Opinion
18133
December 9, 1963.
Messrs. Donald V. Richardson, III, of Whaley McCutchen, of Columbia, and Stuckey Stuckey and Jennings Jennings, of Bishopville, for Appellant, cite: As to the South Carolina Uninsured Motorist Law not providing for an exclusion allowing an automobile liability insurer to deny uninsured motorist coverage to a guest occupying a motor vehicle covered by its Policy: 370 P.2d 867; 79 A.L.R.2d 1252; 7 Appelman Insurance Law, Sec. 4331; 5A Am. Jur., Automobile Insurance, Sec. 82.5; 191 F. Supp. 852; aff. 316 F.2d 716; 123 S.E.2d 401, 203 Va. 282; 125 S.E.2d 840, 203 Va. 600; 131 S.E.2d 491; 260 F.2d 275; 211 F.2d 732; 259 F.2d 339; 231 S.C. 535, 99 S.E.2d 414; 135 S.C. 89, 133 S.E. 215, 45 A.L.R. 1172; 212 F. Supp. 349; 316 F.2d 770.
Messrs. Turner, Padget Graham, of Columbia, for Respondent, cite: As to the appeal should be dismissed by reason of the appellant's failure to except to the trial Judge's failure to rule upon the issue presented to the lower court: 212 S.C. 48, 48 S.E.2d 322; 198 S.C. 280, 17 S.E.2d 698; 115 S.C. 469, 106 S.E. 470; Whaley on Trial and Appellate Practice 246; 20 S.C. 582; 232 S.C. 161, 101 S.E.2d 486. As to the appeal should be dismissed because Appellant's exceptions fail to meet the requirements of Supreme Court Rule 4, Section 6, and Rule 8, Section 7: 150 S.C. 414, 148 S.E. 227; 59 S.C. 1, 37 S.E. 20; 235 S.C. 141, 113 S.E.2d 756; 235 S.C. 201, 110 S.E.2d 852; (S.C.) 131 S.E.2d 692. As to the appeal should be dismissed because the question framed by Appellant does not relate to the exceptions but instead attempts to present a new theory for this Court's determination: 123 S.C. 399, 115 S.E. 764; 231 S.C. 301, 98 S.E.2d 534. As to Appellant not falling within the statutory definition of an insured so as to qualify for uninsured motorist coverage under Respondent's Policy: 218 S.C. 22, 61 S.E.2d 399; 203 Va. 600, 125 S.E.2d 840; 79 A.L.R. 1252; 191 F. Supp. 852; Vol. 47, No. 1, Va. L. Rev.; Vol. 48, No. 6, Va. L. Rev. 1197; 316 F.2d 770.
December 9, 1963.
This action was submitted to and orally argued before the Circuit Court on the pleadings, exhibits and a stipulation as to the facts and issue to be decided. The Court declined to pass upon the issue presented, and dismissed the action on a ground not properly before it and which is not properly before us. Instead of excepting to the dismissal of the action without an adjudication of the issue raised by the pleadings and stipulation, on a ground not properly before the Court, the Appellant has appealed on the merits, to which alone the sole question stated in her brief relates. We have consistently refused to decide an issue which has not been passed upon by the Court below. See Frederick v. Standard Warehouse Company, 239 S.C. 216, 122 S.E.2d 425; 3 S.C. Digest 331, Appeal and Error, 169, et seq.
Appeal dismissed without prejudice to the right of Appellant to commence her action anew if she be so advised.
MOSS, LEWIS, BUSSEY and BRAILSFORD, JJ., concur.