Vaughan v. Southern Bakeries Company

• Decision Date: 10 November 1965
• Docket Number: Civ. A. No. 8456.
• Citation: 247 F. Supp. 782
• Parties: Bruce K. VAUGHAN, Jr., Plaintiff, v. SOUTHERN BAKERIES COMPANY, a corporation, Defendant.
• Court: U.S. District Court — District of South Carolina

247 F. Supp. 782

Bruce K. VAUGHAN, Jr., Plaintiff, v. SOUTHERN BAKERIES COMPANY, a corporation, Defendant.

Civ. A. No. 8456.

United States District Court D. South Carolina, Charleston Division.

November 10, 1965.

J. D. Parler, St. George, S. C., and Gedney M. Howe, Jr., Charleston, S. C., for plaintiff.

Charles H. Gibbs, Charleston, S. C., for defendant.

ROBERT W. HEMPHILL, District Judge.

Defendant moves for a new trial and judgment non obstante veredicto upon the jury's award of $69,420.00 to plaintiff in a personal injury action.

The first basis of defendant's motion is:

that the only reasonable inference to be drawn from the evidence in the entire case was that the plaintiff himself was guilty of contributory negligence and even wilfulness by admittedly proceeding into a dangerous intersection without exercising any care or caution when he actually saw and knew that the defendant's truck was approaching from his left and was not stopping and the driver thereof looking in the opposite direction and that the plaintiff, notwithstanding, proceeded into the intersection after he knew the defendant's vehicle was or would momentarily be in a position of obvious peril and danger.

It is uncontradicted that both vehicles were traveling at very slow speeds at the time of impact because the intersection in question is marked with every imaginable warning device, with defendant having the additional "warning" of a large STOP sign. The evidence was that defendant's truck slowed-down considerably while approaching the STOP sign, but did not stop.

Defendant claims the only reasonable inference is that plaintiff was guilty of contributory negligence as a matter of law. His argument fails.

Plaintiff had the right, under all the circumstances, to proceed through the intersection where he had the right-of-way. It was apparent that defendant's driver was in a position to see the warning devices, that he was in fact slowing down to a negligible speed as he approached the intersection, and plaintiff could reasonably conclude that the mandate of the STOP sign would be obeyed.

As Judge Wyche recently pointed out in Kirkland v. United States, 241 F.Supp. 198, 200 (W.D.S.C.1965):

A motorist on a preferred highway is entitled to assume that a vehicle approaching on a secondary highway will stop for the intersection, unless he has knowledge of the absence of the sign, or he is otherwise put on notice that the vehicle on the intersecting street is not going to stop. Eberhardt v. Forrester, 241 S.C. 399, 128 S.E.2d 687. (Emphasis in original.)

Judge Simons concluded similarly in Murphy v. Smith, 243 F.Supp. 1006, 1010 (E.D.S.C.1965).

As the South Carolina Supreme Court decided less than two months ago in Beverly v. Sarvis, S.C., 144 S.E.2d 220, 223:

It is a well settled rule in this state that every traveler on the highway, in the absence of any circumstances which would reasonably put one on notice to the contrary, is entitled to assume, and to act upon the assumption, that others using it in common will observe the law and exercise reasonable care. Of course, this assumption, to which Sarvis was entitled, did not relieve or excuse him from exercising due care for his own safety, as well as that of others, but, in determining whether or not he was guilty of any failure to exercise such due care, his conduct has to be judged in the light of the assumption to which he was entitled.

Giving the plaintiff the most favorable view of the evidence, to which he is entitled as a matter of law, he cannot be adjudged to have engaged in contributory negligence as a matter of law.

Defendant's grounds for the alternative new trial motion are:

(a) that the verdict was so excessive as to indicate that it was based on or the result of bias, passion, caprice or other considerations not founded on the evidence, including the existence of liability insurance protecting the defendant; and

(b) that the Trial Judge should have directed a mistrial when the defendant's driver injected into the case the existence of liability insurance protecting the defendant.

The subject of insurance will be considered first. "Insurance" was mentioned during the trial by the driver of defendant's truck. Neither "liability insurance," nor the identity of the insurance company was explored or made clear. On cross examination, the driver was asked:

Q. Well you did talk to Officer Reynolds after this tragedy, didn't you?

A. Yes sir.

Q. And I want to be as fair to you as I can. Think back. Didn't you tell him that you must have run the STOP sign? Didn't he charge you with it?

A. He charged me with failing to yield the right-of-way.

MR. GIBBS: Your Honor, is he asking what this man was charged with?

Q. And what was your answer?

A. Sir?

MR. GIBBS: What did you ask him? What he was charged with?

I don't think that is competent.

MR. HOWE: Well, what I am getting at is based on what he told him.

Q. Didn't you agree with him that you had done that?

A. I probably agreed with him that I was in the wrong. I don't know. But as far as running the STOP sign, I don't think that I did that, because I had stopped at that crossing many a time before.

Q. Yes, sir, but we are talking about this morning.

A. Yes, sir.

Q. And you did agree with him that you were at fault, didn't you?

A. Well at the time, it had knocked me out of the seat and I was kind of shook up then, and I don't know, I may have agreed with him that I might not have stopped, but I don't think so.

Q. Well, as a matter of fact, didn't you later go by and see little Mrs. Vaughan's father? Didn't you stop by his home and discuss it with him?

A. We stopped by there the next day to get some information, some insurance information that the company wanted. The sales manager was with me.

MR. GIBBS: Your Honor, I wonder if you would excuse the jury.

THE COURT: Yes, sir.

(Jury leaves the courtroom)

THE COURT: All right, Mr. Gibbs.

MR. GIBBS: If your Honor please, I always regret that something like this happens.

THE COURT: Yes, sir.

MR. GIBBS: I am not sure how realistic this jury is, and I hate to be in the position of throwing away two days' effort and involving a lot of people.

THE COURT: Yes, sir.

MR. GIBBS: This witness has mentioned the existence of insurance, and I would like to tell you that I had cautioned him in my office on more than one occasion, and told him "Do not mention it."

THE COURT: You are not moving for a mistrial at this time, are you?

MR. GIBBS: For the record I think I would like to move for a mistrial. I am half-hearted about it.

THE COURT: All right.

MR. GIBBS: I mean, honestly, I don't think it is my fault. I had cautioned him about it.

THE COURT: I am sure it wasn't your fault, and the witness isn't versed in the terms of the law. And of course it wasn't Mr. Howe's fault.

MR. GIBBS: No, sir, I didn't mean that at all.

MR. HOWE: It wasn't in response to my question.

THE COURT: Let me look at this Pardue case just a minute. I remember Judge Bonham wrote that concurring opinion in Pardue vs. Pardue 167 S.C. 129, 166 S.E. 101 and he said in part:

"From such state of facts every intelligent juror on that panel knew before any question was asked that defendant was protected by indemnity insurance."

I am of the opinion, if you want me to, I will be glad to instruct the jury now, or if and when the case goes to the jury, I can instruct them then. I don't think that the error at this time is of such magnitude or of such information as to warrant granting a mistrial. He hasn't said indemnity insurance. He just said some insurance information. Wasn't that his phraseology?

MR. GIBBS: Yes, sir.

MR. HOWE: Yes, sir. It could have been collision coverage.

THE COURT: This is that old case where a wife sued her husband under the guest statute, Pardue vs. Pardue, 167 S.C. 129, 166 S.E. 101-104, and the part about insurance is not in the main opinion that was written by Justice Carter, at which I am not particularly surprised, but the Supreme Court of South Carolina went on to say:

"The Court will take notice that in this day of the use of automobiles, many owners of such machines carry insurance to indemnify them for damages claimed of them for any injuries inflicted by their cars. From such state of facts every intelligent juror on the panel knew before any question was asked that defendant was protected by indemnity insurance."

I can do one of two things. I can let it go, which means that I won't emphasize it. I can tell that jury something and take the risk of emphasizing it.

I don't want to put you on the spot, but I will take your advice without putting you on the spot. I will listen to you, rather, and then I will decide what I think is best.

MR. GIBBS: If your Honor pleases, in fairness to my client, I have to make the motion.

THE COURT: I understand that, sir. I am going to refuse the motion at this time. The question in my mind is whether or not justice will best be served by my mentioning the fact to the jury and saying "Disregard it." And maybe they might think that I am emphasizing it. Or not mentioning it. I think I can make it pretty plain to them that that is not an issue in this case, if you want me to.

MR. GIBBS: Personally, I think the less said about it, your Honor, the better it is. The more you try to correct it, the more you emphasize it.

THE COURT: Yes. That is like when you send a jury out and bring them back and re-charge them on some little something, you some times risk emphasizing it. I agree with you.

MR. GIBBS: I waited a couple of minutes before I interrupted the proceedings, because I was trying to hide what I was thinking about.

THE COURT: I understand. Well, I won't mention it, but in the general charge I will emphasize very strongly that nothing outside of here is to be considered.

What about it, Mr. Howe?

MR. HOWE: Your Honor, it just wasn't in response to my question.

THE COURT: Well it has happened to everybody else who has ever tried a case. I mean, you just can't help it.

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