Powers v. Temple

Moss, Chief Justice

(dissenting) :

Finding myself not in accord with the opinion of Justice Bussey, I most respectfully dissent. In my view the appellant has failed to sustain her burden of showing that the errors complained of were prejudicial to her.

Sallie Turner Powers, the appellant herein, was a guest passenger in the automobile of Harry R. Temple, the respondent herein. The appellant instituted this action to recover damages for personal injuries alleged to have been proximately caused by the reckless, willful, wanton and grossly negligent acts of the respondent. The liability is governed by the guest statute, Section 46-801 of the Code. Under such statute a guest cannot recover against the owner and operator of an automobile for simple negligence but liability is restricted to those cases where the injury *166 has resulted from either intentional or reckless misconduct of the owner or operator of the motor vehicle. Elrod v. All, 243 S. C. 425, 134 S. E. (2d) 410 .

It appears from the record that the appellant sustained personal injuries on November 29, 1961, while she was riding as a guest in an automobile owned and operated by the respondent which collided with the rear end of a vehicle being driven by Mrs. Mazzie Nichols on U. S. Highway No. 76, some twenty miles east of the City of Columbia. The answer of the respondent contained a general denial, sole negligence and willfulness on the part of Mrs. Nichols, and contributory willfulness on the part of the appellant.

This case came on for tidal in the lower court before the Honorable C. Bruce Littlejohn, Presiding Judge, and a jury, and resulted in a verdict for the respondent. Thereafter, the appellant, on numerous grounds, made a motion for a new trial and from the order of the trial judge denying such motion, this appeal is prosecuted.

During the course of the trial testimony was admitted showing that the appellant had entered into a covenant not to sue with Mrs. Mazzie Nichols and had received $6,500.00 for the covenant. Testimony was allowed over the objection of the appellant that she had received her salary in the amount of $400.00 per month from her employer for a period of eleven months, during her period of disability as a result of her injuries. The record also shows that the appellant was covered by workmen’s compensation and it is inferable that she had received certain benefits under the act.

Justice Bussey has concluded that there was no error in allowing testimony as to the covenant not to sue and the amount received thereunder by the appellant. He also holds that the fact of workmen's compensation having been brought to the attention of the jury, that in fairness and to avoid any prejudice to the appellant, that the trial judge should have allowed the appellant to show that the com *167 pensation carrier rather than the appellant received the proceeds of the covenant not to sue. He states, however, that such failure on the part of the trial judge, standing alone, did not constitute reversable error. He does hold that allowing the respondent, over the objection of the appellant, to show that her salary in the total amount of $4,400.00 paid to her during her eleven months period of disability was clearly error on the part of the trial judge. He concludes that since the jury knew that the appellant was protected by workmen’s compensation benefits and in addition thereto she had received $6,500.00 for the covenant not to sue and wages from her employer in the amount of $4,400.00, making a total of $10,900.00, received in addition to workmen’s compensation benefits, there was a reasonable probability that the jury was influenced by such extraneous matter and agreed to a verdict for the respondent upon the ground that the appellant had already been substantially compensated for her injuries. He relies upon the authority of Entsminger v. Seigler, 186 S. C. 194, 195 S. E. 244 .

To justify a reversal because of improper admission of evidence, the appellant must show not only error in the admission of such evidence but also that she was prejudiced or that the verdict of the jury was probably influenced thereby. Gaskins v. Firemen’s Ins. Co., 206 S. C. 213, 33 S. E. (2d) 498 . This Court should not order a new trial where, from an examination of the record, it has no doubt the verdict of any fair jury would have been the same, even if no error had been committed. In such a case the error should be regarded as harmless and not prejudicial. Dennis v. Columbia Electric Street Railway, 93 S. C. 295, 76 S. E. 711 . It is my opinion that the appellant could not have been prejudiced by the admission of the evidence heretofore referred to however erroneous it may have been. Considering the evidence in this case on the question of liability, the respondent was entitled to the direction of a verdict in his favor had proper and timely motion therefor been made.

The alleged error in the admission of testimony related solely to the measure or quantum of damages. It is my *168 opinion that the only logical conclusion from the evidence in the record is that the appellant has failed to show any legal liability on the part of the respondent to her and, hence, the question of damages becomes immaterial and the admission of any erroneous evidence thereabout could not affect this question.

I now refer to the testimony in the record which, in my opinion, fails to establish any reckless misconduct of the respondent in the operation of the motor vehicle in which the appellant was riding as a passenger. The record shows that at the place where the collision occurred the maximum speed limit was sixty miles per hour. There was no testimony that the respondent was exceeding this speed limit and the appellant admitted that he was driving in a normally safe manner and there was not a thing unusual about the way he was driving. As a matter of fact, the appellant testified that she and the respondent were on their way to Columbia for a meeting scheduled for 7:30 P.M. and it was approximately 6:30 P.M. when the collision occurred and she said: “We had plenty of time to get to Columbia cause there was a sign that said 22 miles to Columbia.” She further testified that she had not complained in any fashion about the way the respondent was driving. She admits that the lights were on the respondent’s car at the time of the accident because it was dark, but whether such lights were on dim or bright she did not know. She further testified that she did not know whether the automobile with which the respondent collided had any lights on it or not, even though she saw it just before it was struck.

The highway patrolman, who investigated this collision, testified that at the scene of the accident he found the ■Chevrolet automobile driven by Mrs. Mazzie Nichols, and the Corvair automobile driven by the respondent, on the unpaved right shoulder of the road, both headed in the direction of Columbia and about 25 to 30 feet apart. This officer testified that he found skid marks leading up to respondent’s vehicle and estimated such to be about the length *169 of the Corvair automobile which he estimated to be “maybe 14 feet.” This officer testified that Mrs. Nichols admitted to him that she was traveling at a speed of between 30 and 35 miles an hour. He testified that the minimum speed at the point was 40 miles an hour.

The foregoing is all of .the testimony in the record given in behalf of the appellant, bearing on the issue of the liability of the .respondent. Such falls short of showing any reckless misconduct on the part of the respondent.

The record shows that the collision with which we are concerned took place about one-fourth of a mile from the Coronet Motel. One Douglas, the manager of the motel, a witness for the respondent, testified that a man in a very excited state, who identified himself as a minister, came into his office and asked that an ambulance ’ and the patrol be called. Douglas testified that this unidentified minister told him that he was coming towards Columbia and that he almost ran into the Nichols car, that he swerved and just missed it, and that he looked into his rear-view mirror and saw the car that had been following him strike the car that he had almost hit himself. I am in agreement with Justice Bussey that the foregoing testimony was admissible as a part of the res gestae.

The respondent testified that he and the appellant at the time of the collision were on their way to Columbia to attend a regional meeting of the Red Cross, and near the intersection of Highways 76 and 601, a distance of some 22 miles from Columbia, while he was traveling at a speed of less than 60 miles per hour, was in collision with the Nichols automobile. He testified that he did not see any lights on the Nichols car and that it just loomed up out of the darkness only a matter of feet in front of him. He said he had no warning of its presence. He immediately applied his brakes and swerved to miss the Nichols car but was unable to do so.

After reviewing all of the evidence in the record I conclude therefrom that the respondent was not guilty of *170 reckless misconduct in the operation of his automobile. Hence, there is no liability of the respondent to the appellant under the guest statute. Since I have concluded that there is no evidence of reckless misconduct on the part of the respondent, the appellant cannot recover in any event, and no other error is prejudicial.

I would affirm the order of the trial judge refusing a new trial in this case.