Jordan v. Taylor

• Decision Date: 10 June 1968
• Citation: Jordan v. Taylor, 209 Va. 43, 161 S.E.2d 790 (1968)
• Parties: George Edward JORDAN v. Frank TAYLOR, Administrator, etc.
• Court: Virginia Supreme Court

Page 790

161 S.E.2d 790

209 Va. 43

George Edward JORDAN v.Frank TAYLOR, Administrator, etc.

Supreme Court of Appeals of Virginia.

June 10, 1968.

William V. Hoyle, Newport News (Hoyle & Short, Newport News, on the brief), for plaintiff in error.

Herbert H. Bateman, Newport News (Jones, Blechman, Woltz & Kelly, Newport News, on the brief), for defendant in error.

Before EGGLESTON, C.J., and BUCHANAN, SNEAD, I'ANSON, CARRICO, GORDON, and HARRISON, JJ.

SNEAD, Justice.

Frank Taylor, Administrator of the estate of Linda Taylor, plaintiff, instituted an action for damages against Guy L. Smith, Administrator of the estate of Seth Letus Smith, and George Edward Jordan, defendants.The motion for judgment alleged, among other things, that plaintiff's decedent was killed when the automobile in which she was a passenger and being driven by Seth Letus Smith, collided with a vehicle operated by Jordan, and that the collision and the resulting death of plaintiff's decedent were caused by the gross negligence of both Seth Letus Smith and Jordan.

On July 12, 1966, the day the trial commenced, plaintiff was granted a non-suit as to defendant Smith.Defense counsel then moved for a continuance on the ground that a court reporter who had been previously engaged was absent.The reporter had been informed that the case was settled or continued.The court, after hearing argument, overruled the motion.However, the trial judge instructed his secretary to take stenographic notes of the proceedings until a court reporter could be obtained.The trial before a jury proceeded with Jordan as the sole defendant, and he was represented by counsel for two uninsured motorist carriers.

At the conclusion of plaintiff's evidence and again at the close of all of the evidence, defendant moved the court to strike plaintiff's evidence.Both motions were overruled and the case was submitted to the jury.A verdict was returned for the plaintiff in the sum of $35,000.Jordan's motion to set aside the verdict was overruled and judgment was entered in accordance with the verdict.We granted Jordan a writ of error.

The fatal accident occurred on September 12, 1965, at approximately 6:00 p.m. on U.S. Route 17, two-tenths of a mile south of the Nansemond River Bridge in Nansemond county.At this point Route 17, which runs in a general north-south direction, is a two-lane black top highway with narrow shoulders and shallow ditches on each side.White lines separate the lanes.The road is 'generally straight' except for a 'medium curve' a 'few hundred yards' from the southern end of the bridge.The weather was clear, the sun was shining and the road was dry.The speed limit was 55 miles an hour.The automobiles involved in the collision were a Rambler sedan driven by Seth Letus Smith in which plaintiff's decedent was a passenger and a red Buick sedan operated by Jordan in which Allen C. Joyner was riding.

The evidence was conflicting as to how the collision occurred.Benjamin F. Pierce, a civil engineer, testified that he was driving north on Route 17 toward the Nansemond bridge and at a point about 100 feet south of the curve, he met a red Buick automobile traveling south between 55 and 60 miles an hour.Pierce stated that the Buick 'was weaving back and forth on the road', and that he was compelled to drive off the road onto the east or right shoulder to avoid a collision.In spite of this maneuver on his part, Pierce said he'narrowly avoided being struck' by the car.After the Buick passed, Pierce 'pulled back' onto the highway, glanced into his rear view mirror, and 'almost immediately'he saw it collide with the Smith vehicle which was being driven in a northerly direction.Pierce said that the point of impact was approximately 100 yards south of his vehicle, and that he'believed' the collision occurred on the 'edge of the northbound lane and shoulder' of the highway.

After observing the accident, Pierce turned his vehicle around and proceeded to the wrecked cars.He testified that the Rambler automobile came to rest off the east side of the highway on the shoulder facing north and the Buick vehicle was in the highway headed in an easterly direction.On direct examination, Pierce was asked if what he observed at the accident scene was consistent with what he observed through his rear view mirror.Over Jordan's objection, he answered in the affirmative.

Trooper Lewis S. Slade arrived at the scene before either of the cars involved in the head-on collision was moved.He found the automobiles in practically the same positions as stated by Pierce.Slade testified that the left wheels of Smith's Rambler were located approximately three feet off the eastern edge of the road; that the Buick was partly in the northbound lane and partly on the shoulder of that lane facing east; that the marks on the bank of the ditch indicated that the Rambler had been dragged about 15 feet in a southwesterly direction along the ditch; that the debris was scattered on the northbound lane and shoulder of the highway, and that there were skid marks in the northbound lane, which started about three feet from the center of the road and extended in an easterly direction 36 feet to the shoulder.

Linda Taylor was dead upon arrival at the hospital, and Seth Letus Smith died prior to the institution of this action.

Allen C. Joyner testified that he was riding in the front seat of defendant's car 'looking at a little book in my hand'; that he first saw the Smith vehicle when it was about 25 feet away 'on the line coming toward us'; that the automobile was occupied by a man and a woman sitting 'close together'; that the man was on the right side, and that he(Joyner) was rendered 'half unconscious' by the accident.

On cross-examination, Joyner first denied but later admitted that he had previously been convicted of a felony.He denied telling Trooper Slade that 'as we came out of the curve, we were running pretty fast'.In his rebuttal testimony, Trooper Slade stated that Joyner did make such a statement to him when questioned about the accident.

Jordan, the defendant, testified that he was traveling at a speed of about 40 miles an hour when he first saw the Smith vehicle approaching at a distance of 60 yards, and that it 'come on my side down the road and about twenty yards * * * he just like you cutting your wheel to come back and can't, and looked like he was trying to duck back and about the time Joyner said, 'Look out', I hit my brakes.'Jordan also stated that he observed a 'girl sitting close' to the driver of the Smith car.

On cross-examination Jordan was asked whether he recalled meeting an on-coming car (Pierce) immediately before the accident.He recalled that he had but it passed in a normal manner.Jordan stated that he did not notice the car change its speed or pull over to the shoulder of the highway.When asked why he was driving at a speed of 40 miles an hour in a 55 mile per hour zone, he replied that it was due to the 'heavy traffic' and because he was almost out of gas and was attempting to conserve fuel.Jordan also admitted that he had previously been convicted of a felony.

The defendant makes twenty assignments of error.In his first assignment, Jordan asserts that the trial court erred in refusing to grant a continuance because of the absence of the court reporter who had been engaged by William V. Hoyle, counsel for one of the uninsured motorist carriers defending the suit against him.

The testimony of Pierce and a portion of the testimony of Trooper Slade, as well as the incidents of trial which occurred before a reporter arrived, were reduced to narrative form, signed by Hoyle and counsel for plaintiff and certified by the judge.An additional certificate signed by the judge and attached to the narrative states 'that all parties are in agreement that (the) foregoing constitutes an accurate account of the proceedings up to the time the Court Reporter appeared, except as herein below noted:' The exception was that Hoyle recalled that when he renewed his motion for a continuance and moved for a mistrial during the examination of the witness Pierce, the court overruled his motions and stated In the presence of the jury that 'he did not want to hear any more about the Court Reporter not being present because it was Mr. Hoyle's fault that the Court Reporter was not there to start with'.The certificate further states: 'The Court refuses to certify that this occurred because there is nothing in the recollection of the counsel for the plaintiff, the recollection of the Court, or does anything appear in the record to substantiate the same.The Court recollects an instance of this nature occurring out of the presence of the jury.'

The trial judge at the conclusion of the testimony stated that his office was responsible for the absence of the court reporter rather than the office of defense counsel as initially believed by the court.

Jordan argues that a reporter had been retained to 'protect' the record and to prevent any misunderstanding as to what transpired, and that through no fault of his own the reporter was inadvertently dismissed by some person in the judge's office.He says that he narrative statement is 'necessarily generalized' and based upon recollections of parties which are imperfect.Hence, he says that because of inaccuracies in the narrative he was prejudiced by the court's action in refusing a continuance.

'The motion for a continuance is, of course, addressed to the sound discretion of the trial court and whether judicial discretion has been properly exercised depends upon the factual situation existing, the burden being upon the complaining party, * * * to point out the facts and to lay the finger upon the error.'Wansley v. Commonwealth, 205 Va. 419, 421, 137 S.E.2d 870, 872.See also4 Mich. Jur., Continuances, § 50, pp. 322, 323 and cases there cited.

Here, the trial court certified that the narrative was 'an...