Baroody v. Anderson

• Decision Date: 03 December 1940
• Docket Number: 15173.
• Citation: 11 S.E.2d 860,195 S.C. 422
• Parties: BAROODY v. ANDERSON et al.
• Court: South Carolina Supreme Court

11 S.E.2d 860

195 S.C. 422

BAROODY v. ANDERSON et al.

No. 15173.

Supreme Court of South Carolina

December 3, 1940

Appeal from Common Pleas Court, of Marlboro County; E. H. Henderson Judge.

Action by N. B. Baroody against J. L. Anderson and others copartners trading and doing business as J. L. Anderson Company and/or Palmetto Brick Company, and others, for damages growing out of truck collision. From an order granting a motion for a new trial, the defendants appeal.

The order of Judge Henderson follows:

This is a motion by the plaintiff for a new trial of a case which was tried at the April, 1940, term of the Court of Common Pleas for Marlboro County.

The first ground of the motion is: "That the verdict of the jury is entirely against the preponderance of the testimony and could only be the result of passion or prejudice or a misunderstanding of the issues involved."

The testimony in the case presented sharp issues of fact, and was fully and ably argued to the jury by counsel for both sides. With this direct conflict in the evidence, I think that the findings of the jury as to the facts should not be disturbed. There was ample evidence to justify a verdict for either the plaintiff or the defendants. The credibility of the witnesses is a matter for the determination of the jury.

I am convinced that the verdict was not the result of passion or prejudice, as there was nothing in the course of the trial evidencing in the slightest degree any passion or prejudice.

This ground of the motion is accordingly overruled.

The other three grounds present a much more serious question. These grounds are:

"That the affidavits filed in connection with the motion for new trial conclusively show that the jury upon the scene of the accident, contrary to the instructions of the trial Judge and without the knowledge of the attorneys for the plaintiff made detailed experiments with means and instrumentalities and vehicle or vehicles without authority of the Court, which represented the taking of testimony outside of the Court and under different conditions from those which prevailed on the date of the accident.

"That the experiments shown by the attached affidavits to have been made upon the scene of the accident represented the taking of testimony outside of the Court from parties who were not sworn.

"That the experiments shown to have been made were without the consent or approval of the Court, without the knowledge of the attorney for plaintiff, and that the attorneys for plaintiff were not afforded an opportunity to make an argument to the jury based upon the experiments made at the scene of the accident."

The case involves the head-on collision of two trucks. Shortly before the accident the Baroody truck had pulled off the paved portion of the road in order to stop at a filling station, on its left-hand side of the highway.

The plaintiff contended that the driver of his truck had entered the highway, had driven over to the right-hand side, and had straightened out, when the Anderson truck, in overtaking and attempting to pass the truck of the Cheraw Brick Company, on a curve, and while on its wrong side of the highway, had negligently and wilfully run into the truck of the plaintiff.

The defendants, on the other hand, contended that their truck had gone around the curve before attempting to overtake and pass the truck of the Cheraw Brick Company, and that the driver of the Baroody truck was negligent and wilful in driving onto the highway in the face of defendants' on-coming truck.

It is apparent, then, that the speed of the Anderson truck, the moment the Baroody driver could first see it coming around the curve, and the precise location of the Baroody truck at the instant of the collision, were points of the utmost importance for the determination of the facts by the jury.

At the conclusion of the testimony, and before the arguments of counsel, upon motion of the plaintiff's attorneys, the jury was sent to view the scene of the accident, in charge of the Sheriff of Marlboro County.

The affidavits filed with me show that the jury, while at the scene, directed the sheriff to go up around the curve in his automobile and to drive back around the curve at the rate of 35 miles per hour, and that this was done by the sheriff, the jury standing at the filling station in the position the Baroody truck was supposedly in just before the collision, and observing the car approaching them from around the curve.

I think that it is clearly the law that trials must be conducted in open Court; that witnesses must be sworn and must testify here; and that no testimony may be taken outside the court room.

Section 643 of the Code authorizes the sending of the jury to view the scene. Such a view is not regarded as the taking of evidence. The purpose is to throw light upon the testimony in the record, and to enable the jury to understand the evidence already taken in the court room.

The conducting of any experiment by the jury, amounting to the taking of testimony by them outside of the court room without the knowledge or consent of counsel, and allowing counsel no opportunity to argue to the jury the inferences to be drawn from such experiment, is, of course, improper.

In the case of Ralph v. Southern Railway Company, 160 S.C. 229, 158 S.E. 409, 410, the presiding Judge, during the trial, visited and inspected the place of the collision. The Court said:

"The cardinal question for our determination is: Was it error for the presiding judge to visit and inspect the crossing, the scene of the collision, without notice to counsel, or parties, and so without their consent, and without the presence of the jury, and to decide the motion for new trial without giving counsel opportunity to argue the evidence he had obtained upon his inspection of the locus, and by predicating his refusal of the motion for new trial, in part at least, on information so obtained by his personal view of the locus? ***

"It is the boast of our Anglo-Saxon system of jurisprudence that trials in our courts of law are conducted under established rules of procedure which insure a fair and open trial, where everything is done in the open, the jurors are drawn and sworn in open court, the witnesses are sworn and testify in open court, the judge's rulings and decisions are made in open court, and everything done is made of record. Litigants are guaranteed the right to be heard by counsel or in person at every stage of the trial and upon every phase of it. So jealous is the law of the untarnished reputation of its courts for the strictest adherence to the fixed rules of legal procedure that it will annul and set aside any action of the courts taken in disregard of them. Note the meticulous care with which juries and jurors are guarded against influence from any source or direction not under the control of the court. A jury as a whole, and jurors individually, are not permitted to view the locus of a crime, or of the occurrence which gives rise to the suit except by order of the court and under the supervision of its officers."

And the Court concluded: "It would seem to be clearly established that a judgment founded upon evidence derived from a view or inspection of the premises by the judge who renders it, without notice or consent of counsel or parties, is reversible error."

That case, it is true, does not relate to the actions of...