Norton v. Ewaskio

• Decision Date: 11 February 1963
• Docket Number: No. 18026,18026
• Court: South Carolina Supreme Court
• Parties: John A. NORTON, Respondent, v. Athanasius E. EWASKIO, Appellant.

Page 517

129 S.E.2d 517

241 S.C. 557

John A. NORTON, Respondent, v. Athanasius E. EWASKIO, Appellant.

No. 18026.

Supreme Court of South Carolina.

Feb. 11, 1963.

J. Edwin Belser, Jr., Columbia, for appellant.

Edens & Hammer, Whaley & McCutchen, Columbia, for respondent.

TAYLOR, Chief Justice.

This is an action to recover damages alleged to have been sustained by plaintiff, John A. Norton, as a result of the negligence and willfulness of the defendant, Athanasius E. Ewaskio, in the operation of his automobile.

The case was tried before the Honorable Legare Bates, Judge of the Richand County Court and a jury, on November 6, 1961, which resulted in a verdict for plaintiff in the amount of $310.00 actual damages and $3,440.00 punitive damages and defendant appeals.

Early in the morning of January 25, 1960, the two vehicles driven by plaintiff and defendant collided at the intersection Gervais and Main Streets in the City of Columbia. Gervais Street runs east and west and Main Street runs only to the north of Gervais Street at this point. The State Capitol is located immediately to the south.

Plaintiff, a 79 year old night watchman returning home from work, was proceeding easterly on Gervais Street. Defendant, a Catholic Monk belonging to the Slaves of the Immaculate Heart of Mary, a Monastery located at St. Benedict's Center, Stillriver, Mass., was proceeding in a westerly direction on Gervais and was attempting to turn left into the State House parking area, reserved for State employees only, which is immediately south fo the intersection of Gervais and Main Streets. Traffic at this intersection is controlled by traffic lights which indicate by green arrows the movement of traffic. Testimony is to the effect that when a green arrow is indicated for traffic going east on Gervais Street, straight ahead and left turn green arrows appear simultaneously for traffic going west on Gervais Street. This was apparently the condition of the lights at the intersection at the time of the accident. Plaintiff was proceeding directly across the intersection at the time of the accident. His testimony was to the effect that he stopped at the intersection awaiting the green arrow to proceed. When the green arrow appeared, he started forward and defenant's car making a left turn suddenly appeared in front of him causing the accident. Defendant testified that he was stopped at the intersection in the left hand lane awaiting the signal to turn left in order to park in the State House parking lot. He was unaware that this was a restricted parking area as this was his first time in Columbia. He further testified that when he saw the left turn arrow appear, he turned left but was unable to enter the parking area as there were pedestrians in the crosswalk. He stated that he came to a complete stop and that he saw plaintiff's car proceeding toward him approximately 40 yards or 120 feet away, that he was still in this position when plaintiff's car collided with his car. Plaintiff further testified that after the accident and while standing at the scene he became chilled and later developed pneumonia.

Prior to the trial date, defendant moved for a continuance which was denied by the trial Judge, and defendant's first exception alleges error in so doing in that said motion was based on the absence of a material witness. The witness in question was a member of the police department of the City of Columbia at the time of the accident, but at the time of trial was a member of the armed forces stationed in Germany. The motion was made informally before Judge Bates in Chambers, and there is no indication in the record that there was compliance with Rule 27 of the Circuit Court Rules. A motion for a continuance based on the ground of the absence of a material witness is addressed to the sound discretion of the trial Judge, and it is well settled that the trial Judge's ruling will not be disturbed unless it be shown that there was an abuse of discretion. See 6 S.D. Digest, Continuance, Section 21 et seq. In instant case there has been no showing that the trial Judge abused his discretion in denying the motion for a continuance, and this exception is overruled.

The second exception charges error in refusing to order a mistrial when the fact that defendant was protected by liability insurance was inadvertently injected into the trial. One of defendant's witnesses, Brother Hugh McIvey, after testifying as to a certain conversation immediately after the accident, testified on direct examination as follows:

'Q. Did you have any further conversation with Mr. Norton?

'A. Yes, I did. I said to Mr. Norton that we were going to carry on our missionary work throughout the South and that God would bless him very much if he would let this in the hands of the insurance company and let it be settled in that manner and Mr. Norton agreed to that.'

The trial Judge noted and refused defendant's motions and instructed the jury to disregard any reference to insurance. We are of opinion that there was no error in the trial Judge's ruling. The answer was responsive to inquiry made by defendant's own counsel, and the fact that it was made by his witness on direct examination is a strong factory to be considered by the trial Judge in ruling on such motion.

In Vollington v. Southern Paving Construction Co., et al., 166 S.C. 448, 165 S.E. 184, the defendant on direct examination mentioned insurance. This Court in holding there was no error in absence of a motion for a mistrial or nonsuit stated, '* * * the plaintiff should not be penalized for that for which he was in no wise responsible.'

In Brazeale v. Piedmont Manufacturing Co., 184 S.C. 471, 193 S.E. 39, the defendant's witness on cross-examination mentioned an insurance agent, the answer nor being responsive to the question asked. The defendant requested a mistrial which was refused. This Court in upholding the trial Judge's ruling stated, '* * * Where improper reference is made to insurance, or an insurance agent, by the witness, as was here done, and for which the plaintiff is not responsible, it seems that the only remedy that the Court can give is to grant a motion to strike out the objectionable testimony and to instruct the jury to disregard it. * * *'

In McLeod v. Rose, 231 S.C. 209, 97 S.E.2d 899, defendant's witness on cross-examination mentioned the insurance adjuster. Defendant moved for a mistrial which was denied and the jury instructed to disregard the answer and any mentioned of insurance. This Court held the line of cases holding it error to refuse a mistrial where plaintiff's counsel deliverately injects information to the effect that the defendant has liability insurance are not applicable. The same reasoning applies in instant case, in that here the defendant's witness on direct examination and in response to the question propounded mentioned insurance.

The defendant next alleges that the Court erred in not charging that Section 46-306(4)(a), Code of Laws of South Carolina, 1952, was controlling under the facts...