Brown v. Orndorff

• Decision Date: 05 May 1992
• Docket Number: No. 1860,1860
• Citation: 422 S.E.2d 151,309 S.C. 320
• Court: South Carolina Court of Appeals
• Parties: Larry D. BROWN, Appellant, v. Lois J. ORNDORFF, Respondent. Catherine Ann ORNDORFF, Respondent, v. Larry D. BROWN, Appellant, and Lois J. Orndorff, Respondent. . Heard

Page 151

422 S.E.2d 151

309 S.C. 320

Larry D. BROWN, Appellant, v. Lois J. ORNDORFF, Respondent.

Catherine Ann ORNDORFF, Respondent, v. Larry D. BROWN, Appellant, and Lois J. Orndorff, Respondent.

No. 1860.

Court of Appeals of South Carolina.

Heard May 5, 1992.

Decided Aug. 10, 1992.

Lowell W. Ross and Karen F. Ballenger, both of Ross, Stoudemire & Awde, Seneca, for appellant.

Frank S. Holleman, III, of Wyche, Burgess, Freeman & Parham, Douglas F. Patrick, of Foster, Covington & Patrick, and Donald L. Van Riper, Greenville, for respondents.

SHAW, Judge:

Appellant, Larry D. Brown, sued respondent Lois J. Orndorff, for damages resulting from an automobile accident. Respondent Catherine Ann Orndorff, a passenger in Lois Orndorff's car, sued Brown and Lois Orndorff for damages arising out of the accident. Lois Orndorff counterclaimed against Brown for damages. The jury returned a verdict for both Lois and Catherine Orndorff against Brown. Brown appeals. We affirm.

Brown raises four issues on appeal. He argues the trial judge erred in allowing certain hearsay testimony, in allowing evidence on his driving record, in failing to grant his motions for directed verdict, j.n.o.v. and new trial, and in charging the jury on the doctrine of sudden emergency. We disagree.

The record reveals the following. On May 9, 1989, Brown was driving his vehicle west on Highway 124 and Lois Orndorff was driving her vehicle east on Highway 124 when the two cars collided head-on. It had been raining very hard that day and the roads were wet. The physical evidence indicates the cars did not hit directly head-on, but hit at a 30 degree angle. Following the initial impact, Brown's car proceeded to go off the road to the right while Orndorff's car rotated, its right side coming in contact with the left side of Brown's car. Orndorff's car came to rest in a westerly direction in Brown's lane of travel while Brown's car was off the road angled in a north-west direction. The majority of the debris from the collision was found in Brown's lane of travel. Brown's expert testified the physical evidence showed the impact occurred in Brown's lane of travel.

Brown testified at trial that Orndorff crossed the center line and came over into his lane of travel and that he turned the wheel to the right to avoid her but that the cars still collided. Brown's wife, who was a passenger in his automobile, testified she was bending down to the floor for her purse when her husband swerved to the right. When she looked up to see why he was swerving, she saw Orndorff's car coming on their side of the road. Orndorff testified that she had started up a hill when, all of a sudden, she saw a blue object "whirling" or "spinning" and crossing over to her side of the road. She attempted to swerve her vehicle out of the way, but was unsuccessful.

Brown first contends the trial judge erred in admitting the testimony of witness Helen Taylor relating a statement of an unidentified third person at the scene of the accident. The record reveals that Helen Taylor and her husband arrived on the scene subsequent to the collision and began rendering aid to the victims. During this time, she noticed a man with long hair standing on the passenger side of Brown's car talking to some other men. She stated she overheard this man say "Hey, man, this dude here started spinning ... and come over here and hit this woman." She indicated the unidentified individual pointed out Brown's car as the car that was spinning and hit Orndorff's car. She further testified that this same individual said he had called the ambulance.

The trial judge, held the testimony was admissible as the res gestae exception to the rule against hearsay. He found the statement was contemporaneously made with the matter at hand, that it was an instinctive and a spontaneous utterance of a witness while under the active, immediate influences of the accident and that the circumstances indicated the utterances were not the result of any reflection nor designed to make a false or self-serving statement. Brown concedes the statement was contemporaneous with the event. He argues, however, that the statement was not admissible because there was no independent evidence that the declarant actually witnessed the event.

We first note that there is no evidence in the record that Brown ever raised this argument before the trial judge and this issue therefore is not properly preserved. See Roche v. S.C. Alcoholic Beverage Control Commission, 263 S.C. 451, 211 S.E.2d 243 (1975) (the purpose of an appeal is to determine whether the trial judge erroneously acted or failed to act and where the appellant's contentions are not presented or passed on by the trial judge, such contentions will not be considered on appeal.) We further find that this statement properly falls within the res gestae exception. General principles regarding this exception are set forth in the case of Doe v. Asbury, 281 S.C. 191, 314 S.E.2d 849 (Ct.App.1984) wherein this court held as follows:

No hard and fast rule can be laid down as to the admissibility of evidence under the res gestae exception. Instead, each case must be decided on its own facts, and admissibility is largely left to the discretion of the trial judge. To qualify, a statement must be substantially contemporaneous with the litigated transaction and be the instinctive,...