Jeffords v. Florence County, No. 13347.

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: BONHAM
• Citation: 162 S.E. 574
• Parties: JEFFORDS. v. FLORENCE COUNTY.
• Decision Date: 10 February 1932
• Docket Number: No. 13347.

162 S.E. 574

JEFFORDS.
v.
FLORENCE COUNTY.

No. 13347.

Supreme Court of South Carolina.

Feb. 10, 1932.

[162 S.E. 575]

Appeal from Common Pleas Circuit Court of Florence County; R. W. Sharkey, Judge.

Action by O. N. Jeffords against Florence County. Judgment for plaintiff, and defendant appeals.

Affirmed.

D. Gordon Baker, of Florence, for appellant

W. Stokes Houck, of Florence, for respondent.

BONHAM, J.

This case bristles with sharp contradictions. The action is brought to recover damages for injuries to his person and damages to his property, which plaintiff alleges he suffered under the following circumstances: It appears from the complaint that the authorities of Florence undertook, in the summer of 1930, the work of widening a portion of the highway in that county leading from the Timmonsville-Darlington highway to Ebenezer; that in this work the county authorities constructed a ditch which ran halfway across the road; that work on this project was discontinued August 31, 1930, and the ditch left open in the road; that on February 18, 1931, in the nighttime, plaintiff was driving along this highway, in a prudent and careful manner, and, without himself being negligent in any manner, ran into and over this ditch, was thrown through the windshield of his car, in consequence of which he received personal injuries and his ear was burned. He asked damages in the sum of $1,000.

For answer defendant denied the material allegations of the complaint; it alleged that plaintiff did not drive his ear into and over said ditch as he alleged, but that he drove it into a ditch which ran parallel to the public road and at a point thirty-five or forty feet from the ditch into and over which plaintiff claims to have driven, which ditch had been there for time immemorial; that, if plaintiff suffered any damage or injury, it was due entirely to his own negligence.

The case was heard by Judge R. W. Sharkey, of the county court of Florence, with a jury, and resulted in a verdict for plaintiff in the sum of $477.50.

At the conclusion of all the testimony, defendant asked for a directed verdict in its favor on the grounds set out in the record. This was refused. After the rendition of the verdict, defendant asked for a new trial on the grounds set out in the transcript. This motion was refused. This appeal followed, predicated upon exceptions, eleven in number, which challenge the correctness of the ruling of the presiding judge which excluded certain testimony which defendant's attorney, on cross-examination, sought to elicit from plaintiff with reference to insurance on his car; for that it was error to refuse the motion for directed verdict and for new trial because the evidence showed that there was not a scintilla of evidence that plaintiff Tan his car into and over the ditch, as he claims; that there is not a scintilla of evidence that plaintiff was driving on the right of the center of the road where the law required him to be, for that there is not a scintilla of evidence that plaintiff did not in any way bring about his injury by his own act, or negligently contribute thereto; that his honor erred in refusing to charge, as requested by defendant, that the negligence of the plaintiff did not have to be the proximate cause of the injury, and that plaintiff could not recover if his injury was in any way brought about by his own negligence, or if he negligently contributed thereto; for that his honor erred in charging the jury that the plaintiff, in order to recover, must prove that he drove his automobile, or some part thereof, over the ditch; for that it was error to charge that driving on the left side of the road was not negligence, unless it impeded or obstructed traffic or the lawful use of the road by others; for that it was error not to charge that no negligence of the defendant made it liable, unless it was the proximate cause of the injury; that a new trial should have been granted, for that there was no allegation in the complaint which would put defendant on notice that plaintiff would claim damages for the loss of a suit of clothes; and because the jury did not, in estimating damages, consider the wear and tear of the car.

Appellant's counsel, in his brief, treats these exceptions under the head of certain questions. We shall adopt that method of considering them.

[162 S.E. 576]

Question 1: "Did the trial Judge err in excluding testimony that plaintiff's alleged loss was partially covered by insurance, and that even though his loss was materially decreased by such insurance, yet he still could recover the full alleged value of his property destroyed, the Statute authorizing the suit limiting a Complaint to his actual loss?"

While plaintiff was under cross-examination by appellant's attorney, it was sought to show that he carried insurance on his automobile which had been paid, and thus his loss was reduced. The jury was excluded and the testimony taken under objection by plaintiff's attorney. The presiding judge, after considering the question overnight, excluded the evidence. The weight of authority sustains his ruling. Our case of Farmers' Mercantile Co. v. Seaboard A. L. Ry. reported in 102 S. C. 348, 86 S. E. 678, 679, is in point. There a warehouse was burned; the Are being ignited by sparks from an engine of defendant. Suit was brought for $6,500. The goods burned were insured for $4,000, which was paid. The verdict was for $2,500 in favor of the warehouse company, but the insurance companies which had paid the $4,000 for which the burned goods were insured were held subrogated to the rights of the warehouse company, and were authorized to maintain their action therefor against the railway company. Mr. Justice Gage, in delivering the unanimous opinion of the Supreme Court, said:

"The action was primarily one by the Farmers' Company against the defendant for the destruction of its property. It made no difference to the defendant whether the Farmers' Company had insurance or not.

"If the defendant wrongfully burned the Farmers' Company's property worth $6,500, the complaint so alleged, and the jury so found, then it was liable therefor, whether the Farmers' Company had insurance or not. The Farmers' Company * * * might not recover the same loss from two obligees.

"The obligation of the defendant to the Farmers' Company was primary.

"The obligation of the Insurance Company to the Farmers' Company was secondary.

"The defendant therefore was not interested in whether the insurance company was obliged to pay or not; that circumstance could not decrease or affect its liability to the Farmers' Company."

In the present case the record shows that insurance was carried by the people who sold the car to the plaintiff; they got the insurance, he got none of it. Moreover, this action was for the loss of the car, other personal property, and personal injuries to plaintiff. The recovery does not show that plaintiff is recovering the same loss from two obligees.

"There appears to be no dissent among the courts from the view that the receipt of money on an accident...