Dial v. Niggel Associates, Inc.

• Decision Date: 30 November 1998
• Docket Number: No. 24859.,24859.
• Citation: 333 S.C. 253,509 S.E.2d 269
• Parties: Michelle DIAL, Personal Representative of the Estate of John Mark Dial, Respondent, v. NIGGEL ASSOCIATES, INC. and Freddie B. George, Petitioners.
• Court: South Carolina Supreme Court

333 S.C. 253

509 S.E.2d 269

Michelle DIAL, Personal Representative of the Estate of John Mark Dial, Respondent, v. NIGGEL ASSOCIATES, INC. and Freddie B. George, Petitioners.

No. 24859.

Supreme Court of South Carolina.

Heard February 17, 1998.

Decided November 30, 1998.

Rehearing Denied February 2, 1999.

Ronald E. Boston and Curtis L. Ott, both of Turner, Padget, Graham & Laney, P.A., of Columbia, for Petitioner Niggel Associates, Inc.

Robert C. Brown, of Brown & Brehmer, of Columbia, for Petitioner Freddie B. George.

David A. Fedor, of Fedor, Massey, Whitlark & Ballou, of Columbia, for respondent.

MOORE, Justice:

This case is before us on a writ of certiorari to review the Court of Appeals' decision¹ reversing the jury's verdict on the ground of inflammatory argument by counsel. We take this opportunity to clarify the narrowness of our holding in Toyota of Florence, Inc. v. Lynch, 314 S.C. 257, 442 S.E.2d 611 (1994), and reverse.

FACTS

Respondent's (Dial's) husband, a sheriff's deputy, was killed when the patrol car he was driving collided with a truck owned by petitioner Niggel Associates and driven by Niggel's employee, petitioner George. George subsequently pled guilty to felony driving under the influence. Dial then commenced this wrongful death action to recover for the death of her husband.² She alleged George was driving while intoxicated and caused the wreck by turning left across Deputy Dial's lane of travel.

At trial, proximate cause was a contested issue. Dial argued Deputy Dial's death was caused solely by George's negligence. In his defense, George argued the collision was caused by the excessive speed of the patrol car without headlights (it was dusk) or flashing signals to indicate speed.

The jury returned a defense verdict. Dial made a post-trial motion complaining certain remarks by counsel during closing argument were so inflammatory as to merit a new trial despite the fact that no contemporaneous objection was made. The trial judge denied the motion. On appeal, the Court of Appeals reversed relying on this Court's decision in Toyota.

DISCUSSION

The Court of Appeals held the following remarks by George's counsel mandated a new trial under Toyota:

[George] was driving on the public highways and he was .27. That's a D.U.I. He accepted his responsibility, and he got railroaded. He got railroaded, ladies and gentlemen.

Freddie George is serving 18 years of his life because he got railroaded.

....

What's going on here? I'll tell you what's going on. This man is on a set of tracks to prison because a police officer has died. But yet, a police officer is no better or worse than anybody else. My client has been railroaded. And he will not be railroaded today. You will reap what you sew (sic) as they said.

And they have sewed (sic) deceit, deception, lies and misconception. And they are the ones trying to trick you.

....

Did you see the videotape when they put it on that fancy t.v. they had here? There were cop cars everywhere, cops crawling over that place. A police officer has died.

....

Now, if you're drunk and you're driving, you know you're guilty of D.U.I. and you've got a dead cop and there ain't no evidence that you can put your hands on that's going to help you, what else are you going to do? You're a black man and there's a white police officer dead in the car over there.

a. "Deceit and lies" argument

George contends the statement in argument that: "[T]hey have sewed (sic) deceit, deception, lies and misconception. They are the ones trying to trick you...." should not have been considered by the Court of Appeals because it was not raised in Dial's post-trial motion. We agree.

In Toyota, we found reversible error despite the lack of a contemporaneous objection where the issue of inflammatory argument was raised for the first time in post-trial motions. Toyota cites the rule that "even in the absence of a contemporaneous objection, a new trial motion should be granted in flagrant cases where a vicious inflammatory argument results in clear prejudice." 314 S.C. at 263, 442 S.E.2d at 615 (citing South Carolina State Highway Dept. v. Nasim, 255 S.C. 406, 179 S.E.2d 211 (1971)).

Toyota sets forth a narrow exception to the general rule that a party must make a contemporaneous objection to improper argument or the objection is waived. See Varnadore v. Nationwide Mut. Ins. Co., 289 S.C. 155, 345 S.E.2d 711 (1986). Under Toyota, the issue of inflammatory argument must be raised to the trial judge by way of post-trial motion to preserve the issue for appeal.

In this case, the record indicates the allegation of racial prejudice was the only complaint Dial raised in her post-trial motion regarding counsel's argument. This allegation does not encompass counsel's "deceit and lies" remark. In addressing this issue, the Court of Appeals went beyond Toyota and improperly considered an issue not preserved by post-trial motion.

[2] In any event, on the merits, the "deceit and lies" statement does not rise to the level of a Toyota argument when considered in context. This statement was in response to accusatory remarks by Dial's counsel insisting George's failure to testify was a deceptive tactic. For instance, Dial's counsel stated:

But if they want to hide something or if they want to do it that way, why didn't they put their man up? I'll tell you why, but you can infer it in your own way. They didn't want you to know the truth. They didn't want you to know why George turned the way he did. They didn't want you to see George. They didn't want you to judge him.

. . .

Why didn't they put him on? They didn't put him on for one reason. They didn't put him on because they didn't want me or Jim to cross examine him, to learn the truth that you are here to get today, the truth.

Dial's counsel also referred to the use of a defense witness's deposition testimony rather than having the witness testify:

Do you think that's the reason Sease didn't testify and come up here from the company? The one man from the company they put up was Mr. Swift who doesn't know anything about it. He conveniently for his company, not for him, was off sick at that time. Don't you think if they want the truth they'd put somebody up here?

If they wanted the truth, where is George, where is Sease, where is (sic) the company people? Not here.

We have held argument of counsel is not so inflammatory as to constitute a ground for reversal where counsel responds in kind to previous argument of opposing counsel. State v. Singleton, 284 S.C. 388, 326 S.E.2d 153 (1985). In this case, counsel's "deceit and lies" remark was in response to opposing counsel's repeated accusation of deception. In context, this remark was not so inflammatory as to come within the ambit of our decision in Toyota.

In conclusion, the Court of Appeals should not have considered counsel's "deceit and lies" argument in reversing the denial of Dial's post-trial motion. We take this opportunity to reiterate that the exception in Toyota excusing the failure to make a contemporaneous objection is limited to instances where the issue is raised to the trial judge by post-trial motion.

b. Racial prejudice argument

The remainder of counsel's argument found inflammatory by the Court of Appeals refers to George being "railroaded" because he is a black man and Deputy Dial was a white police officer. These comments taken in context refer to George's guilty plea in the related criminal case.³ George contends these remarks do not compel reversal under Toyota. We agree.

In Toyota, we considered an argument during which counsel used posters depicting characters with Oriental features involved in bribery and document shredding. Counsel's argument made an oblique reference to atomic bombs. One of the parties was a regional distributor of Toyota vehicles, a Japanese automotive brand. We found this argument was "outrageous" and counsel's conduct "abhorrent" for evoking such racial prejudice. 314 S.C. at 263, 442 S.E.2d at 615. In allowing an exception to the contemporaneous objection rule, Toyota relied on Nasim, supra, a land condemnation case. In that case, during closing argument, counsel referred to the State's land appraiser as a "quizzling quivaler" and stated: "Do you remember the `quizzler' back in World War II? The ones back in Germany and France, the ones that sided up with the enemy?" 255 S.C. at 409,179 S.E.2d at 212. He also referred to the witness as a "great highway robber" and stated that the witness was "tr[ying] to steal my client's property." Id. at 409-10, 179 S.E.2d at 212.

Nasim relies on Major v. Alverson, 183 S.C. 123, 190 S.E. 449 (1937), in allowing an exception to the contemporaneous objection rule. Nasim specifically quotes the conclusion in Major that calling the opposing party a "bare-faced liar" was not merely improper "but amounted to an abuse of the witness.... In short, where counsel applies to a witness or litigant abusive epithets, he will do so at his own peril." 255 S.C. at 411, 179 S.E.2d at 212 (quoting Major, 183 S.C. at 125, 190 S.E. at 450 (emphasis added)).

Nasim also cites Edwards v. Union Buffalo Mills Co., 162 S.C. 17, 159 S.E. 818 (1931), where counsel referred to the opposing party's expert witnesses in argument as follows:

I am casting no reflections on the doctors, but I think it was one distinguished Chief Justice who said, that there are two classes of liars. One, he said is the plain liars, and the other is the experts. Don't take that literally; I don't mean that, but I do mean that when you have money you can line up doctors on one side and doctors on the other, as many as you want to, and they will try to out-swear each other.

162 S.C. at 26, 159 S.E. at 821. In reversing and remanding for a new trial, Edwards specifically noted that "witnesses are entitled to the protection of the Court." Id. at 28, 159 S.E. at 822.

Toyota and the line of cases preceding it concern abuse of a witness or litigant. A...