Duke v. Parker

• Decision Date: 04 September 1923
• Docket Number: 11292.
• Citation: 118 S.E. 802,125 S.C. 442
• Parties: DUKE v. PARKER.
• Court: South Carolina Supreme Court

118 S.E. 802

125 S.C. 442

DUKE v. PARKER.

No. 11292.

Supreme Court of South Carolina

September 4, 1923

Appeal from Greenville County Court; M. F. Ansel, Judge.

Action by H. C. Duke against J. W. Parker. Judgment for plaintiff and defendant appeals. Reversed, and new trial ordered.

Haynsworth & Haynsworth, of Greenville, for appellant.

Bonham Price & Poag, of Greenville, for respondent.

MARION J.

There was a collision between plaintiff's and defendant's automobiles on a street in the city of Greenville. The plaintiff brought action in the county court for damages, in the sum of $1,000, alleged to have been negligently and recklessly inflicted by defendant. The defendant answered denying liability and setting up a counterclaim for damages in the sum of $500, alleged to have been negligently and recklessly caused by plaintiff. The plaintiff recovered judgment for $800.

The defendant's appeal raises, substantially, the one question of whether the trial judge committed prejudicial error of law in permitting plaintiff, over objection, to elicit from the defendant on cross-examination the fact that he carried indemnity or casualty insurance.

The testimony adduced, the objections thereto by counsel, and the ruling of the court are thus set out in the record:

"Q. Your damage is $45 or $50, yet your counterclaim is for $500. You did not attempt to bring damages? Did you not tell her to go ahead and have the car fixed and your insurance company would pay for it? A. No; I told her I would not have any hard feelings if she brought suit.

Mr. Haynsworth objects to all this on the ground that it is an effort to bring the insurance company into it.

Mr. Price: The liability is up to the insurance company to pay.

Court: Admit the question subject to objection, but in asking the question you make him your witness.

Q. You told her there would be no hard feelings; to bring the suit; that it was up to your insurance company? A. Yes.

Redirect by Mr. Haynsworth, subject to his objection:

Q. Did she not state she had insurance? A. Yes; I was taking dinner at Duke's Tea Room, and as I was leaving she called me back and said, suppose I admit my liability, and she would pay me the $50 repairs, and she would make the insurance company pay.

Mr. Price: I object to the statement.

Mr. Price asks: Is insurance causing a racket between neighbors? A. I did not know anything about a racket.

Mr. Haynworth continues:

Q. When she asked you to go into this arrangement so she could go into suit, what did you tell her with reference to liability? A. I did not do it. Q. Are you willing to admit liability on your part? A. No. Q. Have you been able to see fault on your part? A. No."

In the case of Horsford v. Glass Co., 92 S.C. 236, 258, 75 S.E. 533, 541, this court adopted and squarely applied the general rule that, in an action sounding in damages, the fact that the defendant is protected by indemnity insurance may not be introduced in evidence or referred to in argument of counsel. The rationale of the rule is there stated as follows:

"Such evidence or argument has a manifest and strong tendency to carry the jury away from the real issue and to lead them to regard carelessly the legal rights of the defendant on the ground that some one else will have to pay the verdict."

In Burgess v. Germany-Roy-Brown Co., 120 S.C. 285, 113 S.E. 118, in action for both actual and punitive damages arising out of a motor truck collision, the rule announced in Horsford v. Glass Co. was approved and applied. We are of the opinion that the case at bar is clearly ruled by those cases.

Respondent's contention that this evidence was admissible on cross-examination as tending to establish an admission of liability, or to impeach defendant's good faith in contesting liability and in...