Haynes v. Graham

• Court: South Carolina Supreme Court
• Writing for the Court: The opinion of the Court was delivered by MR. JUSTICE BONHAM.
• Citation: Haynes v. Graham, 192 S.C. 382, 6 S.E.2d 903 (S.C. 1940)
• Decision Date: 24 January 1940
• Docket Number: 15003.
• Parties: HAYNES v. GRAHAM et al.

6 S.E.2d 903

192 S.C. 382

HAYNES v. GRAHAM et al.

No. 15003.

Supreme Court of South Carolina

January 24, 1940

Perrin & Tinsley, of Spartanburg, for appellants.

L G. Southard, of Spartanburg, for respondent.

BONHAM Justice.

This action was brought by plaintiff to recover damages for injuries which she alleges she sustained when she fell upon the floor of the store room of the appellants, in which she was employed as a saleswoman. The case was tried by Judge T S. Sease and a jury.

While Dr. Hugh Black, a witness for plaintiff, was being cross-examined by Mr. Perrin, of counsel for defendants, he was asked:

"Q. It was after you put the cast on her? A. No, sir; I called him and told him we were going to put her in a cast, and he referred me to the First Mutual Insurance Agency.

"The Court: Wait a minute. How did that come out? "Mr. Perrin: I would like to move that the Court withdraw the case from the jury. That answer was unsolicited and it was not in answer to any question.

" The Court: It is not the fault of the lawyer representing the plaintiff; it is not your fault, and not my fault. It is the fault of the witness. Motion overruled."

Motion for directed verdict was also overruled.

The case went on, and the jury found for the plaintiff actual damages. Motion for new trial was overruled. Defendants appeal on grounds set forth in twenty-one exceptions; these are grouped in counsel's brief in the form of six questions. We do not find it necessary to consider them seriatim.

The first question is: "Did the Judge err in refusing the motion for a mistrial?"

One of the grounds of the motion for new trial was that Dr. Black plaintiff's witness, had interjected the matter of insurance into the case. In the order of the presiding Judge overruling the motion, he said: "The record will show that the statement was not brought out by the plaintiff's attorney. Indeed, during his direct examination, Dr. Black did not mention the words 'insurance agent'. It was when he was on cross-examination that the doctor volunteered the words, and they were not in response to the question Mr. Perrin had asked. ***" The logical deduction from this utterance of the Court is that inasmuch as this inadmissible evidence was not adduced by any action on the part of plaintiff's attorney, he would not be justified in declaring a mistrial. We may say that it was not adduced by any action on the part of defendant's attorney; nevertheless, it was before the jury with all of its baleful effect. Since the utterance of this Court in the case of Horsford v. Carolina Glass Co., 92 S.C. 236, 75 S.E. 533, 541, the injection into the trial of a case of any reference to the fact that the defendant is covered by indemnity insurance is highly improper and inadmissible. If it appear by utterances of other opinions since that case, that it is now the tendency to lower the standard set by the Horsford case, that tendency should be halted. This Court stands by the Horsford case.

In the Horsford case that eminent jurist, Associate Justice C. A. Woods, later a member of the United States Circuit Court of Appeals, Fourth Circuit, said:

"But when testimony manifestly incompetent and prejudicial is adduced for the purpose of having such testimony influence the jury, the party who adduces it will not be allowed to hold his verdict and assert that the court can do nothing against the unfair advantage of having the statement before the jury, beyond striking it out and instructing the jury to disregard it. In such case it does not lie in the mouth of the offending party to say that, although he has brought in irrelevant and prejudicial testimony, the court cannot entirely deprive him of the benefit of it. It makes no difference that defendant's counsel did not move to strike out the testimony. Had the motion been made and granted, the plaintiff would still have had the unfair advantage of having testimony before the jury which he ought not to have offered. Justice can be satisfied only by the complete relief of a new trial. ***

"The inevitable conclusion that a party should not be allowed to hold a verdict obtained under such circumstances is enforced and illustrated in many cases. With respect to testimony as to employer's insurance, the Supreme Court of Mississippi said, in Herrin v. Daly, 80 Miss. 340, 31 So. 790, 92 Am.St.Rep. 605: 'It could not conceivably throw any light on the issue, and could have no other tendency than to seduce a verdict on the ground that an insurance company, and not the defendants, would be affected.' ***"

The respondent and the Circuit Judge hold that the case of Vollington v. Southern Paving Const. Co., 166 S.C. 448, 165 S.E. 184, 186, is authority for the action of the Court in the instant case. The two cases depend, for a proper understanding, upon the facts in each case and the application of the law thereto. We have seen what occurred in the present case. In the Vollington case the defendant's counsel was examining in chief one of the defendants and asked a question, to which the defendant witness volunteered the testimony which brought into the case evidence of the fact that the defendants were protected by insurance; to this plaintiff's counsel objected. It was in such circumstances that this Court said: "*** Surely the plaintiff should not be penalized for that for which he was in no wise responsible." Continuing the quotation from the Vollington case: "*** The presiding judge did all he could to repair the inadvertence of defendants' witness. Counsel agreed that the matter be struck from the record. If defendant's counsel felt that the matter was of such moment as to seriously and injuriously affect his clients' interest, he should have moved the court for a nonsuit, or for the ordering of a mistrial. Having failed to do either of these things, he must be held *** to have waived his objections. ***"

In the present case the objectionable reference to insurance was introduced by plaintiff's superserviceable witness--a most intelligent witness; one who, it is safe to say, because of his medical and surgical knowledge and practice, and his connection with a large hospital, and his frequent attendance upon Courts as a witness in damage suit cases, had some idea of the import of the evidence he volunteered. But be that as it may, the plaintiff got the benefit of this objectionable evidence offered by her own witness. Counsel promptly moved for the ordering of a mistrial. We can conceive of no more effective way of asking that the whole matter be struck from the record. It was error not to grant that motion.

We find no merit in the exceptions which charge error to the presiding Judge for refusing defendants' motion for a directed verdict in the matter of punitive damages. The Court said, when the motion was made: "I am going to submit both questions to the jury. If I don't like the punitive damages, I will cut it off."

We are not much in sympathy with this manner of treating such a motion; we think the movant is entitled to have his motion acted upon before the case goes to the jury. However, in this case the question has become an academic one, since the jury found only actual damages. This Court has repeatedly held that in such case there is no ground for appeal.

Appellants' twelfth exception charges error in that the Circuit Judge participated in the examination of the plaintiff while she was a witness. The record shows the following occurrence when the plaintiff was being cross-examined with reference to the alleged depression in the floor:

"Q. How large was it? A. Large enough to get me hurt.

"Q. Was there anything to keep you from seeing it? A. Those tables were there.

"Q. Was there anything to keep you from seeing it? A. I wasn't looking for it; he was supposed to have it clear.

"Q. Did you see it? A. No, you know I didn't.

"The Court: Until you slipped? A. That is right."

No one who knows the able and experienced jurist who presided in this trial will entertain the remotest suggestion that he intentionally interjected his own view or thought into the case. It was plainly an inadvertence. Nevertheless, it was unfortunate that it was made. One who is familiar with the trial history of the Courts of this State will recall that before the War of 1860-65 the Judges could and did comment on the facts of a case. There grew up a strong sentiment against the practice, which culminated in a provision of the Constitution of 1868 which took from the Judges this privilege, and strictly inhibited it. It is true that the Constitution was the work of a Convention composed of people not native to the State, of renegade native whites and ignorant and illiterate colored people who had just been freed from slavery. But the Convention of 1895, composed of natives of the State,...