Anderson v. Ballenger

Decision Date01 June 1932
Docket Number13420.
Citation164 S.E. 313,166 S.C. 44
PartiesANDERSON v. BALLENGER.
CourtSouth Carolina Supreme Court

Appeal from Common Pleas Circuit Court of Greenville County; T. J Mauldin, Judge.

Action by E. M. Anderson against C. P. Ballenger, doing business as the Ballenger Paving Company. Judgment for plaintiff, and defendant appeals, plaintiff's widow, Minnie Lee Anderson, as administratrix, being substituted as party plaintiff on plaintiff's death after taking the appeal.

Affirmed.

Mann & Plyler, of Greenville, for appellant.

Hodges & Leatherwood, of Greenville, for respondent.

CARTER J.

This action, commenced in the court of common pleas for Greenville county, August, 1930, by E. M. Anderson, as plaintiff against C. P. Ballenger, doing business as Ballenger Paving Company, was instituted for the recovery of damages for personal injuries alleged to have been sustained by the said E. M. Anderson December 25, 1929, while in the employ of the defendant, and while being transported on one of the defendant's trucks, over the Greenville and Columbia highway, to the place of work near Columbia, S. C., when he the said E. M. Anderson, was thrown from the said truck. The accident occurred, according to the allegations, on the Greenville and Columbia highway near the town of Laurens, S.C. It is alleged in the complaint that the injuries thus received by E. M. Anderson were caused by the gross negligence of the defendant in failing to provide reasonably safe means of transportation, "in failing to keep the truck in good repair, and in the manner in which the said truck was being operated." In the answer filed by the defendant, the defendant admitted that the plaintiff was in his employ and received some injuries as the result of the alleged accident, but denied the other material allegations of the complaint. The defendant also interposed the defense of contributory negligence, negligence of a fellow servant, and assumption of risk. Issues being joined, the case was tried before his honor, Judge T. J. Mauldin, and a jury, at the June, 1931 term, of said court. At the conclusion of the testimony, a motion for direction of a verdict was made by the defendant, which motion the trial judge overruled and submitted the case to the jury. The jury returned a verdict for the plaintiff for the sum of $4,000. Motion for a new trial on behalf of the defendant being refused, from the judgment entered on the verdict the defendant appealed to this court. Thereafter the plaintiff died, and, by order of the court, the widow of the plaintiff was duly substituted as party plaintiff.

In their brief counsel for appellant name five issues, as raised by the exceptions, for the court's consideration, and in considering the appeal we shall, in the main, follow the outline of issues suggested by the appellant's counsel.

Issue I.

"Was there error by the trial court in refusing to withdraw case from jury or in refusing to grant new trial where plaintiff's attorney used insurance report in plain view of jury in cross examining defendant's witness, and the witness as a result inadvertently referred to liability insurance on the truck involved in the accident?"

During the progress of the trial, when William B. Poole, superintendent for the defendant on the work in question, a witness on behalf of the defendant, was being cross-examined by counsel for the plaintiff, it appears that counsel for plaintiff handed to the witness a paper and the following occurred at that time:

" Q. Well, Sir, Mr. Poole, you sign your name William Poole? A. Yes, sir.
"Q. I will ask you if you didn't make that out? A. Yes, sir.
"Q. Now, that is dated December 27th, 1929, and that is a report of accident, is it not? A. Yes, sir, it was made in my office under my--but whether I actually made it--
"Q. And over your signature? A. Yes, sir.
"By Mr. Mann: Your honor, we object to that statement; in the first place it is not the original, no notice having been given to produce it, and second, it is irrelevant, and in the third place it is accumulative.
"The Court: I don't know what the statement purports to be.
"By Mr. Leatherwood: I will pass it up to your honor. I merely want to question him in regard to the contents of it, I don't care about introducing it in evidence.
"The Court: Go ahead and question him on the contents and use that as the basis of the cross-examination.
"By Mr. Leatherwood:
"Q. As I understand, Mr. Poole, that is over your signature? A. It is not signed.
"Q. It is made up by you? A. Yes, sir.
"Q. Now, that appears to have been on December 27th, 1929, that is only four days after the accident, is it? A. Yes, sir.
"Q. And I will ask you if at that time when it was fresh on your memory if you didn't report that eight employees of Ballenger Paving Company returning to work on truck of Ballenger Paving Company, that the right front spring broke and leaves caught in radius and steering gear, causing driver to lose control, truck ran in dirt bank, rear end swinging round and threw several employees off of truck? A. Yes, sir."

On redirect examination of this witness by counsel for defendant, the following occurred: " Q. That report blank, the one he is referring to, is report you made to your--? A. Insurance Company.

"By Mr. Mann: May it please the Court, that was not responsive to the question, his employer, the report is to his employer, Mr. Ballenger, and under those circumstances, however much I regret to, I will have to make a motion that the Court either withdraw the case from the jury or order a mistrial.

"The Court: How is that, Mr. Mann?

"By Mr. Mann: Mr. Poole made reference there to some insurance company in his testimony that was not responsive to the question and under these circumstances I will have to ask--

"The Court: I haven't heard anything in reference to any insurance. I will instruct that jury they haven't got anything to do with whether there was any insurance or not, I will strike that much of it out, if there was any reference--

"By Mr. Mann: Well, there was, your honor, and I am making a motion now, and if you want to refresh your memory, I am making the motion that the case be withdrawn or mistrial ordered.

"The Court: I will find out what got in here, if there was any testimony got in there it got in without any objection to it.

"By Mr. Leatherwood: From his own witness and in response to his own question.

"The Court: Let's see what the record reveals.

"By Mr. Mann: I asked if it was not a report made to his employer--

"The Court: That report is not in evidence.

"By Mr. Mann: That is true, but the witness inadvertently and not in response to my question made reference to insurance and--

"The Court: I can't withdraw the case from the jury if a mistake like that occurs. I can instruct the jury it is not a question that this court has to do with in so far as any insurance obtained or didn't obtain, that is not a question for that jury or for this Court; if there was any such testimony as that cropped out here unawares disregard it, we haven't got anything to do with it.

"By Mr. Mann: In proceeding on with it further we wish to do so, we are not waiving our rights on that motion.

"The Court: All right, you can reserve all the rights you have, but I am not going to withdraw this case from the jury, because perhaps an error got in here, I will try to correct it and I have done and will do further, if you will show me how I can do any further.

"By Mr. Mann: The decisions, as I understand them, that under those circumstances it is the function of the trial Court to either order a mistrial or withdraw the case from the jury.

"The Court: If you put a witness on the stand and he involves something that is not relevant the Court is not responsible for it and neither is the plaintiff, but the Court does take this responsibility in saying that if any such testimony, any irrelevant or any improper testimony, if it cropped out here unawares, that jury is not to consider it. I don't think it is incumbent upon the Court to order a mistrial.

"By Mr. Mann: If your honor wants to refresh yourself as to what he said I will be glad for the stenographer--

"The Court: I am perfectly satisfied, Mr. Mann.

"By Mr. Mann: Q. Mr. Poole, you report these accidents, do you not, to Mr. Ballenger, your employer? A. Yes, sir.

"Q. You, of course, advised him of this accident as soon as you could? A. Yes, sir.

"Q. And I believe it was after the matter that Mr. Leatherwood asked you about and it was the blank he held in his hand that you referred to? A. Yes, sir.

"I will ask that Mr. Leatherwood preserve that blank, your honor."

In the trial of cases of the nature of the case at bar it is, of course, improper for the plaintiff to offer evidence to the effect that the defendant was insured against damages in such cases, but under the facts of this case we fail to see in what way the trial judge committed error. The questions asked the defendant's witness, Mr. Poole, above quoted, on cross-examination were, in our opinion, permissible for the purpose of testing the memory of the witness and also for that purpose to use as a basis the paper in question, and, according to our view of the testimony elicited by plaintiff's counsel, there was nothing in the same to indicate that the defendant had insurance covering the damages alleged. What was brought out by this witness of the defendant regarding insurance was during the redirect examination by counsel for the defendant. The question asked this witness by defendant's counsel was "that report blank, the one he is referring to, is report you made to your--?" To which question the witness answered, "Insurance Company."

Appellant contends that the...

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