South Carolina State Highway Dept. v. Sharpe

• Decision Date: 16 May 1963
• Docket Number: No. 18071,18071
• Parties: The SOUTH CAROLINA STATE HIGHWAY DEPARTMENT, Appellant, v. W. K. SHARPE, Respondent.
• Court: South Carolina Supreme Court

Page 257

131 S.E.2d 257

242 S.C. 397

The SOUTH CAROLINA STATE HIGHWAY DEPARTMENT, Appellant, v. W. K. SHARPE, Respondent.

No. 18071.

Supreme Court of South Carolina.

May 16, 1963.

Daniel R. McLeod, Atty. Gen., J. McNary Spigner, Asst. Atty. Gen., Columbia, Francis R. Fant, Paul K. Rogers, Anderson, for appellant.

Watkins, Vandiver, Freeman & Kirven, Anderson, for respondent.

BUSSEY, Justice.

This is a highway condemnation case arising out of the acquisition in Anderson County of a portion of the right-of-way for the construction of the Interstate Highway designated as I-85. A trial de novo was held before his Honor Judge Spruill and a jury and upon this trial one of the attorneys for the landowner in his opening argument to the jury said:

'You should be fair to the landowner, to the state government, and to the Federal government.'

Counsel for the Highway Department objected to the reference to the Federal government. Thereupon, in the presence of the jury, landowner's counsel, in an effort to justify his statement and without awaiting a ruling said:

'It is common knowledge that the Federal government pays nine tenths of the verdict in these cases.'

Counsel for the Highway Department then repeated his objection and moved for a mistrial upon the ground that remarks of counsel were prejudicial to the Department. This motion was argued in the absence of the jury and overruled, following which the trial judge fully instructed the jury that the remarks of counsel for the landowner were improper and that the jury should disregard them.

After verdict for the landowner, a motion for a new trial was made by the Highway Department on the same ground, and overruled. In his order overruling the motion for a new trial, the court, inter alia, had the following to say:

'When the jury was called back it was instructed that counsel's statement was improper and that the members of the jury should disabuse their minds of any such consideration.

'In view of the case of Johnson v. South Carolina State Highway Department, 236 S.C. 424, 114 S.E.2d 591, there seems to be no question that counsel's argument was improper.'

The trial court then went on to point out that while the verdict was a liberal one, it was well within the limits justified by the testimony in behalf of the landowner, and that in the opinion of the trial court, the Highway Department had suffered no substantial prejudice by reason of counsel's statement.

The appellant, in support of its contention that the circuit judge should have ordered a mistrial, relies upon cases such as Horsford v. Carolina Glass Co., 92 S.C 236, 75 S.E. 533, wherein it has been repeatedly held that it is improper to bring to the attention of the jury the existence of liability insurance; arguing that it is just as prejudicial for it to be brought to the attention of the jury that the Federal government will participate in the payment of a verdict. Appellant also relies strongly on Johnson v. South Carolina Highway Dept., supra.

In the Johnson case the appellant landowner charged that the trial court committed error in refusing to allow evidence that the highway there involved was being financed by the U. S. Government. The holding of this court was simply to uphold the ruling of the trial judge in excluding the proffered evidence, the court saying that the sole question for determination was what compensation, if any, the landowner was entitled to for the taking of his property. The court there also said that the source of the funds for the payment of the verdict in the case was not an issue in the trial. Thus it will be seen that while the Johnson case is authority for the proposition that the argument or statements of counsel here were improper, that case was not concerned with whether the disclosure of Federal participation would constitute such prejudicial error as to warrant or require declaring a mistrial.

The precise question as to whether disclosure of Federal participation is prejudicial was involved in the recent Georgia case of State Highway Department v. J. A. Worley & Co., 103 Ga.App. 25, 118 S.E.2d 298, and we quote the following from the opinion in that case:

'The condemnor contends that the mention of the Federal government participating in the construction of the highway project automatically prejudiced the jury, and that they would therefore return a larger verdict than had the State alone been constructing the highway. Such argument is without merit for the jury consisted of texpayers to both the State and Federal governments. Whether the State or the Federal...