Ford v. A. A. A. Highway Exp.

• Decision Date: 13 April 1944
• Docket Number: 15641.
• Citation: 29 S.E.2d 760,204 S.C. 433
• Parties: FORD v. A. A. A. HIGHWAY EXPRESS, Inc., et al. SAME v. A. A. A. HIGHWAY EXPRESS, Inc.
• Court: South Carolina Supreme Court

29 S.E.2d 760

204 S.C. 433

FORD v. A. A. A. HIGHWAY EXPRESS, Inc., et al.

SAME v. A. A. A. HIGHWAY EXPRESS, Inc.

No. 15641.

Supreme Court of South Carolina

April 13, 1944

Bussey Fulcher & Hardin, of Augusta, Ga., and Hendersons &amp Salley, of Aiken, for appellant.

Williams & Busbee, of Aiken, for respondent.

FISHBURNE Justice.

The appeal involves two cases growing out of a highway traffic accident on January 1, 1943, in the County of Aiken, which resulted in the death of S.D. Albright. At the time of the accident Albright was in a wagon drawn by a mule traveling in the direction of Clearwater, and the wagon was hit from the rear by a heavily loaded motor truck of the Express Company.

The actions were brought by the plaintiff as administrator for the benefit of the two minor children of the deceased. The main action was for the recovery of damages for wrongful death, under Lord Campbell's Act; the second was for property damage to the mule, wagon, and the loss of certain merchandise which was being transported in the vehicle. By agreement, the two causes were consolidated and tried together. In the main action judgment was rendered against the defendants in the amount of $14,000, actual damages; and in the property damage suit judgment was rendered for $300 actual damages. The trial Judge, upon motion for a new trial, reduced the verdict in the action for wrongful death, to $13,000, and in the property damage case to $175. These reductions were duly accepted of record by the plaintiff.

The complaint contains the usual specifications of negligence appertaining to traffic accident cases, including failure on the part of the defendants to keep a proper look out for other travelers on the highway; driving the truck at a high and dangerous rate of speed; operating a heavily loaded truck upon the public highway with defective brakes.

The deceased was driving his wagon on the right of the centre of the public highway, with the left hand wheels on the paved cement, and the right hand wheels on the shoulder. It is the contention of the plaintiff that he was driving straight ahead at the time of the accident; while the appellants contend that just prior to the crash he had guided his mule and wagon to the left, without looking for vehicles approaching from the rear, and that he was guilty of contributory negligence in so doing.

The circumstances attendant upon the accident were these. The mule was being driven at a fast walk. Behind the wagon was a Ford automobile; about a hundred feet behind the automobile was the truck of the corporate defendant, containing a load of about 14,600 pounds. The Ford automobile turned to its left and passed the wagon. The driver of the truck, the defendant Gantt, did not see the wagon until the Ford automobile turned out to pass it. The truck, traveling at a speed of thirty miles per hour, then attempted to pass. Gantt, throughout his testimony, stated that when he started around the wagon he was too close to it, but expressed the belief that he could have avoided the collision if the deceased had not turned his mule and wagon to the left. He also said that his brakes were defective, but that even if they had been good, he was too near the wagon to use them effectively.

Appellants complain of the instruction given by the trial Judge on the measure of damages. After charging the jury that it was proper to take into consideration the mental shock and grief sustained by the children, and the deprivation of their father's companionship, experience and judgment, the Judge continued: "You can also give consideration to any testimony to the loss of his ability to earn money for the support, maintenance, care and protection of his minor children. And since only one action can be brought therefor, it would be proper to include all damages, present and prospective, which are naturally the proximate consequence of a wrongful act, provided, of course, there was a wrongful act."

The criticism of appellants is directed against that portion of the above charge which we have italicized. Appellants' counsel say that this instruction violates the rule generally followed in this jurisdiction, that future or prospective damages must be confined to such as the evidence renders it reasonably certain will result from the original injury.

While South Carolina follows the "reasonable certainty" rule, other equivalent expressions may be used, provided the jury, when considering the instruction as a whole, are not allowed to go into the realm of speculation and conjecture. For a comprehensive discussion of this subject, showing the diversity of opinion among the various jurisdictions, see annotations 81 A.L.R. 423, and 85 A.L.R. 1010.

In Green v. Catawba Power Co., 75 S.C. 102, 55 S.E. 125, 126, 9 Ann.Cas. 1050, an instruction was held to be erroneous which contained this expression: "Which he is liable to endure in the future by reason of his injury." The use of the word "liable" was disapproved of, because it was held that it signified something that might happen without importing reasonable certainty that it would happen. The Court held that the instruction in such cases should be that the verdict may include such damages as it is reasonably certain will, of necessity, result in the future from the injury.

In Brewer v. Northwestern R. Co. of South Carolina, 151 S.C. 415, 149 S.E. 124, an instruction which allowed the plaintiff to recover damages for such pain and suffering as "he may hereafter suffer," was held to be incorrect as allowing speculative damages, the error being that the damages were not limited to those which it was reasonably certain would result in the future from the original injury.

However, in Shramek v. Walker, 152 S.C. 88, 89, 149 S.E. 331, where the jury were instructed that they could assess actual damages for such suffering as the plaintiff "may undergo" in the future from the alleged injury, it was held that the word "may," objected to, was used in the sense of futurity, synonymous with "will," and did not involve the objectionable element of chance or speculation. Other illustrative cases are Chesser v. Tyger River Pine Co., 155 S.C. 356, 152 S.E. 646; Pinkussohn v. Great Atlantic & Pacific Tea Co., 184 S.C. 171, 192 S.E. 283; and Lockhart Power Co. v. Askew, 110 S.C. 449, 96 S.E. 685.

That portion of the instruction given by the presiding Judge which is complained of might be termed technically erroneous, in that he failed to use the expression "reasonable certainty" with reference to prospective damages. But we do not think that the charge permitted the jury to embark upon conjecture or mere possibilities.

Under the instruction given, future damages were limited to such as were naturally the proximate consequence of defendants' wrongful act. We think a fair construction of this phraseology means, and was understood by the jury to mean, such consequential losses as were reasonably certain to accrue in the future as the result of the injury complained of. The instruction, in our opinion, did not invite conjecture or unrestrained speculation on the part of the jury; nor by this language were the jury induced to believe that in allowing damages, they were authorized to give compensation for some remote, uncertain, and problematic future loss. The word "naturally," as here used, implies that which is reasonably certain to happen in the common experience of mankind. It imports that the result must be one which manifestly and logically would reasonably come to pass, and not a mere possibility or probability. So that a natural consequence is one which follows the original act complained of in the usual, ordinary, and experienced course of events. A result, therefore, which might be anticipated as reasonably certain. We cannot believe that the jury was misled by the charge as given, or that the charge was prejudicial.

The appellants vigorously urge that they were seriously prejudiced by the admission of certain objectionable-evidence offered by the plaintiff in rebuttal. In addition to a general denial, they had set up the affirmative defense of contributory negligence, and alleged that the deceased immediately before the collision, guided his vehicle in front of the truck as it was attempting to pass, which action on his part made it impossible for the driver of the truck to avoid running into the wagon. It is claimed that the...