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BENTON v. PELLUM

November 13, 1957

NINA MAE BENTON, AN INFANT, BY HER GUARDIAN AD LITEM, LEWIS BENTON, RESPONDENT,
v.
J.B. PELLUM, APPELLANT.



The opinion of the court was delivered by: Oxner, Justice.


   November 13, 1957.
Respondent brought this action to recover damages for personal injuries sustained while riding as a guest in an automobile driven by appellant. The trial resulted in a verdict in favor of respondent for $4,500.00 actual damages and $4,500.00 punitive damages. The Court granted a new trial unless respondent remitted on the record $2,000.00 of the verdict for punitive damages. This was done and judgment entered for $7,000.00.

The first question is whether the Court below erred in refusing a motion for a directed verdict upon the ground that there was no evidence of actionable recklessness or wantonness on the part of appellant. Section 46-801 of the 1952 Code, as construed by this Court, restricts liability to a guest to cases where the injury has resulted from either intentional or reckless misconduct on the part of the owner or operator. Fulghum v. Bleakley, 177 S.C. 286, 181 S.E. 30. There is no claim in the instant case of intentional misconduct on the part of appellant. Hence our inquiry is whether or not there is any evidence reasonably sustaining an inference of actionable recklessness.

About 11:00 P.M. on December 24, 1954, at a point on Highway No. 63 approximately three miles west of Walterboro, South Carolina, a 1952 Ford automobile driven by appellant struck the right side of a 1946 Buick which, according to respondent, was stalled in the highway. Respondent and four or five others were injured. One of the passengers in the Buick was killed.

On the front seat of the Ford with appellant were his sister and a nephew. Respondent, then fifteen years of age, was riding on the rear seat with another nephew of appellant. Earlier in the evening these young people had gone to a skating rink at Scotia in Hampton County and at the time of the accident were returning to Walterboro. Appellant's sister testified that on this return trip he drove at an excessive rate of speed and on one occasion when driving about 70 miles an hour, she "had to call him down."

Highway No. 63 is paved. On either side there are shoulders wide enough for a car to be driven entirely off the road. Appellant was traveling in an easterly direction. The road, with which he was thoroughly familiar, was level and the night was clear. As appellant approached the place of the collision there was a very slight curve to the left and on the northern side of the highway there was a combination store and filling station which was well lighted. On the night of the accident they were having a barbecue at this place and there were a number of cars parked around it.

Respondent was asleep at the time of the collision. The testimony of her witnesses may be briefly summarized as follows: The driver of the Buick with which appellant collided, after attending the barbecue with his wife and several friends, entered Highway No. 63 with the intention of making a left turn and driving in an easterly direction. His lights were on and there were no cars approaching. When in about the middle of the highway before making his left turn, the car then being at about a ninety-degree angle facing the southern shoulder, he choked down. He was unsuccessful in his efforts to start the engine. After being in this position for about a minute or a minute and a half, appellant was seen approaching three or four hundred yards away, traveling at a speed variously estimated at from 75 to 100 miles an hour. He did not slow down or make any effort to avoid striking the Buick until just before the accident. The front of his car struck the Buick between the two right doors making an indentation of about a foot and a half and knocking or pushing the Buick sideways down the highway a distance of 55 feet. Both cars were practically demolished. An examination after the accident revealed brake marks on the pavement extending a distance of nine feet before the impact.

Appellant testified that as he approached the place of the accident, traveling at a speed of 40 or 50 miles an hour, he was blinded by the bright lights of a car parked at the store. He dimmed his lights and when he turned his bright lights back on, he saw the Buick automobile across the highway in his lane of traffic. He was not sure whether the Buick, which he said had no lights on, was stopped or moving but thought it was moving. He says he immediately applied his brakes but was unable to avoid the collision. His nephew, who was sitting on the rear seat with respondent, testified that when appellant "hit the brakes and the tires began squealing", he looked up and saw the Buick, without lights, across the road in front of them. He was of the opinion that the Buick entered the highway from the filling station and was 40 or 50 feet away "when it started across the road in front of us." The other nephew, who was sitting on the front seat with appellant, was quite positive that when they approached the place of the accident, appellant was not driving faster than 40 or 50 miles an hour.

Considering this conflicting testimony in the light most favorable to respondent, as must be done in passing on a motion for a directed verdict, we think the jury could reasonably infer that appellant was reckless in failing to keep a proper lookout, in failing to have his car under control, and in driving at an excessive rate of speed, and further that such recklessness was a proximate cause of the collision. Not to be overlooked is the well-settled principle that negligence or recklessness, to render a person liable, need not be the sole cause of an injury. It is sufficient to show that it is a proximate concurring cause. Huggins v. Atlantic Coast Line Railway Co., 158 S.C. 501, 155 S.E. 839; Landreth v. Atlantic Refining Co., 177 S.C. 490, 181 S.E. 727; Horne v. Southern Railway Co., 186 S.C. 525, 197 S.E. 31, 116 A.L.R. 745; Culbertson v. Johnson Motor Lines, Inc., 226 S.C. 13, 83 S.E.2d 338.

The refusal of the motion for a directed verdict is fully sustained, among others, by the following decisions: Peak v. Fripp, 195 S.C. 324, 11 S.E.2d 383; Brown v. Hill, 228 S.C. 34, 88 S.E.2d 838; Saxon v. Saxon, S.C. 98 S.E.2d 803.

The next question is whether the Court erred in excluding the result of a blood analysis made by the Medical College of South Carolina, offered by appellant for the purpose of showing that one Hampie Hudson, the driver of the Buick, was highly intoxicated at the time of the collision. The trial Judge concluded that the proper foundation had not been laid for the admission of this report.

It appears that after the accident Hudson and appellant were taken to the Colleton County Hospital at Walterboro, where about 12:30 A.M. on December 25th the technologist drew a blood sample from both of these men. He testified that each sample was placed in a vial labeled with the name of the person whose blood was taken, and that these bottles, along with a request that an alcohol determination be made, were wrapped for mailing to the Medical College at Charleston. He said, as was customary, he placed the package on the desk of the Superintendent of the Hospital but had no personal knowledge as to how it was thereafter handled. According to his testimony, the usual practice is to mail the specimens to the Medical College or send them by a highway patrolman.

The chemist at the Medical College in charge of running blood tests testified that specimens to be analyzed are put on his desk by his secretary who gets his mail; that on Monday, December 27th, he found on his desk a package containing two samples bearing the names of appellant and Hampie Hudson; that he unwrapped the package and alcohol tests were run on both specimens under his supervision; that the test on Hampie Hudson showed ".266 miligrams per cent of alcohol"; and that a person having this much alcohol in his blood would be highly intoxicated. He conceded that the only way he knew whose blood was being tested was from the label on the bottle. His testimony is silent as to how this particular package was wrapped or whether there was any postmark on it.

The problem of showing that the specimen analyzed actually was taken from the subject person is frequently a difficult one, for ordinarily the specimen is passed through several hands before being analyzed and it is not possible to establish identity by a single witness. Many cases on the subject will be found in an annotation in 21 A.L.R.2d, beginning on page 1216. While proof need not negative all possibility of tampering, People v. Riser, 47 Cal.2d 566, 305 P.2d 1, it is generally held that the party offering such specimen is required to establish, at least as far as practicable, a complete chain of evidence, tracing possession from the time the specimen is taken from the human body to the final custodian by whom it is analyzed. Joyner v. Utterback, 196 Iowa 1040, 195 N.W. 594. As stated in Rodgers v. Commonwealth, 197 Va. ...


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