Turner v. Am. Motor-ists Ins. Co

• Decision Date: 15 May 1935
• Docket Number: No. 14064.,14064.
• Citation: 180 S.E. 55
• Parties: TURNER et al. v. AMERICAN MOTOR-ISTS INS. CO.
• Court: South Carolina Supreme Court

180 S.E. 55

TURNER et al.

v.AMERICAN MOTOR-ISTS INS. CO.

No. 14064.

Supreme Court of South Carolina.

May 15, 1935.

Appeal from Common Pleas Circuit Court of Greenville County; Wm. H. Grim-ball, Judge.

Action by T. C. Turner and another, administrators of the estate of T. M. Turner, deceased, against the American Motorists Insurance Company. From a judgment for the plaintiffs, the defendant appeals.

Reversed and complaint dismissed.

Haynsworth & Haynsworth, of Greenville, for appellant.

J. G. Leatherwood and W. E. Bowen, both of Greenville, for respondents.

BONHAM, Justice.

The appellant corporation issues to its members accident insurance policies which provide for the payment of $1,000 to the estate of the policyholder upon his death, if it result from external, violent, and accidental means, only if such injuries are sustained "while driving or riding in an automobile." The complaint alleges that while T. M. Turner was riding in an automobile he met his death by accidental means by being thrown therefrom.

The answer denied this allegation of the complaint and alleged that the policy of insurance specifically provided that, "A. This policy shall not cover: (11) For any accident sustained while entering or leaving an automobile, " and that the injuries to decedent occurred while he was stepping from and leaving an automobile.

It is conceded in argument that the sole question to be decided is, in general terms, Did T. M. Turner suffer the injuries which caused his death while riding in an automobile, or when he stepped from it?

The case was tried by Judge Grimball and a jury at Greenville. At the conclusion of the taking of the testimony, the defendant moved that a verdict be directed in its favor on the ground that the only reasonable inference to be deduced from the evidence was that Turner was injured as he stepped from the automobile, which class of in jury was directly excluded from the provisions of the policy.

His honor denied the motion (see pages 49 and 50 of the transcript) saying:

"The Court: The difficulty with this case is this, the two propositions, one is the fact that in our state we have what is called the scintilla rule, if there is a scintilla of evidence to go to the jury our Supreme Court is going to say, as it has said in numbers of other cases, that the case ought to go to the jury; and I am inclined to think that in this case that is just what there is, a scintilla; then the second difficulty in the case on this motion is the plain tendency of our Supreme Court in insurance cases to hold the insurance companies to liability. I have decided quite a few cases on these motions and I think almost invariably the Supreme Court has reversed the cases that I decided.

"I remember that I had one in Anderson where the policy of insurance provided for sick benefits in case of a disease necessarily confining one to his bed. The disease in question did not necessarily confine him to his bed. I granted the motion for directed verdict and the Supreme Court said that 'necessarily confining to bed' meant 'substantially confining to bed, ' reversed the case and sent it back. Then I had another insurance case over there in Anderson, Fowler; I tried to follow the Supreme Court to the best of my knowledge and they reversed that. And one or two others. Now, I am trying to figure what the Supreme Court would do with this case; I am inclined to think that they would say that I ought to have left the case to the jury on this testimony, if there is a scintilla, and, therefore, I am going to refuse the motion and leave the case to the jury."

The jury found for the plaintiff. This appeal followed.

The appellant labors under the erroneous idea that the Supreme Court has overruled the pronounced principle, to wit, if there is any relevant testimony, amounting to a scintilla, it must be left to the jury to determine its force and effect. The meaning of the rule is that there must be some evidence arising out of the testimony which elucidates the issues of fact, and which enables the jury to form an intelligent conclusion. It does not authorize the admission of speculative, theoretical, and hypothetical views. It does not set asidethe rule of force in this state relating to res ipsa loquitur, which doctrine does not prevail in this state.

In the case of Taylor v. Railway Co., 78 S. C. 552, 556, 59 S. E. 641, 643, this court said: "A scintilla of evidence is any material evidence that, if true, would tend to establish the issue in the mind of a reasonable juror." (Italics added.)

Whilst adhering to the scintilla rule, this court has recognized a rule supplemental to the scintilla rule, which is thus propounded in the case of National Bank v. Thomas J. Barrett, Jr., & Co., 173 S. C. 1, 174 S. E. 581, 582: "If it be conceded that there may be deduced by a process of unusual finesse of reasoning that there is a scintilla of evidence * * * neverthe-less there is another rule, more founded upon common sense and reason, to the effect that when only one reasonable inference, not just one inference, but one reasonable inference, can be deduced from the eviden, it becomes a question of law for the court, and not a question of fact for the jury."

In the case of City of Chester v. National Surety Co., 91 S. C. 17, 74 S. E. 37, 39, that sound jurist, Mr. Justice Hydrick, delivering the opinion of this court, said: "There was no issue as to any matter of fact--at least as to any fact about which more than one reasonable inference could be drawn. Therefore, the court properly directed the verdict." (Italics added.)

In the case of Bushardt v. United Investment Co., 121 S. C. 324, 113 S. E. 637, 639, 35 A. L. R. 637, Mr. Justice Marion, likewise a sound and learned jurist, said: "Under the well-settled rule, if only one reasonable or legitimate inference can be drawn from the evidence, the question is one of law for the court." Citing Ford v. Kelsey, 4 Rich. 365.

This declaration is but to say that the scintilla of evidence upon which a case should be sent to the jury must be real, material, and pertinent and relevant evidence, not speculative and theoretical deductions.

In order to determine the cardinal issue in this case, we must analyze the evidence contained in the record. To properly understand it, a brief history of the occurrence leading up to the tragic moment is necessary.

Medlin was driving a bus usually used for taking children to school. On the day in question, when he reached the house of the deceased, T. M. Turner, the only persons in the automobile were Mrs. Redding and her six year old son. Mr. Turner was standing beside the road, stopped the car, and asked who killed his dog, to which Medlin said the man in the car just ahead of him. Turner had a claw hammer in his hand; he asked Medlin to catch the fellow in the truck who had run over the dog, and boarded Medlin's automobile. Medlin pursued the truck. Just as he passed it, Turner either fell from or stepped from the car and suffered the injuries from which he died.

For the plaintiff, Dr. Wilson described the wounds and injuries suffered by Turner; Homer Medlin, W. D. Fortner, and Byrd Hunt testified as to the condition of the car, the manner in which the door was opened. T. C. Turner testified to the fact of the appointment of himself and W. H. Turner as administrators in lieu of their mother. W.. H. Turner testified in reply to and in contradiction of Mrs. Redding.

The plaintiffs had no eyewitnesses to the movements of Turner at the fatal moment. Their theory is that the door of the automobile was tricky, could be opened by the sudden violent action of the car, and by one taking hold of the lever; that just as Medlin's car passed the truck he was following, Turner got up and took hold of the lever which opened the door, that just then the car swerved, stopped suddenly, and precipitated him out of the car.

The door was on the right-hand side of the driver. Medlin testified, in chief, that when Turner got on the bus he sat right next to the door; was traveling at a rate of 30 or 35 miles an hour when he passed the truck; just as the front of his bus passed the truck, Mr.Turner reached up and pulled the door open. "I told him not to pull the door open till I stopped"; after that "the only thing I saw the door flew open and he was done gone out"; stopped in about three lengths of my car; was traveling about 30 or 35 miles "when he took hold of the lever that pulled the door open"; slackened his speed "just a little bit" when Turner took hold of the lever; was fixing to stop. The door opened by a big lever in a round circle, you had to take the lever like that and pull it open; the tie rod was about 3 feet from the lever; from the lever tothe door was about 3 feet; the door opened pretty easy; did not see Mr. Turner any more as he pulled the lever and the door flew open.

On cross-examination, he said: When you pull the lever, the door will open; if you do not pull the lever and pushed against the door you could not push it open; if a grown man fell up against it, it would not fly open. You can not make it open till you take the lever and pull it around; this door did not come open accidentally, Mr. Turner meant to open it. Turner had the claw hammer in his hand just as he got up and opened the door; "just as he went to pull the lever and I told him not to pull it, and that is the last I saw of him"; did not know Turner was going to step off till witness stopped; took his eyes off of him then; do not know how he stepped off, whether with his right or left foot; there is no question that Mr. Turner deliberately opened the door, it did not come open accidentally.

This witness, Medlin, was recalled for further cross-examination. He was asked:

"After Mr. Turner stood up and opened that door did you do anything in the way of a sudden jerk of (or?) sudden slapping on of the brakes too quickly; did you do anything of that sort that could have thrown him out that door?"

He ans...