Davis v. Tripp

• Decision Date: 06 December 1999
• Docket Number: No. 3086.,3086.
• Parties: Larry E. DAVIS and Joanne Davis, Plaintiffs, of whom Larry E. Davis is, Respondent, and Joanne Davis is, Respondent/Appellant, v. Gerald S. TRIPP, Appellant, and Norfolk Southern Railway Co., and INA Limousine Service, Inc., Appellants. James Hugh Schumpert, Zan R. Schumpert, Plaintiffs, of whom James Hugh Schumpert is, Respondent, and Zan R. Schumpert is, Respondent/Appellant, v. Gerald S. Tripp, Appellant, and Norfolk Southern Railway Co., and INA Limousine Service, Inc., Appellants. William Grosskurth, Respondent, v. Charles Duncan, Duncan Red Bird Limo, Leroy Miller, Norfolk Southern Railway Co., Appellants.
• Court: South Carolina Court of Appeals

338 S.C. 226

525 S.E.2d 528

Larry E. DAVIS and Joanne Davis, Plaintiffs, of whom Larry E. Davis is, Respondent, and Joanne Davis is, Respondent/Appellant, v. Gerald S. TRIPP, Appellant, and Norfolk Southern Railway Co., and INA Limousine Service, Inc., Appellants.

James Hugh Schumpert, Zan R. Schumpert, Plaintiffs, of whom James Hugh Schumpert is, Respondent, and Zan R. Schumpert is, Respondent/Appellant, v. Gerald S. Tripp, Appellant, and Norfolk Southern Railway Co., and INA Limousine Service, Inc., Appellants.

William Grosskurth, Respondent, v. Charles Duncan, Duncan Red Bird Limo, Leroy Miller, Norfolk Southern Railway Co., Appellants.

No. 3086.

Court of Appeals of South Carolina.

Heard September 9, 1999.

Decided December 6, 1999.

David L. Moore, Jr., of Love, Thornton, Arnold & Thomason, of Greenville, for appellants INA Limousine Service, Inc., Charles Duncan, Duncan Red Bird Limo, and Leroy Miller; Daniel B. White and Keith D. Munson, both of Gibbs, Gallivan, White & Boyd, of Greenville, for appellant Norfolk Southern Railway Company; and G. Edward Welmaker, of Acker, Welmaker & Smith, of Pickens, for appellant Gerald D. Tripp.

Stephen K. Haigler, of Glenn, Haigler & Maddox, of Anderson; and Michael J. Warshauer, of Warshauer & Woodruff, of Atlanta, GA, for respondents James Hugh Schumpert, Larry E. Davis, and respondents/appellants Joanne Davis and Zan Schumpert; and Symmes W. Culbertson, of Greenville, for respondent William Grosskurth.

PER CURIAM:

This appeal involves three separate actions brought by (1) Larry E. Davis and his wife, Joanne, (2) James Hugh Schumpert and his wife, Zan, and (3) William Grosskurth, as a result of injuries sustained in an automobile accident. The three cases were consolidated at trial and for appeal. We affirm in part, reverse in part, and remand.

FACTS

On October 12, 1993, respondents Davis, Schumpert, and Grosskurth (collectively, the employees) were working for Norfolk Southern Railway Company on a run from Atlanta to Greenville. Under the law applicable to railway employees, they could work only twelve hours a day. Upon the train's arrival in Seneca, the employees had worked almost twelve hours. Consequently, Norfolk Southern contacted INA Limousine Service,¹ which was under contract with Norfolk Southern, to transport these employees to Greenville, South Carolina where they would "mark off work" and spend the night.

Leroy Miller drove the taxi that transported the employees. On the way to Greenville, the taxi collided with a pickup truck driven by Appellant Gerald Tripp at the intersection of Highway 123 and Fish Trap Road in Pickens County. Tripp, traveling on the subordinate road, had pulled first into the median, and then into the path of the oncoming taxi.

The employees brought separate actions for personal injuries they sustained in the resulting collision. Davis's wife and Schumpert's wife also commenced actions for loss of consortium. The actions were consolidated at trial, and the jury returned verdicts of $300,000 for Davis, $39,000 for Schumpert, and $13,500 for Grosskurth. The trial court sua sponte refused to submit to the jury the wives' loss of consortium claims. All of the employees, as well as the wives, appeal.² This court granted a motion for consolidation of the appeals.

ISSUES

I. Did the trial court err in failing to dismiss Grosskurth's action in light of his alleged failure to meet the applicable statute of limitations?

II. Did the trial court err by refusing to admit testimony concerning Norfolk Southern's firing of the employees because the excluded testimony was essential to the jury's proper evaluation of the employees' damages?

III. Did the trial court err in failing to charge the jury under Horton v. Greyhound Corp., 241 S.C. 430, 128 S.E.2d 776 (1962), as to the role Miller's speed played in the accident?

IV. Did the trial court err in failing to submit to the jury the wives' loss of consortium claims?

DISCUSSION

I. STATUTE OF LIMITATIONS ON GROSSKURTH'S COMPLAINT

The accident occurred on October 12, 1993. On September 13, 1996, Grosskurth timely filed a summons and complaint against Charles Duncan, d/b/a Duncan Red Bird Limo; Leroy Miller, as agent for Duncan Red Bird Limo; and Norfolk Southern Railway Company. Appellants moved for summary judgment, asserting the statutes of limitations barred Grosskurth's action, as none of them were served within three years of the date of the accident. The trial court denied the summary judgment motion. Appellants argue the trial judge erred in denying their summary judgment motion. This issue is not appealable.

The denial of a motion for summary judgment is not directly appealable because it does not finally determine anything about the case's merits. Ballenger v. Bowen, 313 S.C. 476, 443 S.E.2d 379 (1994). This is true even after a trial of the case on its merits. Raino v. Goodyear Tire & Rubber Co., 309 S.C. 255, 422 S.E.2d 98 (1992). "Issues relating to subject matter jurisdiction may be raised at any time, cannot be waived even by consent, and should be taken notice of by this court on our own motion." Wachovia Bank of South Carolina, N.A. v. Player, 334 S.C. 200, 205, 512 S.E.2d 129, 132 (Ct.App.1999) (referencing Johnson v. State, 319 S.C. 62, 64, 459 S.E.2d 840, 841 (1995)). However, a statute of limitations defense does not raise a question of subject matter jurisdiction. McLendon v. South Carolina Dep't of Highways & Pub. Transp., 313 S.C. 525, 443 S.E.2d 539 (1994). Therefore, this court cannot address the trial court's denial of Appellants' summary judgment motion as to Grosskurth.

II. TESTIMONY AS TO THE FIRING OF DAVIS, SCHUMPERT, AND GROSSKURTH

All Appellants argue the trial court erred in not allowing them to present evidence that the employees were fired after the accident, thereby refuting an inference that their particular jobs with Norfolk Southern were available to the employees during the entire time of their incapacities.

An injured party who is employed at the time of his injury, may present proof of the loss of wages between the date of occurrence of the injury and the date he can return to work as elements of damages. Moreover, if the party was employed at the time of the injury, his earnings are evidence of the value of his lost time and are admissible as evidence of that value. 22 Am.Jur.2d Damages § 156 (1988).

The Appellants proffered testimony that while en route to Greenville, the employees bought and consumed beer. After a disciplinary hearing on December 20, 1993, the employees were "taken out of service" for consuming alcohol while on the job in violation of Norfolk Southern regulations. Norfolk Southern terminated the employees on December 29, 1993, retroactive to October 13, 1993. The employees were rehired on March 12, 1994, but would not have received any wages for the intervening period.

The employees moved in limine to exclude evidence that they had been fired as unduly prejudicial. They argued this discipline "does not, as a matter of law, affect the quantum of damages to which either plaintiff is entitled so long as they were physically unable to work, because of injuries sustained in the subject crash, during the period of time covered by their discipline and dismissal." The employees argued that if this evidence was allowed, they would be prevented from collecting damages for lost wages resulting from the injuries caused by the Appellants. The trial court agreed and granted the motion.

The employees' suit against Norfolk Southern is brought pursuant to the Federal Employers' Liability Act (FELA), 45 U.S.C.A. §§ 51-60 (1989 & Supp.1999). Evidentiary decisions in FELA cases are matters of federal law. Hose v. Chicago Northwestern Transp. Co., 70 F.3d 968 (8th Cir.1995) (citing Norfolk & Western Ry. Co. v. Liepelt, 444 U.S. 490, 100 S.Ct. 755, 62 L.Ed.2d 689 (1980)); see also Haselden v. Atlantic Coast Line R. Co., 214 S.C. 410, 418, 53 S.E.2d 60, 63 (1949) ("evidence and exceptions should be considered in the light of the Federal decisions interpreting [FELA]"). Under federal law, this court reviews the trial court's evidentiary and procedural rulings for an abuse of discretion. Persinger v. Norfolk & Western Ry. Co., 920 F.2d 1185 (4th Cir.1990). The same standard applies to the employees' common law suit against Tripp and the INA Appellants. See Gamble v. International Paper Realty Corp., 323 S.C. 367, 474 S.E.2d 438 (1996)

(the admission or exclusion of evidence is a matter within the sound discretion of the trial court and will not be disturbed on appeal in the absence of an abuse of that discretion).

Appellants argue the fact the employees were not employed by Norfolk Southern from October 13, 1993 through March 12, 1994, proves "they have lost no wages" during that time. Further, evidence of the unavailability of the employees' jobs is relevant to their inability to earn the sums they seek in lost wages. They argue that without this evidence "the jury was left with the mistaken impression that, but for the accident, the [employees] would still be earning the same income they received before the accident." We disagree. The evidence shows Davis and Schumpert were totally incapacitated during the period of their termination and were not able to hold down other employment. But for their injuries, these employees, presumably would have been able to work for another employer. They were deprived of that opportunity by the negligence of the Appellants. Evidence of the wages paid them by Norfolk Southern is therefore admissible to show what they could have earned elsewhere if they had not been injured. See Hall v. Norfolk Southern Ry. Co., 829 F.Supp. 1571 (N.D.Ga.1993)

.³ Under the unique circumstances of this case, we reject Appellants' claim that they should have been permitted to show the employees' jobs were unavailable during the period of termination.⁴ We also disagree with the assertion that the employees had the burden of...