Watts v. Bell Oil Co. of Ocean Drive, Inc., 20151

CourtUnited States State Supreme Court of South Carolina
Citation266 S.C. 61,221 S.E.2d 529
Decision Date21 January 1976
Docket NumberNo. 20151,20151
PartiesHerbie Franklin WATTS, Administrator of Estate of David Aubrey Watts, Respondent, v. BELL OIL COMPANY OF OCEAN DRIVE, INC., Appellant.

Burroughs, Green, Sasser & Hudson, Conway, for appellant.

Grimes, Hinds & Cowan, Georgetown, for respondent.

RHODES, Justice:

This wrongful death action resulted in a jury verdict against the defendant-appellant, Bell Oil Company of Ocean Drive, Inc., for $100,000 actual damages. Bell Oil's motion for a new trial was denied by the lower court and it has appealed. We affirm.

The sole issue on appeal is whether the admission of certain testimony was erroneous and prejudicial.

Plaintiff-respondent, H. F. Watts, is the administrator of the estate of the deceased, David Watts, who was killed when he was struck by a truck belonging to and driven by an employee of Bell Oil. At the trial, the truck driver testified that he struck the deceased while attempting to avoid a collision with an oncoming vehicle which had pulled out from a service station.

Plaintiff presented three witnesses who were in cars parked at the service station. Each witness testified that no vehicle pulled out from the service station or was on the highway (other than Bell Oil's truck) at the time of the accident. The accident occurred along a curved section of the highway on a clear day during daylight hours.

The only other witness was a South Carolina Highway Patrolman who investigated the accident. Plaintiff's counsel asked the patrolman the following question: 'Were you able to locate anyone who saw this vehicle?' The question was objected to on the ground that it called for hearsay testimony. The lower court overruled the objection, and the patrolman answered '(n)o sir.'

The question of whether the patrolman's testimony was hearsay is controlled by Johnson v. Finney, 246 S.C. 366, 143 S.E.2d 722 (1965). In Johnson, we held that testimony of an investigating patrolman as to whether he was able to locate an eyewitness who saw defendant's car strike the plaintiff was inadmissible as hearsay. Thus, the lower court erred in overruling Bell Oil's objection to the question asked the patrolman.

However, in order for us to order a new trial based on the erroneous admission of the patrolman's testimony, the record must show not only error but also prejudice. Timmons v. Tricentennial Comm., 254 S.C. 378, 175 S.E.2d 805 (1970). 'Ordinarily, the admission of incompetent evidence having some probative value upon a material issue of fact in the case is presumed to be prejudicial.' S.C. State Hwy. Dept. v. Graydon, 246 S.C. 509, 144 S.E.2d 484, 485 (1965). This presumption has failed in cases where the issue of fact was undisputed. Lamb v. Southern Ry. Co., 86 S.C. 106,...

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7 cases
  • State v. Mizell
    • United States
    • South Carolina Court of Appeals
    • July 20, 1998
    ...both error and prejudice. Howard v. State Farm Mut. Auto., Ins. Co., 316 S.C. 445, 450 S.E.2d 582 (1994); Watts v. Bell Oil Co., 266 S.C. 61, 221 S.E.2d 529 (1976). See also State v. Greene, 255 S.C. 548, 180 S.E.2d 179 (1971) (error without prejudice is not basis for granting new trial); S......
  • State v. White
    • United States
    • South Carolina Court of Appeals
    • December 21, 2006
    ...and not harmless. See State v. Sosebee, 284 S.C. 411, 326 S.E.2d 654 (1985) (probable prejudice must be shown); Watts v. Bell Oil Co., 266 S.C. 61, 221 S.E.2d 529 (1976) (prejudice must be "Whether an offer of improper evidence requires a reversal depends upon the character and importance o......
  • State v. Goolsby
    • United States
    • South Carolina Supreme Court
    • June 24, 1980
    ...see also cases collected in 7A West's South Carolina Digest, Criminal Law at Key Number 1169(1); Watts v. Bell Oil Company of Ocean Drive, Inc., 266 S.C. 61, 221 S.E.2d 529 (1976); and the testifying witness was fully cross-examined by appellant's counsel. State v. Evans, 202 S.C. 463, 25 S......
  • Powers Const. Co., Inc. v. Salem Carpets, Inc.
    • United States
    • South Carolina Court of Appeals
    • October 8, 1984
    ... ... v. Southern Bell Tel. & Tel., 276 S.C. 663, 281 S.E.2d 469 (1981) ], we have no doubt that ... See 5A C.J.S. Appeal & Error § 1724 at 923 (1958); Watts v. Bell Oil Co. of Ocean ... Drive, Inc., 266 S.C. 61, 221 S.E.2d 529 ... ...
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