Padgett v. Colonial Wholesale Distributing Co., 17410

• Decision Date: 09 April 1958
• Docket Number: No. 17410,17410
• Citation: 103 S.E.2d 265,232 S.C. 593
• Court: South Carolina Supreme Court
• Parties: S. P. PADGETT, Respondent, v. COLONIAL WHOLESALE DISTRIBUTING COMPANY, Appellant.

Page 265

103 S.E.2d 265

232 S.C. 593

S. P. PADGETT, Respondent, v. COLONIAL WHOLESALE DISTRIBUTING COMPANY, Appellant.

No. 17410.

Supreme Court of South Carolina.

April 9, 1958.

Boyd, Bruton & Lumpkin, Charles W. Knowlton, Columbia, for appellant.

Edens & Hammer, Terrell L. Glenn, Columbia, for respondent.

MOSS, Justice.

This is an action brought by S. P. Padgett, the respondent herein, against the Colonial Wholesale Distributing Company, the appellant, to recover damages for personal injuries sustained on November 26, 1955.

The complaint alleges that the injury to the person of the respondent was directly and proximately caused by the negligent, careless, willful and wanton acts of the appellant in the operation of its truck. The complaint alleges that the truck was being driven at a rate of speed excessive under the circumstances and in violation of the statute law of this State; that the driver of said truck failed to have and keep same under control and to keep a proper lookout; and in failing to operate said truck with that degree of care which a reasonable and prudent person would have exercised under the circumstances. The appellant's answer was a general denial.

The case was tried before the County Court of Richland County and resulted in a verdict for the respondent for actual and punitive damages. At appropriate stages of the trial, the appellant moved for a nonsuit, directed verdict, judgment non obstante veredicto, and alternatively for a new trial. These motions were refused by the trial Judge.

The questions raised by the motions so made are: (1) Was there evidence of negligence on the part of the appellant? (2) If there was evidence of negligence, were respondent's injuries proximately caused thereby? (3) Was there evidence of willfulness? (4) Are damages recoverable for shock, fright and emotional upset when there is no physical impact?

Within due time the appellant served notice of intention to appeal to this Court. The exceptions of the appellant raise the same questions as are above stated.

It appears from the testimony that the respondent resides on U. S. Highway No. 21, in Lexington County, on the left-hand side of the road going towards Orangeburg from Columbia. The respondent testified that at approximately seven o'clock in the evening on November 26, 1955, he was seated in the front room of his home watching a television program. Suddenly he heard a terrible noise and there was a jarring of the residence. He testified that he got up and went to the front door and opened it. He found a wholesale liquor truck lying against the house. He testified that the impact of the truck with the house 'broke off three or four of the asbestos shingles and knocked a hole on in through the wood'. He also testified that he was in the yard after the accident for about two hours, either with the officers investigating the accident or in helping clean up the debris in the yard.

The respondent also testified that it was very cold on the night of the accident and that he almost froze from being exposed to the elements. He testified also that on the day following the accident that he was 'taken to bed' and the latter part of the following week he commenced breaking out with a rash. He describes his condition in the following language: 'Well, I felt like I was in an ant bed. I just felt like I was in an ant bed. My skin swollen until it was so thick as a mule hide, all over my arms and my body and my back, and with all the rubbing and scratching I could do, I couldn't get any relief. I couldn't get no relief for it whatever. My wife and my children would rub and did the best to pacify me with all the scratching I could do, and with ice tags hanging on the outside of the house I was burning up with fever and perspiration. I was just burning up.' The respondent also testified that at the time of the accident he weighed 210 pounds and at the time of the trial his weight was between 140 and 145 pounds, and that he had no appetite and was unable to work. He also says that he never had any skin ailment or rash prior to the accident. He says that the accident frightened him so ghat he 'went all to pieces' and 'got so nervous'. The respondent testified that he went to several doctors for treatment of his skin ailment, and that some three months after the development of his trouble he went to a skin specialist. This specialist testified that he found the respondent suffering a generalized urticaria eruption and a neurodermatitis, involving the whole skin surface. This specialist also testified that from the history of the patient's case he found that a truck had run into his house, and from the shock of such incident he became very nervous. As a part of the history he found that the respondent had been exposed to the cold following the incident above described. He gave as his professional opinion that the shock and exposure were the cause of the respondent's skin trouble.

The appellant objected to and moved to strike out of the testimony the professional opinion of the physician on the ground that the emotional upset condition, shock and fright of the respondent could not be a basis of recovery unless there was tangible bodily injury inflicted upon him.

The driver of the truck of appellant was not available as a witness at the time of the trial. However, another employee of the appellant, who was riding in the truck at the time of the accident, did testify. He said that the panel delivery truck of appellant was returning from Charleston to Columbia, proceeding at about 50 or 55 miles per hour, on a straight stretch of highway. He further testified that a tanker truck, with other vehicles behind it, was approaching from the opposite direction. This tanker truck suddenly commenced a left turn to enter the yard of the respondent and stopped in the path of the panel truck of appellant, blocking the right lane in which the truck of appellant was traveling. He further testified that in order to avoid colliding with the tanker truck, that appellant's driver swerved off the road to his right in an attempt to avoid a collision with the tanker truck. He says that the rear panel door flew open and struck the front of the Padgett house. On cross-examination he testified as follows:

'Q. You were going about 55 miles an hour you say? A. Yes sir.

'Q. I believe that the truck speed permitted by the South Carolina law is 45 miles an hour, isn't it? A. Yes, sir.

'Q. Isn't that right? A. Yes, sir.

'Q. And you were going over the speed limit to start with, according to what you say, about ten miles an hour? That's right, isn't it? A. Yes, sir.

'Q. I believe there is a sign almost right there, or a little further back that says: 'Trucks 45, cars 55'. You've seen those driving your truck, haven't you? A. Yes, sir.'

The first three questions can be considered together by determining whether or not there was evidence of negligence and will-fulness proximately causing the injury to respondent.

The question of whether or not there was error in refusing appellant's motion for a nonsuit, directed verdict, judgment non obstante veredicto, and alternatively for a new trial requires us to consider the testimony and the reasonable inferences to be drawn therefrom in a light most favorable to respondent. Cannon v. Motors Ins. Corp., 224 S.C. 368, 79 S.E.2d 369; Fagan v. Timmons, 215 S.C. 116, 54 S.E.2d 536; Critzer v. Kerlin, 231 S.C. 315, 98 S.E.2d 761, and if the evidence is susceptible of only one reasonable inference, the question is no longer a question for the jury but one of law for the court, otherwise, the issue, or issues, becomes a question of fact for the consideration of the jury. Taylor v. Atlantic Coast Line R. Co., 78 S.C. 552, 59 S.E. 641.

The appellant asserts that its motion for a nonsuit should have been granted when made because the respondent produced no evidence of any negligence or willfulness on the part of the driver of the panel delivery truck. It is unnecessary for us to decide whether the witnesses in behalf of the respondent testified to any acts of negligence and willfulness on the part of the driver of appellant's panel delivery truck, because if there was a deficiency of evidence, the appellant through its witnesses, supplied on direct and cross examination such deficiency. We must apply the rule heretofore announced by this Court in Eargle v. Sumter Lighting Co., 110 S.C. 560, 96 S.E. 909, 911, where it was said:

'We have held in numerous cases that, even though a nonsuit should have been granted at the conclusion of plaintiff's testimony, yet, if the deficiency of evidence was supplied either on direct or cross examination of defendant's witnesses, either a nonsuit nor a directed verdict could be granted at the conclusion of all the testimony. It is immaterial from whose witnesses--whether plaintiff's or defendant's--the evidence in support of an element of damage or of the cause of action or defense may come. Either party has the right to make out or to strengthen his case or defense on the examination of the witnesses of his adversary. And even if the defendant's motion had been specifically for a nonsuit as to punitive damages, and it had been granted, nevertheless, if sufficient evidence to carry that issue to the jury had been brought out on direct or cross examination of defendant's witnesses, it would have been the duty of the court to submit it to the jury.'

The prima facie speed limit fixed by Section 46-362 of the 1952 Code of Laws of South Carolina permitted the operation of a motor vehicle at a speed of 55 miles per hour in the area where this accident occurred. However, it appears from the testimony that pursuant to Section 46-367 of the Code, the Highway Department had determined and declared a reasonable and safe prima facie speed limit of 45 miles per hour for trucks. Notice of such was given by the erection of an appropriate sign. It was admitted by the witness for the...