The opinion of the court was delivered by: Legge, Justice.
December 11, 1957.
On August 24, 1956, at eleven o'clock at night, a collision occurred on Commander Street in the city of Florence, S.C. between a 1950 Ford automobile, the property of the plaintiff Howle, which was being driven by one Eugene Brown, and a 1942 Chevrolet owned and driven by the defendant McDaniel. Howle sued McDaniel in the Civil Court of Florence for the damage to the Ford; McDaniel pleaded a general denial and contributory negligence and counterclaimed for the damage to the Chevrolet and for his personal injuries alleged to have been sustained as the result of Brown's negligent operation of the Ford.
At the conclusion of all the testimony the trial judge, holding that it was susceptible of no reasonable inference other than that the collision had resulted from the negligence of both drivers, directed a verdict against the plaintiff on the cause of action set forth in the complaint, and against the defendant on that set forth in the counterclaim. Thereafter, plaintiff's motion for judgment n. o. v. or, in the alternative, a new trial, was denied.
The plaintiff alone appeals, and by his exceptions charges error on the part of the trial judge in directing a verdict against him.
Mr. Howle, an elderly man, operated a combination grocery store and automobile service station on the Timmonsville highway not far from the city of Florence. Eugene Brown, the driver of the Ford, had been in his employ for some five or six years, helping about the store and sometimes delivering merchandise. Brown also worked, occasionally, as a painter, on his own time. As to whether or not, at the time of the accident, Brown was engaged within the scope of his duties as Mr. Howle's employee, there was no testimony other than that of Brown himself and Mr. Howle.
Brown, who lived on Sumter Street in the City of Florence, testified: that he always kept Mr. Howle's Ford car at night, using it to go home after work and to return to work in the morning; that occasionally he used the car to make delivery of groceries; that his work for Mr. Howle consisted of helping with the sale of gasoline, oil and groceries, and running the store when Mr. Howle went home for dinner; that when there was nothing for him to do at the store he would, with Mr. Howle's permission, work as a painter; that on August 24, 1956, he quit work at the store at 7:30 p.m., took the car to his home, and later that evening went, in the car, to visit his uncle, who had been sick; that from his uncle's house he stopped by to see a friend, Joe Rogers, who lived on Wilson Street; and that from Rogers' house he was driving home, alone, when the collision occurred.
Mr. Howle testified as follows:
"Q. (by defendant's counsel): Well, what was it (the Ford car) used for, Mr. Howle? A. It was mostly used for me to go home and back in and for Eugene to go home in. Eugene was driving me at that time, I wasn't able to drive, he was doing my driving, and that is why he was taking it home with him.
"Q. I see, and he kept it, and it enabled him to get back and from work at his convenience? A. That is right."
And, upon being recalled:
"Q. Yes, sir. A. Well, at that time and before that time I was sick and Gene stayed with me. Gene stayed with me and I fed him and I let him take my car home and bring it back and pick me up at the house, I gave him breakfast and we went on to the store. If he had a paint job to do I let him have my car to do the paint job.
"Q. Now, for what purpose did you let him have the car at night? A. Just for him to go home and come back and pick me up.
"Q. How far did he live from you? A. Well, I would say approximately a couple of miles.
"Q. (by defendant's counsel): Mr. Howle, you said that Brown, Gene Brown, had the right to take the car on home with your permission? A. Yes, sir.
"Q. Now, when he painted, he wasn't doing the painting for you, that was on his own time, wasn't it? A. Yes.
"Q. And he had permission to take the car to paint, if he so desired? In other words, he could do with the car anything he wanted to until he needed it the next morning to bring you to work? A. No, my instructions was for him not to carry it away from the house.
"Q. But he did it, he took it for paint work and other things? A. Yes, with my permission.
"Q. Yes, with your permission. In other words, he had the car at his house and he could go painting or anything else unless you wanted him to take you to work, isn't that right? A. Not at night.
"Q. Did you tell him not to take the car at night? A. Yes.
"Q. Specifically, not to use the car at night? A. Yes.
"Q. In other words, whenever he took the car at night it was without your permission? A. Not to use it but to go home and come back next morning.
"Q. In other words, you never have refused to let him use it, whenever he asked you for it, have you? A. Well, I wouldn't say I haven't, I have done it in times past.
"Q. Do you recall any particular time when he asked and you refused to let him have it? A. Yes, I ...