Aakjer v. Spagnoli

• Decision Date: 12 January 1987
• Docket Number: No. 0855,0855
• Citation: 352 S.E.2d 503,291 S.C. 165
• Court: South Carolina Court of Appeals
• Parties: Steven George AAKJER, Jr., Appellant, v. Steven SPAGNOLI, Respondent.

Page 503

352 S.E.2d 503

291 S.C. 165

Steven George AAKJER, Jr., Appellant, v. Steven SPAGNOLI, Respondent.

No. 0855.

Court of Appeals of South Carolina.

Jan. 12, 1987.

James P. Stevens, Jr., of Stevens, Stevens, Thomas, Hearn & Hearn, of Loris, for appellant.

Thomas C. Brittain and Cynthia Graham Howe, of Van Osdell, Lester, Stewart, McCutchen & Brittain, of Myrtle Beach, for respondent.

SANDERS, Chief Judge:

Appellant Steven Aakjer brought this action against respondent Steven Spagnoli for damages arising out of an automobile accident. The jury returned a verdict for Mr. Spagnoli. Mr. Aakjer appeals. We affirm.

The accident out of which this lawsuit arose occurred at approximately 10 p.m. on April 16, 1983 in Horry County. Mr. Aakjer was traveling east on Highway 501 toward Myrtle Beach when his car ran out of gas. He got out of the car and was pushing it forward when Mr. Spagnoli's car struck him from behind.

The highway patrolman who investigated the accident testified that Mr. Aakjer told him that he was trying to push his car to a convenience store three or four hundred feet down the road. Mr. Aakjer testified that he was steering his car to the right trying to get it off the road as quickly as possible. He estimated that forty-five seconds elapsed between the time he started pushing and when he was struck from behind. His car was still in the right hand lane of travel when it was hit.

Mr. Spagnoli testified that, although his view was unobstructed and he could see about 500 feet in front of him, he did not see Mr. Aakjer's car until just before he hit it and the accident happened in "a flash second."

One of the more hotly contested issues at trial was whether the emergency flashers on Mr. Aakjer's car were illuminated. Mr. Aakjer testified that the flashers were on. Mr. Spagnoli testified that they were not.

The highway patrolman testified that he did not recall seeing any flashing lights on Mr. Aakjer's car after the accident.

Keith Munger, a witness for Mr. Aakjer, testified that on the night of April 16, 1983 he saw a car in the eastbound lane of Highway 501 with its flashers on and he saw several cars pass that car without hitting it. He further testified that he saw the flashers when he was a mile from the impact site.

Eugene Fowler, who towed Mr. Aakjer's car into a service station that night, testified that all four of the emergency flashers on the car were blinking when he got to the scene.

David Keys, a witness for Mr. Spagnoli, testified that, on April 16, 1983, between 10 and 11 p.m., he "just about ran into the back of a man that was pushing his car down the middle of 501." He further testified that "[t]here was no lights anywhere on that vehicle."

Dr. Roland Barrett, a mechanical engineer, testified as an expert in accident reconstruction for Mr. Aakjer. He examined the lights from Mr. Aakjer's car and testified that "either the flashers, turn signal, or brake light was on at the moment of impact."

Other relevant facts will be discussed as necessary throughout this opinion.

I

This lawsuit was initially tried in March 1984, resulting in a verdict for Mr. Spagnoli. The trial judge, "sitting as the thirteenth juror," granted Mr. Aakjer's motion for a new trial.

Prior to the start of the second trial, Mr. Aakjer made a motion that the trial judge prohibit testimony regarding injuries sustained by the passengers in Mr. Spagnoli's car, other pending or anticipated lawsuits arising from the accident and the fact that the case had been previously tried with a verdict for Mr. Spagnoli. The trial judge ruled that he would instruct the attorneys and witnesses not to discuss the previous trial but that he would allow the use of prior testimony for impeachment purposes. He did not definitively rule one way or the other on the first two aspects of Mr. Aakjer's motion.

Mr. Aakjer argues on appeal that his motions for a mistrial and a new trial should have been granted because "repeated references to the prior trial diverted the jury's attention from the trial of this lawsuit."

In fact, the record reveals that the "repeated references" complained of by Mr. Aakjer number, at most, only three. During the cross-examination of a medical doctor and of the engineer offered by Mr. Aakjer, counsel for Mr. Spagnoli asked about prior testimony. It is not at all clear that he was speaking of testimony given in an earlier trial. The jury could just as easily have understood him to have been referring to prior deposition testimony given by these two witnesses.

During the cross-examination of Mr. Keys by counsel for Mr. Aakjer, the witness answered a question with the gratuitous comment "we straightened that out on the last case." The trial judge immediately admonished Mr. Keys to "just answer the question."

The cross-examination of a witness to test his credibility is largely within the discretion of the trial judge. McMillan v. Ridges, 229 S.C. 76, 91 S.E.2d 883 (1956). Every witness under cross-examination may be asked whether he has made any former statement relative to the subject matter of the action and inconsistent with his present testimony. Elliott v. Black River Electric Cooperative, 233 S.C. 233, 104 S.E.2d 357 (1958).

In our opinion, the trial judge did not abuse his discretion in allowing the cross-examination by counsel for Mr. Spagnoli of the medical doctor and engineer.

Furthermore, the references to the prior trial were so vague that Mr. Aakjer could not have been prejudiced. The jury could hardly have guessed that the entire lawsuit had been tried before, much less that the outcome had been unfavorable to Mr. Aakjer. See JKT Company, Inc. v. Hardwick, 274 S.C. 413, 419, 265 S.E.2d 510, 513 (1980), appeal after remand, 284 S.C. 10, 325 S.E.2d 329 (Ct.App.1984) ("An error not shown to be prejudicial does not constitute grounds for reversal.").

II

Mr. Aakjer next argues that his motions for a mistrial and a new trial should have been granted because of references made by witnesses and counsel to injuries sustained by the passengers in Mr. Spagnoli's car.

Mr. Aakjer sought damages for depression, mental anguish and mental anxiety allegedly resulting from the physical injuries which he suffered in the accident. Counsel for Mr. Spagnoli cross-examined Mr. Aakjer about his knowledge of the injuries suffered by the passengers in Mr. Spagnoli's car. Counsel for Mr. Aakjer objected to this line of questioning on the ground of relevancy. The trial judge allowed the questioning for the limited purpose of showing Mr. Aakjer's mental state following the accident.

On direct examination and over the objection of Mr. Aajker, Mr. Spagnoli gave an account of the injuries suffered by the passengers in his car.

In his closing argument, counsel for Mr. Aakjer also referred to the fact that some of the passengers in Mr. Spagnoli's car could not walk after the accident, comparing their injuries to the injuries suffered by Mr. Aakjer. The trial judge immediately called counsel to the bench and warned him to make no further references to the other injuries.

On appeal, Mr. Aakjer contends that the references to the injuries sustained by the passengers were irrelevant and served to inflame the jury and improperly divert their attention from the lawsuit at hand. We are unpersuaded by this argument.

The determination of the relevancy of evidence is largely within the discretion of the trial judge. Crowley v. Spivey, 285 S.C. 397, 329 S.E.2d 774 (Ct.App.1985). "Evidence which tends to make more or less probable some matter in issue and to bear directly or indirectly thereon is relevant." Associate Management, Inc. v. E.D. Sauls Construction Co., 279 S.C. 219, 221, 305 S.E.2d 236, 237 (1983).

We find no abuse of discretion under the circumstances. Mr. Aakjer admitted that he felt concern for the other people hurt in the accident. Thus, his knowledge of their injuries was at least of some relevancy to the issue of whether his mental anguish was caused by his injuries, as he alleged, or by the injuries of the other people involved in the accident.

III

During cross-examination of Mr. Aakjer, Mr. Spagnoli's attorney made at least one reference to a page in the transcript of the earlier trial. After the close of testimony that day, one juror asked the bailiff "what the book was they keep referring to." The trial judge overheard the question and asked the juror to repeat it. The juror did so, further noting that "[i]t's like it's already been played before, the whole thing."

The following morning, outside of the presence of the other jury members, the trial judge asked the juror if he had discussed the matter with the other jurors. The juror replied, "I was just asking about that just when I was called out here. I said, you know, seems like there's been some kind of book or something." The trial judge then excused the juror from the case and asked the other jurors if anyone had tried to discuss the case with any of them and whether any of them had any independent knowledge which would prevent them from giving both sides a fair trial. No juror answered in the affirmative. Mr. Aakjer moved for a mistrial. The trial judge denied the motion. The trial proceeded with an alternate juror taking the place of the juror who had been excused.

Mr. Aakjer contends that the events just related amounted to juror misconduct which tainted the entire jury and that a mistrial should have been granted.

"The question of whether or not a motion for a mistrial should be granted rests in the trial judge's sound discretion, and his ruling on such motion will not be disturbed unless abuse of discretion is shown." Tucker v. Reynolds, 268 S.C. 330, 334, 233 S.E.2d 402, 404 (1977). On a motion for mistrial, the moving party has the burden to show not only error but resulting prejudice. Keller v. Pearce-Young-Angel Co., 253 S.C. 395, 171 S.E.2d 352 (1969).

Here, there is no showing that Mr. Aakjer was prejudiced by the...