Broom v. Southeastern Highway Contracting Co., Inc., No. 0850

• Court: Court of Appeals of South Carolina
• Writing for the Court: GOOLSBY
• Citation: 352 S.E.2d 302,291 S.C. 93
• Parties: Daisy BROOM, Guardian ad Litem for Larry Broom, Respondent, v. SOUTHEASTERN HIGHWAY CONTRACTING COMPANY, INC., Appellant. . Heard
• Decision Date: 15 October 1986
• Docket Number: No. 0850

Page 302

352 S.E.2d 302 291 S.C. 93 Daisy BROOM, Guardian ad Litem for Larry Broom, Respondent,
v.
SOUTHEASTERN HIGHWAY CONTRACTING COMPANY, INC., Appellant. No. 0850. Court of Appeals of South Carolina. Heard Oct. 15, 1986.
Decided Dec. 29, 1986.

Page 303

[291 S.C. 95] Robert E. Salane, of Barnes, Alford, Stork & Johnson, Columbia, for appellant.

J. Marvin Mullis, Jr., and Carl N. Lundberg, of J. Marvin Mullis, Jr., P.A., Columbia, for respondent.

GOOLSBY, Judge:

This personal injury action arises out of an accident occurring on April 24, 1978, when Larry Broom was struck by a motor grader driven by an employee of Southeastern Highway Contracting Company, Inc. The questions on appeal [291 S.C. 96] relate to the appointment of the guardian ad litem, the defenses of contributory negligence and recklessness and of assumption of risk, the doctrine of last clear chance, the admissibility

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of certain testimony given by an expert witness, the giving of a requested jury instruction, and the amount of the verdict.

Ballenger Construction Company subcontracted with Southeastern to grade an unopened portion of Interstate-77 north of Columbia. Broom, a mentally retarded former bagboy and dishwasher, worked for Ballenger as a sweeper. On April 24, 1978, his first day at work, Broom suffered serious injuries after stepping in front of and being struck by a motor grader driven along a haul road by a Southeastern employee.

Nearly six years later, on April 2, 1984, Broom's mother, Daisy Broom, filed a petition to be appointed Broom's guardian ad litem. Suit commenced the following day with the service upon Southeastern of a summons and complaint. The complaint alleged Broom's damages, which resulted from his personal injuries, were proximately caused by the negligent, grossly negligent, reckless, willful, and wanton acts and omissions of Southeastern's agent, Charles Edward McGill, in his operation of the motor grader.

Southeastern answered the complaint on January 14, 1985, denying its material allegations. Its answer also set forth several affirmative defenses, among them contributory negligence and recklessness, assumption of risk, and the statute of limitations.

On January 25, 1985, the Clerk of Court signed an order granting Daisy Broom's petition to be appointed her son's guardian ad litem.

At the commencement of trial on January 28, 1985, Southeastern moved to dismiss the action, alleging Daisy Broom lacked capacity to sue as Broom's guardian ad litem because the clerk entered the order appointing her guardian ad litem without requiring her to make any showing of Broom's incompetency. The trial court denied the motion and the case proceeded to trial.

During the trial, the trial court denied Southeastern's motions for nonsuit and directed verdict. Thereafter, the jury returned a verdict against Southeastern and awarded [291 S.C. 97] $500,000 in actual damages for Broom's personal injuries. Following the trial, the trial court denied Southeastern's motions for judgment notwithstanding the verdict, new trial, and new trial nisi. Southeastern appealed. We affirm.

I.

Southeastern first contends that the trial court committed reversible error in denying its motion to dismiss made on the ground that the Clerk of Court "improperly and improvidently granted" Daisy Broom's petition to be appointed her son's guardian ad litem.

The sole basis for Southeastern's contention that the clerk's order was "improperly and improvidently granted" was its assertion that Daisy Broom did not make any showing of Broom's mental incompetency.

Southeastern, however, failed to include in the transcript of record either the proceedings upon its motion to dismiss or the trial court's order denying the motion. We know nothing, then, about the showing, if any, made by Southeastern in support of its motion or of the reasons given by the trial court in denying it. The trial court could have denied Southeastern's motion for any number of reasons, one of them being, of course, that sufficient proof of Broom's incompetency supported the guardian ad litem's appointment. Cf. Thompson v. Moore, 227 S.C. 417, 88 S.E.2d 354 (1955) (wherein the Supreme Court affirmed an order that vacated, on motion of the defendant, a prior order of appointment of a guardian ad litem for an allegedly mentally incompetent plaintiff because the proof was not reasonably sufficient to establish the fact of mental incompetency).

As the appellant, Southeastern had the burden of furnishing to us a sufficient record on which we can base our decision. Germain v. Nichol, 278 S.C. 508, 299 S.E.2d 335 (1983). Because Southeastern did not do this, we must assume the regularity of the proceedings below and the correctness of the ruling appealed from. 5

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Am.Jur.2d Appeal and Error § 704 at 151 (1962). We therefore affirm the trial court's order denying Southeastern's motion to dismiss.

[291 S.C. 98] II.

Southeastern next contends that the trial court erred in failing to grant its motions for nonsuit, directed verdict, and judgment notwithstanding the verdict.

A.

Southeastern argues that its motion for judgment notwithstanding the verdict should have been granted because Broom conceded he was guilty of simple negligence and the jury returned a verdict in his favor for actual damages only, thereby exonerating it of any recklessness. Southeastern relies on Taylor v. Bryant, 274 S.C. 509, 265 S.E.2d 514 (1980), wherein the Supreme Court, citing Field v. Gregory, 230 S.C. 39, 94 S.E.2d 15 (1956), Utsey v. Williams, 229 S.C. 176, 92 S.E.2d 159 (1956), Mozingo v. Atlantic Coast Line R., 220 S.C. 323, 67 S.E.2d 516 (1951), and Taylor v. Atlantic Coast Line R., 217 S.C. 435, 60 S.E.2d 889 (1950), held that the trial judge should have granted the defendants' motion for judgment notwithstanding the verdict where the plaintiff was contributorily negligent as a matter of law and the jury found he was entitled to recover only actual damages because the effect of the jury's verdict was to absolve the defendants from the charges of recklessness and willfulness.

We believe, however, that Jumper v. Goodwin, 239 S.C. 508, 123 S.E.2d 857 (1962), dictates the result here, particularly since the facts in Taylor v. Bryant, supra, are completely different from the facts of this case. In Jumper, the Supreme Court explained that a court is not justified in inferring that the jury eliminated willfulness by finding only actual damages where the charge of the trial judge leaves the matter of punitive damages to the jury's discretion and there is no exception to his doing so.

In South Carolina, unlike most jurisdictions [22 Am.Jur.2d Damages § 240 n. 15 at 328 (1965) ], the award of punitive damages does not rest in the discretion of the jury but is recoverable as a matter of right. Id. n. 20; see Sample v. Gulf Refining Co., 183 S.C. 399, 410, 191 S.E. 209, 214 (1937) ("[W]hen under proper allegations a plaintiff proves a willful, wanton, reckless, or malicious violation of his rights, it is not only the right but the duty of the jury to award punitive damages.").

[291 S.C. 99] Even so, the jury in this instance was not instructed that it was required to award punitive damages if it found the defendant guilty of conduct that would support an award of punitive damages. Indeed, the trial judge, after instructing the jury that punitive damages "can be awarded only when the conduct of the defendant has been something more than merely negligent" and that "willfulness, wantonness, and recklessness will support the right to recover both actual and punitive damages," instructed the jury that it "could find and award actual damages without awarding punitive damages, depending upon [its] view of the evidence." The effect of the trial judge's charge regarding punitive damages was to leave their award completely to the jury's discretion.

Since Southeastern failed to except to the trial judge's charge regarding punitive damages on this ground, we hold that the jury's failure to award Broom punitive damages did not eliminate recklessness on Southeastern's part as a matter of law. Thus, the trial court was not required to grant Southeastern's motion for judgment notwithstanding the verdict.

B.

Southeastern also argues that the trial court should have granted its motions for nonsuit, directed verdict, and judgment notwithstanding the verdict because the only reasonable inference to be drawn from the evidence is that, by stepping into the path of Southeastern's motor grader, Broom was contributorily negligent or reckless as a matter of law in causing his own injuries.

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The question of contributory negligence or recklessness is ordinarily a question of fact for the jury. Ballou v. Sigma Nu General Fraternity, 291 S.C. 140, 352 S.E.2d 488 (S.C.Ct.App.1986). The question rarely becomes a question of law for the court to determine. Id. In determining whether a plaintiff was guilty of contributory negligence or recklessness as a matter of law, the whole evidence must be viewed in the light most favorable to the plaintiff. Griffin v. Griffin, 282 S.C. 288, 318 S.E.2d 24 (Ct.App.1984).

The record does contain, as Southeastern points out, evidence that the motor grader was being driven on the haul road, which was where it was supposed to travel, that Broom [291 S.C. 100] had an unobstructed view of the oncoming motor grader, that the motor grader made a loud noise, and that Broom, according to his deposition, saw the motor grader before he stepped onto the haul road and watched it as he crossed the haul road.

But the record also contains evidence that McGill, the driver of Southeastern's motor grader, drove the motor grader into a congested area where he saw people gathered around a lunch wagon, that McGill drove the motor grader while standing up, which made braking more difficult, that McGill kept the hand throttle locked down at...