. 1; 116 S.C. 41; 140 S.C. 260.
Messrs. Barron, Barron Walker and Nicholl, Wyche Russell, for respondent, cite: Trespasser entitled to recover if injuries caused by willfulness: 63 S.C. 46; 40 S.E., 1018; 53 L.R.A., 330; 152 S.C. 386; 150 S.E., 128; 66 A.L.R., 416; 41 A.L.R., 1345; 95 A.S.R., 266. Master liable for acts of servant: 124 S.C. 19; 115 S.E., 900. As to negligence per se: 108 S.C. 390; 95 S.E., 64; 106 S.C. 123; 90 S.E., 260; 65 S.C. 326; 43 S.E., 817; 161 S.C. 297; 159 S.E., 625; 135 S.C. 506; 134 S.E., 503; 163 S.C. 42; 20 R.C.L., 21; 88 S.C. 7; 72 S.C. 1.
May 15, 1934. The opinion of the Court was delivered by
This action, commenced in the Court of Common Pleas for Union County, November 17, 1931, is a suit on the part of the plaintiff, Archie Lawson, by his guardian ad litem, W.F. Lawson, against the defendant, J.L. Duncan, for recovery of damages for personal injuries alleged to have been sustained while he was riding in a trailer of a truck owned by the defendant, caused by alleged negligence, recklessness, willfulness, and wantonness of the defendant, in the particulars set forth in the complaint. Issues being joined the case was tried at January, 1933, term of said Court, before his Honor, Judge T.S. Sease, and a jury, resulting in a verdict for the defendant by direction of the Court. In due time the plaintiff moved in said Court for a new trial, which was granted. This appeal on the part of the defendant is from the order granting a new trial.
The appellant imputes error to the trial Judge under five exceptions, as follows:
"1. In granting the new trial, the Court was controlled by the theory that any violation of a statute is evidence of wilfulness (or creates a presumption of wilfulness), and that such wilfulness is the presumptive proximate cause of injury, whereas, it is submitted that a violation of one of the manifold regulations imposed by statute or ordinance upon the operation of motor vehicles on the highways has not been shown by experience to evidence wilfulness, and can not be presumed to have proximately caused the injury or damage.
"2. That evidence affirmatively showed that the defendant was not present at the time of the accident, and that his driver was not authorized to carry passengers, gratuitously or for hire; that the plaintiff solicited a ride from the driver; that, in permitting him to ride, the driver was acting beyond the scope of his authority, and, therefore, the defendant could not be held for a tort committed by his employee, outside the scope of his employment.
"3. The evidence affirmatively showed that plaintiff was a guest of the driver, Childers, who had no authority to give the plaintiff the status of guest of defendant; therefore, even had Childers been heedless, he could have made only himself liable to the plaintiff, and not the defendant.
"4. The plaintiff's witness testified that they thought the collision was caused because of the excessive speed of the negro car, and that it was not the fault of Childers; therefore, there is a failure of evidence tending to show actionable negligence or wilfulness on the part of the defendant, operating as a proximate cause of plaintiff's injury.
"5. In granting a new trial, the Court presumed wilfulness on the part of the defendant from the alleged violation of the speed regulation, and, without any other evidence to support the inference, based on that a presumption of proximate cause, or rather, he held that a jury would be warranted in presuming wilfulness from violation of traffic laws, and, on that presumption to mount the further presumption that the violation was the proximate cause of the injury."
In the order issued by the trial Judge, granting a new trial, which order will be incorporated in the report of the case, will be found a clear statement of the case and presentation of the issues involved, of fact and law; and for the reasons assigned by his Honor in said order, we think his Honor very properly granted a new trial in the case. As stated by his Honor in discussing the case, the case is controlled by the principle declared in the case of Burns v. Southern Ry., 63 S.C. 46, 40 S.E., 1018, and the case of Jenkins v. Southern Ry., 152 S.C. 386, 150 S.E., 128, 66 A.L.R., 416. If the driver of the truck, acting in the scope of his agency, was authorized to invite the plaintiff to ride on the truck, and the plaintiff got upon the truck in response to an invitation extended by the driver, the defendant would be liable to the plaintiff for any injury received, due to the negligence of the driver as a proximate cause thereof; but if the driver of the truck, though regularly employed by the defendant for that purpose, without authority to invite the plaintiff to ride on the truck, did, nevertheless, extend such invitation to the plaintiff and the plaintiff got upon the truck in response to such invitation, he would not be an invitee but a trespasser thereon, and the defendant could be held only for the willfulness of the driver, resulting in injury to the plaintiff as a proximate cause thereof. In our opinion the trial Judge was right in holding that the testimony required the submission of the case to the jury on the issue of willfulness of the driver, resulting in injury to the plaintiff as a proximate cause thereof.
In regard to the contention of the appellant, that in granting the new trial, the Court was controlled by the theory that any violation of a statute is evidence of willfulness (or creates a presumption of willfulness), and that such willfulness is the presumptive proximate cause of injury, we wish to state we do not so construe the language used by his Honor in said order. Whether the violation of a statute, in such cases, is evidence of willfulness, is a fact or issue to be considered in connection with all of the other facts and circumstances surrounding the case, and if more than one inference can reasonably be drawn from the testimony in the case on this issue, it is, of course, a matter for the jury to determine.
In our opinion a jury question was raised by the testimony on the issues involved. It is, therefore, the judgment of this Court that the order of the Circuit Judge in granting a new trial be and the same is hereby affirmed.
NOTE: Let the order of the Circuit Judge be incorporated in the report of the case.
MR. CHIEF JUSTICE BLEASE, MESSRS. JUSTICES STABLER, and BONHAM and MR. ACTING ASSOCIATE JUSTICE W.C. COTHRAN concur.