Daniel v. Tower Trucking Co.

• Decision Date: 25 October 1944
• Docket Number: 15682.
• Citation: 32 S.E.2d 5,205 S.C. 333
• Parties: DANIEL v. TOWER TRUCKING CO., Inc., et al.
• Court: South Carolina Supreme Court

32 S.E.2d 5

205 S.C. 333

DANIEL v. TOWER TRUCKING CO., Inc., et al.

No. 15682.

Supreme Court of South Carolina

October 25, 1944

Wolfe & Fort and R. A. Dobson, all of Gaffney, for appellant.

Hall & Saint-Amand, of Gaffney, and Osborne, Butler &amp Moore, of Spartanburg, for respondent.

PER CURIAM.

This case comes to this Court by way of appeal from the Court of Common Pleas of Cherokee County upon the following facts:

This action was commenced in the Court of Common Pleas for Cherokee County by the service of a summons and complaint on January 12, 1943, and was instituted by the plaintiff, as administrator of the estate of Mrs. Mitchell Goforth Daniel deceased, for the recovery of actual damages in the sum of $25,000 by reason of the alleged wrongful death of Mrs Daniel, the action being brought under Sections 411 to 413 inclusive, Code 1942, for the benefit of the children of plaintiff's intestate.The defendants are Tower Trucking Company, Inc., a corporation, whose alleged negligence in the operation of one of its trucks was alleged by plaintiff to have proximately resulted in his intestate's death, as appears from the amended complaint, and American Fidelity & Casualty Company, an insurance corporation, which had filed a bond or liability insurance policy covering the defendantTower Trucking Company, Inc., under the provisions of Section 8511,Code 1942.

In due course, the defendants answered the complaint denying the material allegations and pleading contributory negligence, imputed negligence and incurred or assumed risk, as appears from the amended answer.

Counsel for the plaintiff in due time moved to strike out the fourth defense of the answer, and by stipulation of counsel for all parties the answer was amended in certain particulars, with the agreement that the plaintiff's motion to strike the fourth defense of the original answer should apply equally to the fourth defense in the amended answer, and that plaintiff's rights under the motion should be preserved and the motion disposed of prior to trial.This motion to strike the fourth defense was made upon the grounds "that said allegation is irrelevant and the matter therein alleged has no connection with, or effect upon the cause of action alleged in the complaint."And this motion was heard by the Presiding Judge prior to the trial and was refused.

The complaint was amended, by stipulation of counsel, pursuant to a previous order striking out certain portions thereof, in particulars not here important.

The case duly came on for trial upon the issues made by the pleadings, as amended, before Hon. L. D. Lide, Judge of the Twelfth Circuit, regularly presiding in the Seventh Circuit, and a jury, at the November, 1943, term of the Court of Common Pleas for Cherokee County.The plaintiff offered evidence, following which the defendants offered evidence, and at the conclusion of same (except that of the witness DeLane Ellis, which was subsequently presented)defendants moved for a directed verdict, which motion was refused.This motion was renewed and likewise refused following the taking of the testimony of the witness DeLane Ellis.

The trial was commenced on Tuesday morning, November 2, 1943, and the testimony of the plaintiff's witness, Charles Ellis, was taken and completed on the afternoon of that day, and other testimony for the plaintiff was taken on that day.The remainder of the testimony for the plaintiff, and the testimony for the defendants, was taken on Wednesday, November 3, 1943; and counsel for the respective parties announced that their testimony was concluded.The case was reached for argument to the jury at about 5 o'clock that afternoon, and one argument was then delivered in behalf of the plaintiff and one in behalf of the defendants.

At the opening of the Court on Thursday morning, November 4, 1943, counsel for the defendant moved the Court for leave to offer as a witness DeLane Ellis"in connection with Charles Ellis' testimony;" and the Court permitted him to be sworn, and to testify (over the objections of plaintiff's counsel) to the extent, and for the reasons, shown by the record.After the testimony of DeLane Ellis had been taken plaintiff's counsel moved the Court to be allowed to place Charles Ellis back on the stand to reply to the testimony of the witness DeLane Ellis, and an additional witness to "corroborate the testimony of Charles Ellis," but the motion was refused by the trial Judge for the reasons shown by the record.

Thereafter the second argument in behalf of the plaintiff was made to the jury, followed by the second argument in behalf of the defendants; and then the closing argument in behalf of the plaintiff was made.

A number of requests to charge were submitted by counsel for the plaintiff and for the defendants, respectively, and upon completion of the argument of counsel to the jury, the Presiding Judge delivered his charge.The jury retired and later returned a verdict for the defendants, upon which judgment was duly entered in their favor against the plaintiff.

Due and timely notice was given by plaintiff's attorneys of intention to appeal to the Supreme Court"from the verdict on judgment to be entered, and from the ruling and charge of the Court, upon exceptions and transcript of record to be duly served."

The time having been extended for serving a proposed transcript of record and exceptions for appeal to the Supreme Court, plaintiff's counsel served the same upon defendants' counsel on January 28, 1944, and the same being unacceptable to them, they served notice of certain proposed amendments(including notice of additional sustaining grounds); and after a hearing thereon the case for appeal was settled by the order of the trial Judge dated February 18, 1944; and the case now comes before the Supreme Court for a hearing upon the exceptions of the plaintiff and the additional sustaining grounds of the defendants as hereinafter set forth.

1.The trial Judge erred, it is respectfully submitted, in refusing plaintiff's motion under provision of Section 470 of the Code, to strike out defendants' alleged "Fourth Defense," said "defense" alleging "assumed and incurred risks and dangers incident thereto" on the part of plaintiff's decedent, Mrs. Mitchell Goforth Daniel, in her action against a third-party tortfeasor, the error consisting in that the Court should have held that Mrs. Daniel was chargeable only with the exercise of "due care," and that the "defense" as alleged constituted irrelevant and prejudicial matter.

2.Error in that the trial Court committed clearly prejudicial abuse of discretion in reopening the case after both sides had rested their cases in chief, and after plaintiff's counsel had made the opening argument to the jury, and allowing defense Counsel to put on the witness stand one DeLane Ellis, whose testimony tended to repudiate the testimony of the only eyewitness sworn by plaintiff, there having been shown on the part of the defense, no inadvertence or reasonable excuse for surprise.

3.The trial Court erred in reopening the case after both sides had announced closed, and after plaintiff's counsel had made the opening argument to the jury, and allowing the defense to put up one DeLane Ellis, "in reply," when the testimony of said witness purported to stamp the testimony of plaintiff's eye-witness, Charles Ellis, as false, and in refusing to allow plaintiff to recall Charles Ellis or other corroborating witnesses by way of surrebuttal, the right of "reply" being a fundamental right and prerogative of the plaintiff, established under the Code practice in our Courts.

The first exception alleges error in the refusal of the Court to strike out the "fourth defense" of the answer, but this Court is of the opinion that the request should have been granted.This alleged defense was in addition to a general denial and that of the sole and contributory negligence and wilfulness of the driver of the automobile in which the plaintiff's intestate met death, allegedly imputable to her, and also her negligence and contributory negligence, wilfulness, etc.It appears in the answer as follows: "That, as Defendants are informed and believe, Plaintiff's intestate voluntarily places herself in the care and custody of her husband, Thomas Dixon Daniel, the driver of said automobile, and when he continued to travel at a high and excessive rate of speed, failed to reduce his speed or to stop, failed to heed the warning stop sign, failed to heed or pay any attention to the apparent dangers of proceeding in the manner in which he was doing, that Plaintiff's intestate knew or should have known and appreciated or should have appreciated the dangers involved, and thereby voluntarily exposed herself to such dangers and assumed and incurred the risks and dangers incident thereto, and Plaintiff, therefore, cannot recover."

In light of the other defenses pleaded this adds nothing, except that the decedent "assumed and incurred the risks and dangers" of riding with her husband.Whatever defendants may have proved under these unusual allegations was relevant under the allegations of the other defenses concerning the driver's negligence (and wilfulness) and the alleged imputation thereof to plaintiff's intestate and the allegations of her own negligence and contributory negligence and wilfulness.Joint or common enterprise was elsewhere pleaded by the defendants in their answer and the law thereabout was charged by the Court.

Defendants rely in their brief for the propriety of their plea of assumption of risk upon the decision of this Court in Nettles v. Your Ice Co., 191 S.C. 429, 4 S.E.2d 797, in which that expression does occur.However, quotation of the whole of that paragraph of the opinion...