Young v. Warr

• Decision Date: 22 January 1969
• Docket Number: No. 18862,18862
• Citation: 252 S.C. 179,165 S.E.2d 797
• Parties: Richard J. YOUNG, Respondent, v. Rivers A. WARR, Sr., Administrator of the Estate of Rivers A. Warr, Jr., Appellant.
• Court: South Carolina Supreme Court

Page 797

165 S.E.2d 797

252 S.C. 179

Richard J. YOUNG, Respondent, v. Rivers A. WARR, Sr., Administrator of the Estate of Rivers A. Warr, Jr., Appellant.

No. 18862.

Supreme Court of South Carolina.

Jan. 22, 1969.

C. Dexter Powers, Wright, Scott, Blackwell & Powers, George W. Keels, Florence, Paul A. Sansbury, Darlington, for appellant.

James P. Mozingo, III, D. Kenneth Baker, Greer & Chandler, Darlington, Edward E. Saleeby, Hartsville, for respondent.

MOSS, Chief Justice.

This is an action instituted by Richard J. Young, the respondent herein, seeking damages for injuries sustained by him on December 30, 1964, near Weldon, North Carolina, when the station wagon automobile in which he was a passenger collided with the rear of a tractor-trailer truck on U.S. Interstate Highway No. 95. At the time of the collision the said station wagon automobile was being driven by Rivers A. Warr, Jr., who lost his life in the collision and, thereafter, his father, Rivers A. Warr, Sr. was appointed administrator of his said estate and, as such, he is the appellant herein.

The complaint alleges a cause of action based upon the negligence, recklessness, willfulness and wantonness of the appellant's intestate in the operation of the said station wagon automobile. The answer of the appellant asserted three defenses: (1) a general denial; (2) that the collision and the respondent's injuries were solely and proximately caused by the negligent, reckless and willful conduct of the driver of the tractor-trailer truck; and (3) that the respondent and the appellant's intestate and the other occupants of the automobile were all fellow employees of the Southeastern Reconditioning Center which was subject to the South Carolina Workmen's Compensation Act, and that by reason thereof the respondent was barred from bringing a common law action for damages against the appellant's intestate, his fellow employee.

This case came on for trial at the 1967 September Term of the Court of Common Pleas for Darlington County before The Honorable W. L. Rhodes, Jr., Presiding Judge, and a jury. During the trial counsel for both parties agreed that the appellant's third defense, concerning the Workmen's Compensation Act, presented an issue to be decided by the court rather than the jury, and all testimony and evidence relating to such defense were submitted to the presiding judge in the absence of the jury. After hearing the testimony with reference to the third defense, the presiding judge granted the respondent's motion to strike such from the appellant's answer.

At appropriate stages of the trial the appellant made timely motions for a nonsuit and directed verdict. These motions were refused by the trial judge and the case submitted to the jury which returned a verdict in favor of the respondent and against the appellant for $500,000.00 actual damages. Following the verdict, appellant made motions for a new trial absolute, a new trial Nisi and for judgment Non obstante veredicto. The motions for a new trial absolute or for judgment Non obstante veredicto were denied by the presiding judge but he ordered that a new trial be granted unless the respondent, within ten days, remitted the sum of $100,000.00 of the aforesaid verdict in writing on the record of the case. The respondent filed his remittitur of the sum of $100,000.00 within the time limit. The appellant then gave timely notice of his intention to appeal to this court from the judgment and order of the lower court.

In his appeal, the appellant charges that the trial judge erred in refusing his motions for nonsuit and directed verdict and judgment notwithstanding the verdict or for a new trial absolute on the ground that the only reasonable inference to be drawn from the evidence is that the accident was solely and proximately caused by the negligence and recklessness of the driver of the tractor-trailer truck. The exception posing the aforesaid question was not argued in the brief of the appellant and this court considers such to be abandoned. Field v. Gregory, 230 S.C. 39, 94 S.E.2d 15; and Kolb v. Nash, 245 S.C. 25, 138 S.E.2d 417.

The appellant urges that the trial court erred in refusing his motions for judgment Non obstante veredicto or for a new trial absolute upon the ground that the amount of the verdict was so excessive as to indicate bias, prejudice, caprice, arbitrariness or misapprehension on the part of the jury.

The trial judge granted the motion of the appellant for a new trial Nisi by reducing the verdict of the jury by requiring the remission of the sum of $100,000.00. Our decisions hold that to warrant a trial judge in reducing an excessive verdict by granting a new trial Nisi it is not necessary that he find the verdict to be so excessive as to indicate that it was a result of prejudice, caprice or passion or other consideration not founded on the evidence. Where the verdict is deemed excessive by the trial judge, in the sense that it indicates merely undue liberality on the part of the jury, the trial judge alone has the power, and with it the responsibility, of setting aside the verdict absolutely or reducing it by the granting of a new trial Nisi. Gray v. Davis, 247 S.C. 536, 148 S.E.2d 682. It is only when the verdict is so grossly excessive and the amount awarded so shockingly disproportionate to the injuries as to indicate that the jury was moved or actuated by passion, caprice, prejudice, or other consideration not founded on the evidence that it becomes the duty of this court, as well as of the trial court, to set aside the verdict absolutely. Ray v. Simon, 245 S.C. 346, 140 S.E.2d 575. A verdict which may be supported by any rational view of the evidence and bears a reasonable relationship to the character and extent of the injury and damage sustained, is not excessive. Watson v. Wilkinson Trucking Co., 244 S.C. 217, 136 S.E.2d 286.

The respondent, at the time of his injury, was a young man twenty-three years of age with a statutory life expectancy of 47.64 years. He had been married at that time approximately six months. He was a high school graduate and had completed 3 1/2 years in the United States Navy and was in an advanced electronic school where he ranked at the top of his class. He was earning $345.00 a month plus the various additional benefits of service personnel with comparable status. The respondent was an intelligent and industrious young man with a bright future for the enjoyment of life and with a substantial future earning capacity. The injury he sustained was to his spine in the lumbar area, resulting in permanent paraplegia. As a result of the injury sustained he was hospitalized from December 1964 until October 1965. An attempt to learn to walk with the use of braces and crutches was a failure and 'phantom pain' developed in his lower limbs which will apparently be present for the balance of his life. The respondent will be permanently confined to a wheel chair. The respondent, as a result of his injury, has lost complete and permanent control of his bladder and bowel functions with all attendant inconvenience, embarrassment and hardship that such brings. The respondent has permanently lost all ability for sexual function, and it will be impossible for him ever to be the father of any children or have marital relations. The mental anguish, depression and frustration suffered by the respondent will continue all of his life. He will need periodic examinations and treatment for the balance of his life. He will need someone with him in the nature of a companion or practical nurse at all hours of the day and night. The pecuniary loss to the respondent is substantial and the intangible losses, such as pain and suffering, mental anguish, depression and the loss of social and business activities because of his physical condition is evident.

The trial judge found that the verdict in this case was not against the weight of the evidence nor was it the result of passion, caprice, prejudice or misapprehension on the part of the jury of either the facts or the law. We have carefully considered the entire record in this case and agree with the trial judge that in view of the injuries sustained by the respondent it is not logical to conclude that the size of the verdict in this case was so excessive as to indicate that the jury was moved by passion or prejudice or other considerations not founded on the evidence. It is our conclusion that the court below was correct in refusing to grant a new trial absolute or for judgment Non obstante veredicto on the ground stated.

The next question for consideration is whether the trial judge committed error in refusing appellant's motions for directed verdict, judgment notwithstanding the verdict or for a new trial absolute on the ground that the respondent and appellant's intestate were fellow employees of Southeastern Reconditioning Center, or of a subcontractor thereof, subject to the South Carolina Workmen's Compensation Act, and in striking such defense from appellant's answer.

In the cases of Nolan v. Daley, 222 S.C. 407, 73 S.E.2d 449, and Powers v. Powers, 239 S.C. 423, 123 S.E.2d 646, we held that an employee, subject with his employer to the provisions of the Workmen's Compensation Act, whose injury arises out of, and in the course of his employment, cannot maintain an action at common law against his co-employee, whose negligence caused the injury. It is the position of the appellant that the respondent and his intestate were fellow employees of Southeastern Reconditioning Center and that the rule in the cited cases should be applied. It is the position of the respondent that he was acting as an independent contractor at the time of his injury and is, therefore, not precluded from maintaining this common law action against the appellant.

The courts have found great difficulty in laying down any hard and fast rule in determining whether the relationship of independent contractor has been...