Fortune v. Gibson, 1634

• Decision Date: 21 January 1991
• Docket Number: No. 1634,1634
• Citation: 403 S.E.2d 674,304 S.C. 279
• Court: South Carolina Court of Appeals
• Parties: Kareem FORTUNE, a minor under the age of Fourteen (14) years, Respondent, v. Anthony B. GIBSON and Howard Trapp, Jr., of Whom Howard Trapp, Jr., is the Appellant. Darryl McGHANEY, Respondent, v. Anthony B. GIBSON and Howard Trapp, Jr., of Whom Howard Trapp, Jr., is the Appellant. Appeal of Howard TRAPP, Jr. (2 cases) . Heard

Page 674

403 S.E.2d 674

304 S.C. 279

Kareem FORTUNE, a minor under the age of Fourteen (14)

years, Respondent, v. Anthony B. GIBSON and Howard Trapp, Jr., of Whom Howard

Trapp, Jr., is the Appellant.

Darryl McGHANEY, Respondent, v. Anthony B. GIBSON and Howard Trapp, Jr., of Whom Howard

Trapp, Jr., is the Appellant.

Appeal of Howard TRAPP, Jr. (2 cases)

No. 1634.

Court of Appeals of South Carolina.

Heard Jan. 21, 1991.

Decided April 1, 1991.

Thomas C. Cofield and R. Lewis Johnson of Barnes, Alford, Stork & Johnson, Columbia, for appellant.

Nelson B. Parker, Manning, William B. Woods of Brown & Woods, Columbia, and John E. Miles, Sumter, for respondents.

PER CURIAM:

This is an appeal from judgment in two negligence actions that were consolidated for trial. Kareem Fortune and Darryl McGhaney were passengers in a car driven by Anthony Gibson. Gibson's car collided with one driven by Howard Trapp, Jr., and Fortune and McGhaney sued Gibson and Trapp for injuries they suffered as a result of the accident. Gibson filed a cross-claim against Trapp for his damages. After the parties agreed to a bifurcated trial, the issue of liability was tried and a jury returned a verdict against Trapp in favor of Fortune, McGhaney, and Gibson. During the recess before the damages phase, one of the jurors was selected for another jury. The judge recessed until the full jury could be reassembled. During that recess, two additional jurors were seated on yet another jury. The judge then asked the parties if they would proceed in the damages phase with less than twelve jurors. Trapp refused. Thereafter, the judge sustained a motion, over Trapp's objection, to continue the damages phase until the next term of court. Trapp moved for a new trial absolute on the ground that he was entitled to have the same jury decide the damages issue as had decided the issue of liability. The motion was denied. The damages phase was tried at a later term of court with a different jury. The jury awarded Fortune, McGhaney, and Gibson damages against Trapp. Trapp appeals. We affirm.

Trapp asserts two arguments on appeal: (1) the circuit court erred in continuing the damages phase to a successive term before a different jury; and (2) the court erred in submitting the case to the jury on interrogatories which did not include a specific interrogatory on Trapp's contributory negligence defense against Gibson's cross-claim.

I.

We note from the outset that this is not a case in which we must decide the propriety of the bifurcated trial; all parties consented to separate trials on the issues of liability and damages. Instead, the question before us is whether the same jury that decided the liability issue also must decide the issue of damages.

We hold there is no per se rule that the same jury must decide both issues. To hold otherwise would be to ignore a fundamental principle underlying bifurcation: a trial may be bifurcated only if the issues are so distinct that a trial of each alone would not result in injustice. See In re Plywood Antitrust Litigation, 655 F.2d 627 (5th Cir.1981). The very purpose of this principle is to cover cases in which separate juries decide separate issues. If South Carolina Rule of Civil Procedure 42(b) contemplated bifurcation before the same jury only, there would be no need for the requirement that the issues be distinct....