Keller v. Pearce-Young-Angel Co.

• Decision Date: 01 December 1969
• Docket Number: No. 18988,PEARCE-YOUNG-ANGEL,18988
• Citation: 253 S.C. 395,171 S.E.2d 352
• Court: South Carolina Supreme Court
• Parties: Benjamin KELLER, Respondent, v.COMPANY, Appellant.

Page 352

171 S.E.2d 352

253 S.C. 395

Benjamin KELLER, Respondent, v. PEARCE-YOUNG-ANGEL COMPANY, Appellant.

No. 18988.

Supreme Court of South Carolina.

Dec. 1, 1969.

Belser & Kemmerlin, Columbia, for appellant.

Cromer & Louthian, Columbia, for respondent.

BUSSEY, Justice.

The respondent, Benjamin Keller, was injured while a passenger in a truck owned and operated by his brother, Raymond Keller, which truck was involved in a collision with a truck of appellant. The two brothers instituted actions against the appellant, which actions were tried together by consent, the jury returning a verdict in favor of Raymond Keller in the amount of $1,500.00, and a verdict in favor of Benjamin Keller in the amount of $1,000.00. Appellant was obviously satisfied with the verdict in the Raymond Keller case, as it appeals only in the Benjamin Keller case.

The sole ground of appeal is the contention that the trial judge should have granted a mistrial because 'during the trial of the cases, in response to a question by his attorney, which did not seek, however, to solicit such information, Raymond Keller interjected the liability insurance of the defendant into the case.' The trial judge denied a timely motion for a mistrial, but strongly admonished the jury to disregard the mention of insurance by Raymond Keller.

The only portion of the testimony contained in the record before us is the following question and answer which immediately preceded the motion for a mistrial.

'Q. Did the loss of your truck and the loss of your tools cause you to lose any time or any money in the work on these houses in Lexington until you were able to get a replacement truck and buy this other equipment?

'A. I would say that it caused me to lose quite a bit because I didn't have the proper tools to do the work with and I couldn't afford to go out and buy more and I didn't have transportation to get around to these jobs. I mean, I would have to haul lumber and different things like that and I didn't have no truck and I called this insurance adjuster, I imagine it was, for Pearce-Young-Angel and he was suppose to come over * * *.'

In denying the motion the trial judge pointed out that today 'nearly everybody knows that nearly everybody has got insurance.' He additionally stated, 'I am sure this man did not do this deliberately. It was just a slip of the tongue. * * *'

Appellant's brief refers to Raymond Keller as a witness for the respondent Benjamin Keller. While no doubt Raymond Keller offered testimony favorable to Benjamin Keller, while upon the stand, his inadvertent mention of insurance occurred in the course of testimony in his own behalf, rather than in behalf of Benjamin Keller. There is nothing whatever in the record to remotely suggest that the respondent Benjamin Keller was either directly or indirectly responsible for the inadvertent reference by Raymond Keller to insurance.

We are inclined to agree with the statement of the trial judge that now 'nearly everybody knows that nearly everybody has got insurance.' It is, of course, today a matter of common knowledge that a vast majority of the motoring public is protected by liability insurance. While such knowledge provides neither excuse nor justification for intentionally or deliberately injecting liability insurance into the trial of a case, still such knowledge is, we think, a matter for consideration in determining the likelihood or probability of prejudice to a litigant as a result of insurance having been inadvertently mentioned.

It is the settled law of this State that, as a general rule, a motion for a mistrial, because of anything occurring during the trial, is one addressed to the sound discretion of the trial judge, whose ruling thereabout will not be disturbed in the absence of an abuse of discretion amounting to an error of law. See cases collected in West's South Carolina Digest, Trial, k No. 18. In the instant case, the trial judge found that the mention of insurance by Raymond Keller was not done deliberately and that such was a slip of the tongue, and indeed,...