Jackson v. Price

• Decision Date: 28 January 1986
• Docket Number: No. 0672,0672
• Citation: 342 S.E.2d 628,288 S.C. 377
• Court: South Carolina Court of Appeals
• Parties: Linda B. JACKSON, Administratrix of the Estate of Roosevelt Jackson, deceased, Respondent, v. Dewey E. PRICE, Administrator of the Estate of Charles V. Price, deceased, and Randall Bobby Davis, Appellants. . Heard

Page 628

342 S.E.2d 628

288 S.C. 377

Linda B. JACKSON, Administratrix of the Estate of Roosevelt Jackson, deceased, Respondent, v. Dewey E. PRICE, Administrator of the Estate of Charles V Price, deceased, and Randall Bobby Davis, Appellants.

No. 0672.

Court of Appeals of South Carolina.

Heard Jan. 28, 1986.

Decided April 7, 1986.

James E. McDonald, and Stephen D. Baggett, Burns, McDonald, Bradford, Erwin & Patrick, Greenwood, for appellants.

James P. Anderson, of Ayers & Anderson, Greenwood, for respondent.

CURETON, Judge:

Respondent Linda B. Jackson, administratrix of the estate of Roosevelt Jackson, commenced this wrongful death action against the appellants, Randall Bobby Davis, individually, and Dewey E. Price, the administrator of the estate of Charles V. Price. The jury rendered a verdict for Jackson totalling Two Hundred Fifteen Thousand Dollars ($215,000.00) and apportioned the award as follows: One Hundred Ninety Thousand Dollars ($190,000.00) against Price and Twenty-five Thousand Dollars ($25,000.00) against Davis. We affirm.

On November 12, 1982, Roosevelt Jackson was killed instantly when his pickup truck collided head-on in the eastbound lane with an automobile driven by Price and owned by Davis, a passenger. Price also died following the collision. The complaint alleged that Price was negligent and reckless in operating Davis' car. The complaint also alleges that Davis negligently entrusted his car to Price and that Davis failed to warn Price of the danger arising from driving in the wrong lane of traffic. Price and Davis denied that they were negligent and asserted that Jackson's death was caused by his contributory negligence in failing to keep a proper lookout, driving under the influence, and failing to keep his pickup truck under proper control.

At trial, a highway patrolman who was not qualified as an expert witness testified that he arrived on the scene within minutes of the collision. He described how the vehicles were positioned after the collision and over objection, gave his opinion that the point of impact was in the eastbound lane. He also testified that Jackson's blood alcohol level was .150 percent and Price's was .156 percent.

Two of Jackson's coworkers, the driver and passenger of a car travelling along the same road on the night of the collision, also testified. Their testimony can be summarized as follows. Jackson's truck trailed their car as both vehicles travelled in an easterly direction. A car approached the coworkers from the east in their lane. The oncoming car swerved onto the shoulder thereby closely avoiding an accident. When the car returned to the road, it "just drove straight back into the center of the road" before the road behind the coworkers became engulfed in darkness following the collision.

Davis testified that he drank at least six beers in the seven hours preceding the collision and that he believed Price drank two or three beers in the hour or so preceding the collision. He allowed Price to drive his car, however, because he (1) seemed sober, (2) was in better shape than Davis and (3) had driven safely earlier in the evening. Concerning the accident, he testified that Price had driven into the left hand lane to avoid colliding with a car which had stopped in front of them in the right hand lane. The last thing that Davis remembered about the collision was that he saw headlights while in the left or passing lane.

Jackson's employer testified that at the time of his death Jackson earned Eight and 74/100 Dollars ($8.74) per hour and was entitled to numerous employee benefits. An economist, qualified as an expert witness in calculating financial losses in wrongful death cases, testified for Jackson. In response to a hypothetical question which included facts about Jackson and his beneficiaries, the expert opined that the beneficiaries' loss was Three Hundred Fifty-eight Thousand Six Hundred Fifty-five Dollars ($358,655.00) taking into consideration his allowances for Jackson's personal taxes and expenses.

The issues in this case are whether (1) the trial judge abused his discretion in allowing the highway patrolman to testify as to the point of impact; (2) the trial judge properly allowed the economist to respond to a hypothetical question; (3) there is any evidence to support the trial judge's denial of a judgment n.o.v. or new trial; and (4) the trial judge properly declined to charge the jury in accordance with Davis' and Price's request to charge concerning sudden peril.

The appellants argue that the trial judge erred in allowing the highway patrolman to testify as to the point of impact. We agree. See e.g. State v. Kelly, 285 S.C. 373, 374, 329 S.E.2d 442, 443 (1985) ("A police officer may not give his opinion as to the cause of the accident. He may only testify regarding his direct observations unless he is qualified as an expert."); Willard v. McCoy, 234 S.C. 317, 108 S.E.2d 113 (1959) (judgment for plaintiff reversed because patrolman who was not an eyewitness testified regarding how many times a car overturned); Thompson v. South Carolina Highway Department, 224 S.C. 338, 79 S.E.2d 160 (1953) (error for highway patrolman who did not see accident to testify about speed of car). Cf. Robinson v. Duke Power Co., 213 S.C. 185, 195, 48 S.E.2d 808, 812 (1948) (permitting patrolman who was not an eye witness to collision to testify regarding point of impact not prejudicial where witness determined point of impact from position of vehicles, broken glass and skidmarks and photographs collaborated his testimony).

While we believe the admission of the patrolman's testimony was improper, we do not reverse the jury verdict. "Ordinarily, the conduct of a trial including the admission and rejection of testimony, is largely within trial judges' discretion, exercise of which will not be disturbed unless abuse of such discretion, commission of legal error in its exercise, and resulting prejudice to appellant's rights can be shown." South Carolina State Highway Department v. Rural Land Co., 250 S.C. 12, 23, 156 S.E.2d 333, (1967) (emphasis added); Cudd v. John Hancock Mutual Life Insurance Co., 279 S.C. 623, 629, 310 S.E.2d 830, 833 (Ct.App.1983) "[R]eversal is not warranted where evidence erroneously admitted is merely cumulative." Clark...