Chewning v. Chewning

201 S.E.2d 353 (1973) 20 N.C. App. 283

Hazel Bridges CHEWNING
v.
Jasper C. CHEWNING.

No. 7320SC670.

Court of Appeals of North Carolina.

December 27, 1973.

C. Rouse Pusser, Chesterfield, S.C., E. A. Hightower, and Taylor & McLendon by H. P. Taylor, Jr., Wadesboro, for plaintiff-appellant.

Leath, Bynum & Kitchin by Henry L. Kitchin, Rockingham, for defendant-appellee.

PARKER, Judge.

Plaintiff's right of action being transitory, the substantive rights and liabilities of the parties are to be determined in accordance with the laws of South Carolina, the lex loci. Frisbee v. West, 260 N.C. 269, 132 S.E.2d 609; Harper v. Harper, 225 N.C. 260, 34 S.E.2d 185; Coldfelter v. Wells, 212 N.C. 823, 195 S.E. 11; Howard v. Howard, 200 N.C. 574, 158 S.E. 101. The suggestion that North Carolina law should control, because the only negligence alleged in plaintiff's complaint was defendant's failure to warn her of the defective condition of the tire and this negligence first occurred in this State, is without merit. If defendant was guilty of negligent failure in that regard, the same negligence continued right up to the moment of the accident. Moreover, defendant could not become liable until the accident and resulting injury occurred, and it is well established "that in law the place of a wrong is in the State where the last event takes place which is necessary to render the actor liable for an alleged tort." Farmer v. Ferris, 260 N.C. 619, 627, 133 S.E.2d 492, 498; see Annotation, Conflict of Laws— Place of Tort, 77 A.L.R. 2d 1266, and Restatement, Conflict of Laws 2d, § 146. Accordingly, we look to the laws of South Carolina for determination of the substantive rights and liabilities of the parties in this case.

The first question presented is whether the South Carolina Automobile Guest Statute is applicable under the circumstances of this case. That statute, § 46-801, South Carolina Code of 1962, in pertinent part reads as follows:

"§ 46-801. Liability for injury to guests in car.—No person transported by an owner or operator of a motor vehicle as his guest without payment for such transportation shall have a cause of action for damages against such motor vehicle or its owner or operator for injury, death or loss in case of an accident unless such accident shall have been intentional on the part of such owner or operator or caused by his heedlessness or his reckless disregard of the rights of others."

Looking to the laws of South Carolina, we find this statute applicable in the present case.

South Carolina, like our own State, recognizes the right of a wife to maintain a tort action against her husband to recover damages for her personal injuries caused by his actionable negligence. Pardue v. Pardue, 167 S.C. 129, 166 S.E. 101; Oshiek v. Oshiek, 244 S.C. 249, 136 S.E.2d 303 (recognizing rule). The Automobile Guest Statute has been held applicable by the South Carolina Supreme Court in cases brought by a wife against her husband to recover for injuries received by her while riding in his automobile, thereby tacitly recognizing that a wife, no less than a stranger, may under appropriate circumstances occupy the legal status of "guest" within the meaning of the statutes. Guyton v. Guyton, 244 S.C. 357, 137 S.E.2d 273; Jackson v. Jackson, 234 S.C. 291, 108 S.E.2d 86, and see Annotation, 2 A.L.R. 2d 932. While we have found no decision of the South Carolina Supreme Court dealing with the factual situation in which the guest assists in driving the vehicle, at least one court, applying South Carolina law, has held that the mere fact that the plaintiff assisted with the driving would be insufficient to change the status of the plaintiff from that of "guest" within the meaning of the statute. Kaufmann v. Huss, 59 N.J.Super. 64, 157 A.2d 338. This holding is in accord with substantial authority from other jurisdictions having similar statutes, particularly where the circumstances surrounding the parties indicate that the considerations inducing the offer of transportation to the occupant were primarily those of hospitality or sociability. 8 Am.Jur.2d, Automobiles and Highway Traffic, § 479; Annotation, 39 A.L.R. 3d 1083, Automobiles—Guest Statute—Noncash Payment, § 9(c), p. 1109. It is true that the case now before us presents an unusual factual situation in that plaintiff was driving at the moment the accident occurred, but we see no logical reason why this fact should change her status as a person who was being furnished transportation by the owner of the vehicle "as his guest without payment for such transportation" within the meaning of the statute, if the other circumstances were such as to indicate that she held that status. Thus, on the basis of the foregoing authorities it is our opinion that under applicable South Carolina law the mere facts that plaintiff was the wife of defendant and that she was the driver of her husband's vehicle at the time the accident occurred did not preclude her from being his "guest without payment" within the meaning of the South Carolina Automobile Guest Statute. The question remains as to whether, under all of the circumstances disclosed by the evidence in this case, she did occupy that status. In this connection, while we find no controlling South Carolina decision on the matter, "it appears to be well-accepted principle that the occupant of the vehicle who claims that the guest statute is not applicable has the burden of proving that his status was other than that of guest." Annotation, 24 A.L.R. 3d 1400, 1402; accord, Frisbee v. West, supra. In the present case we find no evidence to indicate that plaintiff occupied any status other than that of a "guest without payment." Indeed, all of the evidence indicates she was her husband's guest within the meaning of the statute when the accident occurred. The vehicle belonged to him and was used by him in his business, in which she had no ownership interest. Only rarely did she accompany him while he used the vehicle for business purposes. Both plaintiff and defendant testified that on the occasion in question defendant "invited" plaintiff to accompany him, an expression ordinarily used to connote a courtesy extended by a host to a guest, and all of the evidence indicates that she accepted the invitation solely for purposes of sociability and companionship. There being no evidence to indicate otherwise, under the circumstances of this case plaintiff must be considered as having been defendant's "guest" at the time of the accident in which she was injured.

Finding, as we do, that the South Carolina Automobile Guest Statute applies in this case, plaintiff may not prevail upon a mere showing of simple negligence. She must show that the accident which caused her injury was either intentional on the part of defendant, as to which there was clearly no evidence, or that it was "caused by his heedlessness or his reckless disregard of the rights of others." Whether, under the substantive law of South Carolina, the evidence was sufficient to require its submission to the jury is determinable in accordance with the procedural law of this jurisdiction. Kirby v. Fulbright, 262 N.C. 144, 136 S.E.2d 652. Accordingly, we apply our well-established rule (which apparently is also the rule applied in South Carolina, Guyton v. Guyton, supra) that the evidence must be considered in the light most favorable to the plaintiff. When all of the evidence in this case is so considered, we find it insufficient to warrant submitting to the jury an issue as to whether the accident was caused by her husband's "heedlessness or his reckless disregard of the rights of others," as those words have been interpreted by the South Carolina Supreme Court.

In applying the statute the phrase "caused by his heedlessness or his reckless disregard of the rights of others" must be construed to read "caused by his heedlessness and reckless disregard of the rights of others." Fulghum v. Bleakley, 177 S.C. 286, 181 S.E. 30. Action or conduct in reckless disregard of the rights of others constitutes wanton misconduct, evincing a reckless indifference to consequences of the life, limb, health, or property rights of another. Fulghum v. Bleakley, supra.

Viewing the evidence in the light most favorable to the plaintiff, we find that while it might be sufficient to warrant a jury finding defendant guilty of simple negligence in continuing to operate his vehicle when he knew one of the tires was "kind of slick" and was "worn down right bad," the evidence was not sufficient to support a verdict that defendant was guilty of any wanton misconduct such as to evince a reckless indifference to the safety of others. Saxon v. Saxon, 231 S.C. 378, 98 S.E.2d 803, cited and relied on by both parties, in our view supports the defendant's position rather than that of the plaintiff. That case, as this one, involved an accident which occurred when a weak truck tire blew out. In Saxon, however, in addition to the condition of the tire, there was evidence that defendant drove his truck with a shifting cargo on a very hot day—98 degrees—at a high rate of speed, and in disregard of warnings of his guest. The court held such evidence sufficient for submission to the jury upon the issue of defendant's heedlessness and recklessness, in so doing laying stress upon the excessive speed with which defendant drove "especially under the circumstances of his weak tire and his shifting load." Nothing in the opinion suggests that the court would find evidence of heedlessness and recklessness sufficient in a case such as is now before us where the only evidence of any negligence on the part of defendant is that he continued operation of his vehicle after he knew one of his tires was slick.

We find defendant's motion for a directed verdict was properly allowed, and the judgment dismissing plaintiff's action is

Affirmed.

CAMPBELL and MORRIS, JJ., concur.