Pardue v. Pardue

• Decision Date: 05 October 1932
• Docket Number: 13483.
• Parties: PARDUE v. PARDUE.
• Court: South Carolina Supreme Court

166 S.E. 101

167 S.C. 129

PARDUE v. PARDUE.

No. 13483.

Supreme Court of South Carolina

October 5, 1932

Appeal from Common Pleas Circuit Court of Edgefield County; C.J Ramage, Judge.

Action by Mrs. Clara E. Pardue against W. A. Pardue. From a judgment for plaintiff, defendant appeals.

Affirmed.

J. S Bussey, Jr., of Augusta, Ga., Hendersons & Salley, of Aiken and S. M. Smith, of Edgefield, for appellant.

J. W Thurmond, J. Strom Thurmond, and T. B. Greneker, all of Edgefield, for respondent.

CARTER J.

This action, which was commenced in the court of common pleas for Edgefield county, January 15, 1931, is a suit by Mrs. Clara E. Pardue, as plaintiff, against the defendant, W. A. Pardue, who is her husband, for the purpose of obtaining judgment in the sum of $5,000 for personal injuries alleged to have been caused directly and proximately by the heedlessness and recklessness of the defendant, on the 24th day of August, 1930, under the following circumstances: The plaintiff, on said date, August 24, 1930, was invited by her husband, defendant herein, to take an automobile trip with him from their home in Edgefield county, this state, to Greenville, S.C. When they reached a point about two miles of Laurens, S. C., they discovered a puncture in the left rear tire. The defendant proceeded to drive on until he could find a convenient place to change the tire. He stopped on the left side of the road near a garage at a negro house, took the tools from under the front seat, jacked up the car, and changed the tire, and then let the car down, placed the tools under the front seat, and went off behind the negro house to a well to wash his hands. After the defendant left, the plaintiff got into the front seat, and as she did so, the car began to roll backwards. Whereupon, the plaintiff, becoming frightened, attempted to get out of the car while it was in motion, and she either fell or was knocked down by some portion of the car and "the end of the bone of her left arm, where it enters into the socket of the left shoulder, was fractured and dislocated, and she was otherwise bruised." The specific allegations of negligence were as follows:

"(a) The defendant when he left said car to wash his hands knew that the plaintiff intended to get in the car at once and failed to notify her that the slightest jar was liable to start it and cause it to run backwards down the hill, and knew, too, that the plaintiff did not know how to operate the car, or to stop it.

"(b) The defendant left the car on the steep slope aforesaid, without brakes and out of gear and knew the plaintiff was in the act of getting in the car, and failed to notify her not to get in the car until he returned.

"(c) In failing to apply the emergency brake before leaving said car and in not scotching it so as to hold it and make it safe until he returned."

In his answer to the complaint, the defendant admitted that the plaintiff was his wife and that he and she are residents and citizens of Edgefield county, said state. He also admitted that on or about the date alleged, August 24, 1930, he invited the plaintiff to ride with him from their home in Edgefield county to Greenville, S. C., and that on said trip the plaintiff was injured, but the defendant denied that "the plaintiff was injured through any acts of negligence, carelessness, recklessness, heedlessness or wantonness on the part of the defendant." The defendant further alleged that whatever injuries the plaintiff received at the time and place mentioned "were the direct and proximate result of her own negligent, careless, wilful, wanton, heedless and reckless acts in the following particulars:

" (a) In that the plaintiff attempted to alight from the automobile in question while it was in motion, and when it was perfectly plain and obvious that if she had remained thereon no harm or damage would have befallen her.

"(b) In that the plaintiff placed herself in the way of the open and protruding door of the moving car, thereby placing herself in a position of obvious danger, when, if she had remained in the car, no injury would have occurred.

"(c) In the manner of alighting from said car the plaintiff so improperly handled herself as to cause herself to fall to the ground, and thereby causing herself to receive whatever injuries she may have suffered from the fall, and

"(d) In that the plaintiff failed to exercise due care and caution to observe that the automobile was in a position whereby it might start or move from its position if she boarded the same, and in carelessly, heedlessly and recklessly jumping from said automobile while in motion."

The defendant, further, interposed the plea of contributory negligence, carelessness, and willfulness; and also alleged that if the plaintiff's alleged injuries were not due entirely to her own acts of negligence, recklessness, and willfulness, as above alleged, as the proximate cause thereof, or if her said acts of negligence, willfulness, etc., as alleged in defendant's answer, did not contribute to the bringing about of the said injuries, as a proximate cause thereof, then the said alleged injuries of the plaintiff were due entirely to an accident for which the defendant is not responsible.

The case was tried at the July (1931) term of said court, before Judge C.J. Ramage, and a jury, resulting in a verdict for the plaintiff in the sum of $1,750, and from the judgment entered on the verdict the defendant has appealed to this court, presenting thirteen exceptions, under which error is imputed to the trial judge.

The first exception imputes error to his honor in refusing defendant's motion for a continuance of the case, based upon the ground that just before entering into the trial of the case, and when the clerk was listing the jury, in the presence of the thirty-six jurors, who had been drawn to serve for the week, in open court, and the presiding judge inquired if any of the jurors were related by blood or marriage to the plaintiff or defendant, the following occurred:

"Mr. J. Wm. Thurmond: We would like to ask if any juror is an agent of an insurance company.

"Mr. Bussey: We object to that and move for a continuance.

"The Court: I overrule it.

"Mr. Bussey: We move for a continuance of the case until the next term of the Court on account of the announcement of counsel about an insurance company when there is no insurance company a party to this suit: it will be prejudicial and not proper to bring that into the case.

"The Court: I think the jurors in Edgefield County are competent men, and I instruct them to pay attention to nothing but the evidence and not the remarks of counsel.

"Mr. Thurmond: Now, if your Honor please, I never say anything about insurance companies except I wanted to know if there was any agent--there might be some juror who is an agent, and if so it is perfectly competent for me to ascertain it; I am not divulging a thing, but it is competent for me to inquire--

"The Court: If any juror has been prejudiced by anything that has been said I would like for him to stand up and I will let him off.

"The Defense: Since the last remarks of counsel, we would like to renew the motion on the same ground.

"The Court: All right, the motion is overruled, and I am sure the jurors will be governed entirely by the evidence and the charge of the Court, and not by remarks of counsel; I tell them that now."

It is a recognized rule that motion for continuance is a matter largely within the discretion of the trial judge, and unless it clearly appears that the trial Judge abused his discretion in refusing the motion this court will not interfere. We fail to see wherein the trial judge abused his discretion in passing upon the motion in question. In fact under our view of the case, the occurrence in court to which we have called attention,...