China v. Parrott, 18809
| Citation | 162 S.E.2d 276,251 S.C. 329 |
| Decision Date | 09 July 1968 |
| Docket Number | No. 18809,18809 |
| Court | United States State Supreme Court of South Carolina |
| Parties | Bessie CHINA, Appellant, v. Wendell T. PARROTT, Respondent |
Richardson & James, Morris D. Mazursky, Sumter, for appellant.
Lee & Moise, Sumter, for respondent.
On December 3, 1963 at approximately 7:20 p.m., as she was walking across Guignard Drive at or near its intersection with Oakland Avenue in the City of Sumter, South Carolina, plaintiff was struck by an automobile driven by defendant. She sustained serious personal injuries and brought this action to recover her damages, alleging that her injuries resulted from the negligence and recklessness of the defendant in the operation of his automobile at the time and place. The defendant denied these allegations and interposed the defense of contributory negligence and recklessness. The trial of the case resulted in a verdict for plaintiff for actual damages in the amount of $20,000.00; but subsequently, upon motion of defendant, judgment notwithstanding the verdict was entered by the trial judge in favor of defendant upon the ground that plaintiff was barred of recovery by her own contributory negligence. Plaintiff has appealed from the judgment so entered.
Under the record and for the purposes of determining the issue in this appeal, the verdict of the jury constituted a finding that plaintiff's injuries and damage were proximately caused by defendant's negligence or recklessness in the operation of his automobile and that plaintiff was not guilty of contributory negligence so as to bar her of recovery. The basic question in this appeal is whether there was any evidence to sustain these findings of the jury. Admittedly, if the evidence was reasonably susceptible of the inferences drawn by the jury, the verdict must stand. Only where the evidence gives rise to but one inference does the question become one of law for the court.
Preliminarily however, since it involves a dispute as to the issues which were submitted to the jury, and consequently affects our review of the record, we must first dispose of an appeal by the defendant from an order settling the case on appeal. The question has arisen because portions of the stenographic notes of the trial proceedings were lost before they were transcribed by the court reporter.
The complaint alleged that plaintiff's injuries were caused by the negligent and reckless conduct of defendant and originally sought both actual and punitive damages. However, it appears that during the trial plaintiff withdrew the demand for punitive damages and asked judgment for only actual damages. Dispute arises as to the form of such withdrawal and whether it operated to withdraw the issue of defendant's recklessness from the case. Of course, the presence or absence of an issue as to recklessness on the part of defendant would materially affect the degree of contributory negligence necessary to bar plaintiff of recovery. Plaintiff says that the demand for punitive damages was withdrawn without withdrawing the issue of defendant's recklessness and proposed that the record on appeal so show. The defendant objected and the question of what transpired in connection with plaintiff's withdrawal of the demand for punitive damages was submitted to the trial judge to determine in order to settle the case for appeal.
In considering the matter the trial judge had before him his previous order granting judgment notwithstanding the verdict, in which he concluded that the verdict of the jury 'apparently exonerates the defendant from anything more than simple negligence'; affidavits of plaintiff's counsel; and an affidavit of the court reporter. The affidavits were to the effect that according to the affiants' recollections plaintiff had withdrawn her demand for punitive damages without withdrawing the issue of defendant's recklessness, and that such issue was submitted to the jury under appropriate instructions by the court. The trial judge had no independent recollection of what transpired and, based largely upon the foregoing affidavits, found that the facts were as plaintiff contended. Accordingly, his order made the following factual statement a part of the record on appeal:
Plaintiff's counsel, in the course of his argument to the jury, announced that plaintiff withdrew her demand for punitive damages without withdrawing the issue of defendant's recklessness and wilfulness. The jury was charged by the presiding judge that they would not consider a verdict of punitive damages against defendant since plaintiff had withdrawn her demand for punitive damages. The trial judge charged the jury that they would consider the issue of recklessness and wilfulness on the part of the defendant, along with the issue of negligence, as alleged in the complaint.
The defendant objects to the fact that the trial judge considered the affidavits of plaintiff's counsel and the court reporter in determining what transpired. The trial of this case was held in January 1965 and the affidavits were signed in April and May of 1967, over two years after the trial. The defendant contends that the long lapse of time since the trial should have rendered the affidavits of little probative value, especially in view of the inability of the trial judge and defendant's counsel to recall what took place and the statement by the trial judge in his previous order that the verdict of the jury apparently exonerated the defendant of the charge of recklessness. We find no error in the action taken by the trial judge.
Where there is a disagreement as to what the record on appeal should contain, the duty and responsibility of settling the question rests upon the trial judge. Section 7--406, 1962 Code of Laws; Rule 4, Section 7, Rules of the Supreme Court; South Carolina State Highway Department v. Meredith, 241 S.C. 306, 128 S.E.2d 179; Southern Pine...
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State v. Ladson
...before us. South Carolina jurisprudence recognizes the trial court's authority to set the record for appeal. In China v. Parrott, 251 S.C. 329, 334, 162 S.E.2d 276, 278 (1968), our supreme court held that where a portion of the court reporter's notes were lost, the trial judge properly cons......
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...In other words, we looked at the evidence in the light most favorable to the Mays, the judgment winners. See China v. Parrott, 251 S.C. 329, 162 S.E.2d 276 (1968); 5 Am.Jur.2d Appeal and Error § 885 at 322 (1962). As we scrutinized the record, we considered only the evidence favorable to th......
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...is to permit the court to piece together the transcript of a prior hearing and determine what transpired. China v. Parrott, 162 S.E.2d 276, 278 (S.C. 1968). But “the inability to prepare a complete transcript, in and of itself, does not necessarily present a sufficient ground for reversal.”......