Opinion
13279
November 18, 1931.
Before MAULDIN, J., Laurens, November, 1930. Affirmed.
Action by O.D. Parker against Louise Simmons and another. From a judgment for plaintiff, defendant appeals.
The charge of the Circuit Court is as follows:
As you have already heard by the reading of these pleadings which you will have before you, this is an action brought by O.D. Parker who is the plaintiff against Louise Simmons and a certain Buick Sedan of a certain number and bearing a certain license number as defendants. The action is one, gentlemen of the jury, in tort we call it. In other words the plaintiff complaining by his pleading here charges that thing which we know in law as a tort or a wrong. He says in this complaint that the defendant was guilty of conduct which is indicated as negligent conduct, reckless conduct, or as is also stated there as carelessness in conduct. The plaintiff says that by reason of that conduct so characterized by the plaintiff in his pleading that he has suffered damages to his person, that by reason of the conduct indicated in this complaint which he charges against the defendants in this case that he has directly and proximately suffered certain injuries or damages. He charges that that conduct was of such a character as to entitle him if established to that character of damages which we call actual damages, and he also contends or charges in this complaint that the defendant was guilty of that character of conduct which according to his contention would entitle him to recover at your hands against this defendant that other character of damages which we recognize as punitive damages. He asks a recovery at your hands against this defendant in actual and punitive damages in the sum of Three Thousand Dollars predicated upon charges of conduct which he charges against the defendant and indicates as negligent, careless and reckless conduct.
Now, gentlemen, so much for the contention of the plaintiff, so much for the allegations of the complaint. When you go to your room you will have the pleadings. I ask you, in order that your minds be fully refreshed, that you first read the complaint and after you shall have read the complaint take up the answer of the defendant and read that.
What does the defendant answering these charges set forth in this complaint plead? First she pleads a denial of all of the material allegations set forth in the complaint. As to the material allegations of this complaint about which you will concern yourselves, there is a general denial. By that I mean all of the essential contentions of the complaint are put in issue by the denial of this answer. What further does the defendant plead? She pleads that if this plaintiff was injured he was injured or his injury was due to his own negligence. She further says by way of pleading, this defendant says that the plaintiff was guilty of that character of conduct which she characterizes as, legally speaking, contributory negligence. She pleads further by way of defense that plea which we recognize as contributory recklessness.
You will have to bear with me a little longer than I desire to have to talk to you in order to explain what I mean as I conceive the law. First you want to know what is this thing we call negligence which is charged here against this defendant. This plaintiff in this complaint charges not only that thing which we recognize as common-law negligence, but the plaintiff charges that this defendant did violate the statutory law of this State with reference to conduct of an individual upon the public highway, and says that by reason of that the defendant was guilty of negligence as a matter of law, negligence per se, as we call it. We will understand more about that later.
What is negligence? Negligence is the failure to exercise due care. The law enjoins upon every individual, you and me and every individual each in our conduct with reference to anybody else, the duty of exercising due care under all of the circumstances attending our activities, and the failure to exercise that due care which the surrounding circumstances justly require is called negligence, and if one is injured by reason of that negligence, if that negligence itself, that failure to exercise due care under the circumstances is the direct cause of bringing about some injury or damage to the person of another, then that negligence we call actionable. If one is injured due directly and proximately to the negligence of another, he can come into Court and assert his rights and recover against another predicated upon that negligence as the direct cause of his injury. Negligence in order to be actionable negligence, in order to support an action at law, such as this is, must be shown to have been the direct and proximate cause of the injury complained of. A pleader comes into Court and grounds his claim for recovery upon allegations of negligence, he is bound by his pleading, he must show to the satisfaction of the jury that the things which he charges as negligence were negligent and that those things so charged were the direct and proximate cause of any such injury as he may have sustained.
What do we mean by direct and proximate cause? It simply means that cause to which an injury as complained of may be directly attributed to the exclusion of any other intervening cause other than that which is alleged in the complaint to which it might be attributed. If one suffers an injury and says it was due directly and proximately to certain things then the one who comes into Court and seeks to recover on that wrong must show that the thing he alleges was wrong and that wrong was the direct and proximate cause of his injury.
Gentlemen of the jury, having defined to you commonlaw negligence, I tell you that negligence is negligence wherever you find it and in whatever class it may fall. If the Legislature has said you and I must conduct ourselves in a certain way in the public highway in the operation of an instrumentality, if we violate that law the law says that the very fact of the violation is itself negligence, it is negligence per se, negligence as a matter of law, negligence because the law says we must conduct ourselves in a certain way, and if we fail to do it inadvertently or consciously, we are guilty of a wrong and if that wrong is the direct and proximate cause of an injury to somebody else we are responsible for it.
So much for the definition of negligence. This plaintiff is seeking to recover not only actual damages he claims to have suffered in his person directly and proximately from an alleged wrong, he is asking you to award him actual damages predicated upon that alleged wrong, he says that the wrong was characterized and he does characterize it as negligent conduct and as reckless conduct.
What is the difference between negligence and recklessness? I have defined negligence to you, and I will try to define that term used here as recklessness. What is the difference between negligence and recklessness? They are both indicative of some character of conduct. They are descriptive of conduct so far as our consideration of it is concerned. Negligence being simply the failure to exercise due care under all of the circumstances, I say to you that recklessness is the conscious failure to exercise due care. I may be engaged in some activity, driving a wagon, rolling a wheelbarrow, riding a horse, or driving an automobile, I may not be giving that due attention to it that I ought to, I may not be exercising that due care which the law says I must exercise, if my conduct is so characterized we call that negligent conduct. If I should proceed in that conduct whatever I am doing with reference to another, to the point that I become conscious that I am not exercising that due care which the law says I must exercise, if I am conscious of it and continue in it and know that I am not exercising due care, I have passed beyond the realm of simple negligence and gone into that realm which we recognize as reckless, wanton or willful, they are related terms. This plaintiff charges this defendant with recklessness, a conscious failure to exercise due care.
Why this definition as to the meaning of the terms negligence on the one hand and recklessness on the other? This plaintiff is asking a recovery at your hands of both actual damages and punitive damages. Punitive damages is that character of damages which the law places in the power of a jury to award against one who consciously does a wrong to another, the purpose and object of which is to punish one who recklessly, wantonly or willfully does a wrong to another, punish him through the medium of the civil Court and by that punishment set an object lesson so that others may be deterred from conducting themselves that way.
Actual damages are the damages that directly flow from a negligent act, and actual damages may flow from a willful act, they may flow from a negligent act, they are damages which you gentlemen of the jury in the consideration of the facts of the case can identify as actually having followed from the transaction, if they did so follow from a wrongful act. They are damages which are capable of measurement and expressing in dollars and cents as indicative of your measurement of any wrong or damage that one has suffered by reason of a wrong. Punitive damages are, as the words mean, damages which the petit jury may award by way of punishment for its deterring effect and for its object lesson, it is punishment through the instrumentality of the civil Court.
The plaintiff comes into Court and grounds his claim for recovery against this defendant upon charges of negligence and recklessness, he comes bearing the burden of showing you by the evidence in the whole case that he has made out his contention in its essential elements by that evidence and by the greater weight of the evidence. The burden is upon him because he asserts his right to recover affirmatively against this defendant, and the burden is to the extent that he must show you by the greater weight of the evidence that he has made out his contention and that he is entitled to recover by the greater weight of the evidence. Not by the overwhelming greater weight, but by that weight of the evidence which would warrant a jury in saying after due deliberation, after weighing it, would warrant you in saying that the greater weight obtains in behalf of the plaintiff who asserts the affirmative. Weigh it not by number of witnesses, weigh it by the credit which you attach to it after having heard it delivered from the stand. That evidence maps out the road to which you are to travel to a verdict. You are in search of the truth to express in your verdict, and to be indicated as a result of your deliberations, after you weigh the evidence and find where the greater weight lies.
I have defined common-law negligence and common-law recklessness. When I say common law, I mean that law which has crystallized through usage of hundreds of years in this country irrespective of any statute. The common law which we inherited from the old country and which has for its life custom. It is the law and it is obligatory on us to observe it. On the other hand we speak of statutory law and by that I mean the law which is promulgated after having run through the mill of the legislature and have been crystalized into a statement of the rules for our government and guidance, the acts of the Legislature, the laws made by the General Assembly. Where the General Assembly has passed a statute and promulgated that statute and that statute is of force and that statute seeks to govern us in our conduct on the public highway, when the law seeks to govern us in our conduct, if that law is violated we are guilty of negligence by reason of the violation of that law, negligence as a matter of law, you heard it expressed negligence per se, negligence in itself. If one recklessly violates the law of the land which seeks to govern us in our conduct, if we consciously violate it we are guilty of not only negligence but we are guilty of that character of conduct which is indicated as recklessness as a matter of law. That is what the plaintiff charges, negligence and recklessness under the common law and negligence and recklessness by reason of the charge in this complaint of violation of the statutory law.
I will read you Section 581 of Volume 2 of the Code of 1922.
(At this point his Honor read to the jury Section 581 of Volume 2 of the Code of 1922, and same will be added to this transcript at this point.)
In this connection I invite your attention to the reading of Section 584 of Volume 2 of the Code of 1922; I will read you the whole section.
(At this point his Honor read to the jury Section 584 of Volume 2 of the Code of 1922, and same is to be added to this transcript at this point.)
Now gentlemen, having stated so much of the law of the land, the statutory law seeking to regulate conduct upon the public highway, the violation of that law is negligence, negligence per se, within itself it is negligence. The conscious violation of it proceeds beyond that characterization which I have indicated as simple negligence and goes into the realm of recklessness or willfulness.
The defendant says by her answer here that she denies that she was negligent or reckless and denies that any such conduct on her part was the proximate cause of any injury sustained by this plaintiff. She says that if the plaintiff sustained any injury or damage to his person it was due to his own negligence. She says that if he sustained any injury it was not her fault, it was not her negligence or recklessness that caused it, but that his own negligence caused it. And further than that she says by way of defense and plea of contributory negligence that while she denies that she was guilty of negligence as she is charged here, yet she says even if she was guilty at the time of negligence as charged against her, yet she says that the plaintiff himself was guilty of negligence and that if it had not been for the negligence of the plaintiff combining and concurring with the negligence which is charged against her and contributing to the injury complained of as the proximate cause of that injury it wouldn't have happened. That is what she means by the plea of contributory negligence. She says, that while I deny that I was negligent, yet if I was negligent you, the plaintiff, was negligent also, and if it had not been that your negligence combined and concurred with the negligence you charge against me and contributed to the injury as a proximate cause of the injury it wouldn't have happened. If you had not been negligent and contributed to that injury it wouldn't have happened, your negligence combining with mine. Contributory negligence is an affirmative defense, by the same measure of proof that it takes to establish negligence by the plaintiff against the defendant, by the same measure does it take to establish contributory negligence by the defendant against the plaintiff.
Where contributory negligence is made out, where the plea of contributory negligence is made out by the evidence and by the greater weight of the evidence it is a complete bar to any recovery predicated upon charges of simple negligence, but contributory negligence is not a bar to recovery for willfulness, for a willful act. Contributory negligence is not a bar to a recovery for a reckless act. This defendant pleads contributory recklessness and by that plea she says that while I deny that I was reckless, yet I say if I was reckless or negligent at that time, yet by my plea of contributory recklessness I say you, the plaintiff, was also reckless and if it had not been for your recklessness combining and concurring with that recklessness which you charge against me and contributing to the injury as a proximate cause it wouldn't have happened.
Contributory recklessness is an affirmative defense; in order to establish it it must be made out by the evidence and by the greater weight of the evidence. I say to you that contributory recklessness is a complete bar to charges predicated upon charges of recklessness. I say to you that if an injury has its origin in negligence on the one side and negligence on the part of the other side, the two come together combining and concurring, and there is only negligence involved, the law says that one offsets the other, the law leaves them where it found them. Proximate cause meets proximate cause. If an injury has its origin in recklessness on the one side and also on the other side, recklessness in the plaintiff and defendant, and the two combine and concur to produce the injury, the one offsets the other. Contributory negligence doesn't offset recklessness. Contributory negligence on the part of the plaintiff doesn't offset recklessness on the part of the defendant. But contributory recklessness does offset recklessness. Proximate cause meets proximate cause. If an injury has its origin in the negligence of the plaintiff and the defendant, then proximate cause meeting proximate cause. If an injury has its origin in the recklessness of the defendant and in the contributory negligence of the plaintiff there would be no proximate cause meeting proximate cause. Because contributory negligence is not a bar to recovery for a reckless act. If the plaintiff was guilty of contributory recklessness that would bar a recovery predicated on recklessness on the part of the defendant as charged.
I think that practically states all of the law necessary to be stated here in so far as a proper explanation of that law applicable to the issues requires. It remains for you to decide the issues, you decide it according to your oaths by the law and by the evidence. Under the Constitution of this State and under our system of jurisprudence you are the sole judges of the facts, whatever facts are developed in the trial of any given case. I am prohibited from stating the evidence to you. I can't state to you what the witnesses said, I can only state to you the law. You heard the testimony and it is for you to say, and the responsibility for any verdict is upon you in so far as that evidence is concerned. Witnesses have gone on the stand, they have sworn to tell the truth, all of the truth and nothing but the truth. That is what you are after. You are not bound to believe everything that you hear fall from the lips of witnesses. When I say that I make no reference to any witness, I say it is your function, you are not bound to believe everything you hear if you don't think it reconciles itself to your conviction as to what the truth is, and that is said with all deference to every witness. You are the sole judges of the facts. If there is anything that has developed here in the nature of testimony that you can't reconcile with your conviction as to what the truth is, eliminate that from the case and go forward and rest your verdict upon such evidence to which you can accord the sanction of the truth.
If you find that the plaintiff is entitled to recover under the law and under the evidence, actual damages, that is damages of that character that I have described as measurable, tangible, and capable of being identified as having flowed out of this transaction, go forward and determine whether or not the plaintiff is entitled to recover that other character of damages which we call punitive. If you find that the plaintiff has made out his case by the greater weight of the evidence, and that the defendant has failed to establish her plea of contributory negligence or contributory recklessness, if you find that the plaintiff has made out his case by the greater weight of the evidence, write your verdict for such an amount as you find. If you find that the plaintiff is entitled to recover actual damages go forward and say whether or not he is entitled to recover that other character of damages. The form of your verdict would be: "We find for the plaintiff so many dollars," writing it out in words and not in figures, "actual damages." And if you find that he is also entitled to recover punitive damages, go forward and say, "and so many dollars punitive damages," and sign your name as foreman. You are not bound to find punitive damages unless you think the evidence warrants it, you are not bound to find actual damages unless you think the evidence warrants, because you are trying this case according to the law and evidence.
If you find that the plaintiff has failed to make out his case either as to actual or punitive damages by the greater weight of the evidence, or if you find that the defendant has established her plea of contributory negligence or contributory recklessness in the way and manner and by the measure of the law, if you find that the plaintiff ought not to recover, that the defendant has made out her plea of contributory negligence or contributory recklessness, either or both, as you think the evidence justifies you in saying your verdict would be for the defendant. In the event you don't award the plaintiff anything, you write it this way: "We find for the defendant."
Mr. Wilson: Defendant's counsel asked you to charge in regard to the admission of some testimony.
You are sworn to try the case according to the law and the evidence. That is the evidence as to this case, and there is no evidence as to this case except that which was admitted here as competent evidence, which is the subject of your consideration. If there is any evidence offered here which the Court has ruled out as incompetent, gentlemen, leave that out of your consideration in this case. Disregard it and rest your verdict on that evidence and that evidence alone which is admitted here as competent. Because the Court is responsible for the law, the Court is responsible and will answer for any error it will make. The Court can't answer for any error that the jury may make.
Mr. R.E. Babb, for appellant, cites: Reference to indemnity insurance improper: 120 S.C. 285; 92 S.C. 505; 125 S.C. 442. Circumstances under which party warranted in not observing statutory provisions: 115 S.C. 497; 116 S.C. 44; 124 S.C. 57.
Messrs. Blackwell, Sullivan Wilson, for respondent, cite: Testimony as to insurance immediately stricken out not prejudicial: 127 S.C. 505; 121 S.E., 369.
November 18, 1931. The opinion of the Court was delivered by
This action, commenced in the Court of Common Pleas for Laurens County, 1930 (the exact date is not stated in the record), by plaintiff, O.D. Parker, against Louise Simmons and one Buick sedan, motor No. 5923, license No. D-1065, defendants, is for recovery of damages, actual and punitive, alleged to have been sustained by the plaintiff on account of an automobile collision, alleged to have been caused by the negligent, reckless, and careless acts of the defendant Louise Simmons, November 1, 1929, in driving and operating the said Buick sedan, the other defendant herein. The defendants, by their joint answer, interposed a general denial as to all of the material allegations of the complaint; alleged that the plaintiff's injuries were the result of his own negligence; and also set up the defense of contributory negligence, contributory recklessness, and willfulness. The case was tried at the November, 1930, term of said Court before his Honor, Judge T.J. Mauldin, and a jury, resulting in a verdict for the plaintiff for the sum of $150.00 actual damages and $350.00 punitive damages. From the judgment entered on the verdict the defendants have appealed to this Court.
Appellant presents several exceptions, but, as agreed by counsel, there are only three questions raised. Adopting the language of counsel for appellant, the first question presented may be stated thus: "Whether error was committed in refusal to declare a mistrial and to grant a new trial on the ground that testimony regarding liability insurance and arguments and statements of respondent's attorney, in reference thereto, in the presence of the jury were injected into the case."
It is true, indemnity insurance has no legal bearing on this case, and if the record disclosed that the trial Judge admitted such testimony in the trial of the case it would be ground for reversal. However, such is not the case. The following is what transpired regarding this question, while the plaintiff was testifying:
"Q. Did you have any conversation with her immediately after the collision? A. No, sir. I went to the doctor and I didn't see her any more that day.
"Q. The next day did you see Miss Louise Simmons? A. Yes, sir.
"Q. Where was that? A. At her home.
"Q. Did you have any conversation there with her? A. Yes, sir.
"Q. What was that conversation? A. I went to ask her about the damages, she said she was going to get a blank that afternoon to fill out for the insurance company —
"Mr. Babb: I object.
"Court: What was said with reference to this alleged collision would be competent. I don't know what she said. The question of insurance is not for that jury to consider. Anything she may have said with reference to this alleged transaction in all right, but not with reference to any alleged insurance.
"Mr. Wilson: He asked her about the damages to his car and that was her reply.
"Mr. Babb: We object to any testimony in regard to any insurance.
"Mr. Wilson: We withdraw that question.
"Court: The jury is not concerned about any insurance."
So far as we are able to ascertain from the record, this is all that transpired regarding insurance, and, in our opinion, it is not a ground for reversal. As we view the case, the trial Judge made a proper ruling on the matter and properly instructed the jury regarding the same. We are therefore unable to sustain the appellant's contention, and the exceptions raising this question are overruled.
The second question raised by the exceptions is: Was there error in the Judge's charge in reference to negligence and recklessness?
In disposing of this question we deem it sufficient to state that an examination of the entire charge, which will be reported with the case, convinces us that the trial Judge, in charging the jury on the question of negligence and recklessness, was fair to the defendants and they have no cause for complaint.
The third question stated by appellant's counsel, as being raised by the exceptions, is: Was there error in the Judge's charge in failing to read Section 582 of Volume 2 of the Code of 1922 to the jury in connection with the reading of Section 581 thereof?
This Section, 582, reads as follows: "Upon approaching a crossing of intersecting public highways, or a bridge, or a sharp curve, or a steep descent, and also in traversing such crossing, bridge, curve or descent, a person operating a motor vehicle shall have it under control, and operate it at the rate of speed no greater than six miles an hour, and in no event greater than is reasonable and proper, having regard to the traffic then on such highway and the safety of the public."
This section was not applicable to the case. The collision did not occur at a crossing, or intersection of a public highway, or at any other place described in the said section of the Code, and said section was, therefore, not applicable to the case. Furthermore, the defendants made no request to charge this provision of the law, or any other provision of the law, or principle. Appellant's contention cannot be sustained.
The exceptions are overruled, and the judgment of the lower Court affirmed.
MR. CHIEF JUSTICE BLEASE and MESSRS. JUSTICES COTHRAN, STABLER and BONHAM concur.