Dissenting Opinion.

[113 S. C.

effect of which was to render them liable for the negligence of the driver, unless it was made to appear that they had the A contrary rule right to direct the management of the car. would prevent an injured occupant from recovering damages against the owner of the automobile for the negligence of the driver as the agent or servant of the owner.

That the occupant of an automobile, irrespective of the imputed negligence of the driver, may be guilty of such negligence as will bar a recovery for injuries sustained through the negligence of a third party.

Referring to the uncontradicted testimony, it will be seen that the two young ladies, who were passengers in the automobile, were friends and guests of the plaintiff and her husband; that there is no evidence tending to show that the plaintiff had the right to direct and control the management of the automobile; and that all her suggestions as to the running of the car were in favor of the utmost care and caution.

There is no testimony whatever tending to show that the relation of master and servant, or principal and agent, existed between her and the driver, or that she would have been responsible to third parties for the negligence of the driver.

Upon a motion for a new trial, his Honor thus explained the reasons for his limited charge:

"There was no evidence in the case, which in any degree tended to show any other relation, existing between the parties riding in the automobile, except that of persons engaged in a common enterprise or purpose. There was no evidence brought to the attention of the presiding Judge, which in any way tended to show that the plaintiff was riding in the automobile as the invited guest of the driver, or of any other person, or that the automobile was hired or being driven by any hired driver. It is, of course, well settled that where one is in an automobile by invitation of another, or is being

driven in a hired vehicle whereof the driver is furnished by the owner, the negligence of the driver in such case cannot be imputed to the passenger so riding in such vehicle. The only view of the evidence upon this point, discussed in the hearing of the presiding Judge, was the view suggested by defendant's counsel that the persons engaged in riding in the automobile, at the time in controversy, were persons engaged in a common enterprise; and consequently the charge was limited upon the point." (Italics added.)

If the Circuit Judge had charged the law to the jury, as explained by him, in refusing the motion for a new trial, the verdict might have been different.

He evidently entertained the erroneous view of the law that the negligence of the driver of an automobile was imputed to the other occupants thereof, although the common purpose was merely to enjoy the social pleasure of riding therein, without reference to the right of an injured occupant to direct and control its management.

It was the duty of the defendant to show that the plaintiff was guilty either of contributory or imputed negligence, of which there was no testimony.

The charge of the Circuit Judge was inapplicable to the facts of the case, and tended to confuse the jury, to the prejudice of the appellant.

These exceptions are sustained.

Eighth Exception. The case of Welling v. Association, 56 S. C. 296, 34 S. E. 409 (which was affirmed on writ of error to the Supreme Court of the United States, 181 U. S. 47, 21 Sup. Ct. 531, 45 L. Ed. 739), shows that this exception cannot be sustained, as it in no respect contravenes the public policy or interest of this State.

Ninth and Tenth Exceptions. The ninth exception cannot be sustained, as it has not been made to apear that the Circuit Judge erroneously exercised his discretion in refusing to withdraw the statute from the consideration of the jury.

Nor can the tenth exception be sustained, for the reason that it does not appear from the record that there was a written request to charge.

Eleventh Exception. Even if there was error, it was not prejudicial.

For these reasons, I dissent.

MR. JUSTICE WATTS Concurs.

10288

HYDE ET AL. v. LOGAN ET AL.

BOYKIN ET AL. v. SAME.

(101 S. E. 41.)

1. ELECTIONS-PRIMARY ELECTION CONTEST; JURISDICTION OF COURT TO REVIEW.-Court has jurisdiction to review the action of the Democratic executive committee of a city in ascertaining and declaring result of primary election for candidates for mayor and aldermen; there being no inference to the contrary to be drawn from Act February 20, 1915 (29 St. at Large, p. 163), adding section 282k to Civ. Code 1912, making action of State committee in reviewing action of county committee final, for such statute, even as to action of State committee, makes its decision final only so far as the councils of the party are concerned.

2. ELECTIONS-PRIMARY ELECTION CONTEST; DISQUALIFICATION OF MEMBERS OF EXECUTIVE COMMITTEE.-Members of party executive committee, hearing primary election contest, who were candidates at the election, were disqualified from acting with the committee in deciding questions presented by the contest.

3. ELECTIONS-HARMLESS ERROR AND IRREGULARITIES;

PRESUMPTIONS

FAVORING VALIDITY.-Errors which do not appear to have affected the result will not be allowed to overturn an election, and every reasonable presumption will be indulged to sustain it.

4. ELECTIONS-PRIMARY ELECTIONS; HARMLESS ERROR.-In certiorari to contest primary election, where, if all votes contested had been given to petitioners for certiorari, their opponents would still have had a majority, it was apparent that petitioners had suffered no injury from any irregularities.

65

5. ELECTIONS-PRIMARY ELECTIONS; BURDEN OF PROVING ERROR IN COUNT.-Where petitioners for certiorari, to review action of party executive committee in ascertaining and declaring result of primary election, alleged error on the part of the committee in refusing their petition for a recount, it was not enough for petitioners to make it appear there were possible errors in the count, but they should have made out at least a probable case.

6. ELETCIONS-PRIMARY ELECTION CONTEST; OBJECTIONS NOT RAISED BELOW.-Disqualification of executive committee members from acting with the committee in hearing primary election contest cannot avail petitioners on certiorari to review proceedings of committee, where disqualification was not objected to at time of hearing.

7. JUDGES-EFFECT OF DISQUALIFICATION.-The action of a disqualified Judge is not void, but voidable only.

8. ELECTIONS-PRIMARY ELECTION CONTEST; DISQUALIFICATION OF MEMBERS OF EXECUTIVE COMMITTEE.-Members of executive committee were not disqualified from hearing primary election contest by reason of being law partners of one of the candidates.

9. ELECTIONS-PRIMARY ELECTION CONTEST; SEPARATION OF WITNESSES. -Separation of witnesses at primary election contest hearing before executive committee was discretionary with the committee, and where contest engendered bitter feeling the committee did not commit error by separating the witnesses.

10. ELECTIONS-PRIMARY ELECTION CONTEST; RIGHTS OF VOTER.-The right to vote is a substantial right protected by law, and a voter whose right has been challenged should be allowed to hear the evidence against his right, in order that he may have opportunity to adduce evidence in rebuttal or in support of his right.

11. TRIAL-EXCLUSION OF WITNESSES-The discretion to exclude witnesses rarely, if ever, extends to the exclusion of the parties to a cause.

12. ELECTIONS-PRIMARY ELECTION CONTEST; RIGHT OF EXECUTIVE COMMITTEE TO DELEGATE POWER TO DETERMINE.-Power to hear and determine primary election contest, given executive committee, being judicial, cannot be delegated to a subcommittee.

13. ELECTIONS-PRIMARY ELECTION CONTEST; EXECUTIVE COMMITTEE'S RIGHT TO INTERPRET RULES.-The executive committee's right to interpret rules made by them as to primary election contests did not give it the right to give rules a meaning of which their language is not susceptible.

14. ELECTIONS-PRIMARY ELECTION CONTEST; AMENDMENT OF RULES BY EXECUTIVE COMMITTEE.-Power given executive committee to make rules as to primary election contests did not give committee the right to amend them at any time.

5 S. C. 113

15. ELECTIONS-PRIMARY ELECTION CONTEST; RULES OF EXECUTIVE COMMITTEE.—Under statutes regulating primary elections, the executive committee had no right to amend rules after the primary and make amendments applicable to election already held.

16. ELECTIONS-PRIMARY ELECTION CONTEST; DELEGATION OF HEARING OF TESTIMONY TO SUBCOMMITTEE PREJUDICIAL ERROR.-The action of the executive committee hearing primary election contest in referring the matter of challenged votes to a subcommittee held, on certiorari, prejudicial error, where in one case the committee failed to adopt the only reasonable inference, and where in a number of cases the evidence was susceptible of an inference contrary to that drawn by the committee.

17. ELECTIONS-PRIMARY ELECTION CONTEST; EXECUTIVE COMMITTEE'S REFUSAL TO CONSIDER MUTILATED BALLOTS.-Where inclusion of alleged mutilated ballots might change the result of a primary election, and where evidence was conflicting as to whether ballots were so scratched as to destroy their secrecy and as to a candidate for which they were cast, refusal of executive committee, hearing election contest, to consider such ballots, held error.

18. ELECTIONS-DECISION OF ELECTION MANAGERS AS TO MUTILATION OF PRIMARY BALLOTS.—Decision of managers of election as to mutilation of primary ballots is not conclusive.

19. ELECTIONS-SECRECY OF PRIMARY BALLOT NOT DESTROYED BY MARKS SCRATCHED THROUGH BALLOTS.-The fact that a ballot was scratched, either with pencil or pen, so that the marks show through on the opposite side, does not necessarily warrant the inference that the secrecy thereof was destroyed, because it may have been folded so that no one could tell, without unfolding it, whose names had been scratched.

20. ELECTIONS-PRIMARY ELECTION Contest; DISPOSITION ON CERTIORARI. -On certiorari to review action of executive committee in hearing primary election contest, where error appears, but Court cannot determine from the record which of the candidates received the majority of votes that were or ought to have been counted, it will not declare the result, and will merely set aside the action of the committee.

IN THE ORIGINAL JURISDICTION. Certiorari by Tristram T. Hyde and others and by John I. Boykin and others to review action of W. Turner Logan and others, Democratic Executive Committee. Action of committee set aside.

Messrs. Alfred Huger, Walter B. Wilbur and L. D. Jennings, for petitioners, submit: The Court has power to act