Horsford v. Carolina Glass Co. , 92 S.C. 236 ( 1912 )

The first opinion was delivered by

Mr. Chief Justice Gary.

This is an action for damages, alleged to have been sustained by the plaintiff through the wrongful acts of the defendant, while he was employed to work in its glass factory.

The allegations of the complaint, material to the questions involved, are as follows:

“That on or about the 6th day of May, 1910, plaintiff was in the employ of the defendant, in the blowing room of its said factory, and was by defendant’s manager, ordered to do certain work, in the blacksmith'shop of said factory, to wit: to assist in placing a belt on the pulley which operates the air compresser, in said blacksmith shop, the belt being around a small pulley, which was operated by an electric motor, which pulley was revolving rapidly; plaintiff, together with other workmen, was ordered to put said belt around the larger pulley, which operated the air compresser.

“That said belt was too short or tight, to be operated on said pulleys, and upon its being placed around, or nearly around said large pulley, it was violently thrown therefrom, and violently struck this plaintiff on the face and head, and knocked him senseless to the floor, and the small pulley continuing to revolve at a great speed, caused said belt to beat and whip this plaintiff all over his person, bruising and battering him from head to foot.

“That the aforesaid injuries and damage to the plaintiff, were caused by the careless, negligent, reckless, wilful and wanton conduct of the defendant.

“In failing to furnish plaintiff a safe place to work, and in requiring him to work at, and endeavor to place a belt around two pulleys, one of which was revolving rapidly.

“In failing to furnish plaintiff safe appliances with which to work, and furnishing plaintiff a belt which was too tight or too short, to be operated with safety.

“In ordering and requiring plaihtiff, to put said belt on said pulleys, when defendant knew, or should have known, that it was too tight and dangerous to operate.

“In ordering and requiring plaintiff and other employees, to place said belt on said pulley, while one of said pulleys was in motion.”

The defendant denied the allegations of negligence and recklessness, and set up the defenses of contributory negligence, and assumption of risk.

The defendant made a motion for a nonsuit, which was refused. It also requested his Honor, the presiding Judge, to direct the jury to find a verdict in favor of the defendant, which request was also refused.

The jury rendered a verdict in favor of the plaintiff for $12,500.

The defendant made a motion for a new trial, which was refused, except in one particular. His Honor, the presiding Judge, ordered that a new trial be granted, unless the plaintiff would consent upon the record that the verdict be reduced to $10,000. The plaintiff gave his consent, and the verdict was accordingly reduced.

The defendant appealed upon exceptions, which will-be reported.

Before proceeding to consider the exceptions specifically, we will first dispose of those assigning error, on the part of the Circuit Judge, in refusing the motions for a nonsuit, and to direct a verdict for the defendant, on the grounds, that there was no testimony tending to sustain the material allegations of the complaint, or that the testimony showed that the plaintiff was guilty of contributory negligence or assumed the risk.

1 The “Case” contains 140 pages, and consequently the testimony is voluminous. We have considered it carefully, and have reached the conclusion, that there was testimony tending to sustain the material allegations of the complaint, and that the motions for nonsuit, and the direction of a verdict, were properly refused; also that the testimony tending to show contributory negligence and assumption of risk, was susceptible of more than one inference, and that these defenses were properly submitted to the jury.

A detailed statement of the testimony, would prolong this opinion to a great length, and no useful purpose would thereby be subserved.

We proceed to the consideration of the specific exceptions.

2 First, second and third exceptions. These exceptions relate to the admissibility of certain testimony. The objections to the testimony upon the trial of the case, and the errors assigned in those exceptions, do not correspond. The first objection to the testimony was, that it tended to show an effort to compromise, whereupon the plaintiff’s attorneys disclaimed any such purpose. The other objections failed to state the grounds thereof, and, consequently, are not properly before this Court for consideration.

3 Fourth, fifth and sixth exceptions. These exceptions relate to remarks made to the jury by one of plaintiff’s attorneys. The appellant’s attorneys, in their argument, say: “The language to which these exceptions are directed is somewhat in dispute, and reference must be had to affidavit of J. B. S. Lyles, and statement of W. S. and P. H. Nelson. For the purposes of this argument, we are perfectly willing to confine ourselves, to the statement of the Messrs. Nelson, as we have no desire to raise an issue between counsel.”

They then quote from the statement of Mr. W. S. Nelson, as follows, and base their argument upon the facts therein stated:

“In his argument to the jury, Mr. Nelson referred to testimony (checks and vouchers offered by plaintiff), to show payment to Horsford after his injuries, and referred to the testimony that Mr. Seibels had told Horsford, that they had liability insurance. I was sitting within a few feet of Mr. Nelson, and directed his attention to this part of the argument. At this point Mr. J. B. S. Lyles objected to the argument, and asked the Court to request counsel to keep within the record. Mr. Nelson called the attention of the Court to the testimony, whereupon the Court ruled about tó this effect: ‘Yes, keep within the record.’ Mr. Nelson stated to the jury, in effect, that he did not wish to go out of the record, for it would be a ground for reversal if he did, for he thought the jury would give such a good verdict that he did not wish to run any chance of having it reversed. What Mr. Nelson did state to the jury was about this, that Mr. Seibels had stated that they had liability insurance; that we did not know whether these payments came from the glass company or insurance company. I did not understand the Court directed Mr. Nelson to desist from argument along the lines which was interrupted by Mr. Lyles, but after the interruption, further than making to the jury a statement, that he did not wish to go out of the record, I am sure Mr. Nelson did not dwell upon this line of argument, and about all he did say was, that the Carolina Glass Company claims it has made certain payments to the plaintiff (referring to checks and vouchers offered in evidence), but Mr. Seibels said they had liability insurance, and we do not know whether the glass company or insurance company, actually paid these amounts; as we do not know, whether the glass company or the insurance company, had paid these bills, we did not know by whom the verdict would be paid, if the jury rendered one for the plaintiff.”

When Mr. J. B. S. Lyles objected to the remarks of Mr. P. H. Nelson as to the matter of liability insurance, and asked the Court to request counsel to keep within the record, the Court so requested, whereupon counsel disclaimed any desire to go out of the record. No further objection was made to the line of argument pursued by counsel. Under these circumstances, the exceptions must be overruled.

Seventh exception. The cause of action for punitive damages was withdrawn, and the appellant’s attorneys have failed to show wherein this was prejudicial to the rights of the defendant.

Eighth and ninth exceptions. It is only necessary to refer to the allegations of the complaint to show that these exceptions cannot be sustained.

Tenlh and eleventh exceptions. What has already been said disposes of these exceptions.

4 Twelfth and thirteenth exceptions. One of the allegations of negligence, was the failure of the defendant to furnish the plaintiff a safe place to work, and the testimony was competent, for the purpose of showing the condition of the place.

Fourteenth, fifteenth, sixteenth and seventeenth exceptions. These exceptions make the point, that there was no testimony tending to establish negligence. What has already been said disposes of these exceptions.

5 Eighteenth exception. When this exception is considered, in connection with the entire charge, it will be found to be free from error.

Nineteenth, twentieth, twenty-first and twenty-second exceptions. In these exceptions the appellant contends that the evidence admitted only of the inference that plaintiff was guilty of negligence, which contributed to his injury as a proximate cause.

What has already been said disposes of this question.

Twenty-third exception. What has already been said disposes of this exception.

Twenty-fourth and twenty-fifth exceptions. These exceptions assign error, on the part of the Circuit Judge, in not holding that the plaintiff assumed the risk, and are disposed of by what has already been said.

Twenty-sixth exception. There is nothing in the record tending to show that the verdict was the result of prejudice or caprice.

6 Twenty-seventh exception. The appellant’s attorneys did not argue this exception, but waiving such objection, it cannot be sustained.

I think the judgment of the Circuit Court should be affirmed, but as the other members of the Court are of the opinion that the fourth, fifth and sixth exceptions should be sustained, the judgment of the Circuit Court is reversed, and the case remanded for a new trial.

Mr. Justice Woods.

3 I am unable to resist the conclusion that matter universally recognized as extraneous and highly prejudicial, in the trial of issues like those involved in this case, was brought into the evidence and argument against the objection of defendant’s counsel, and that for that reason the defendant did not have a fair trial. There can be no doubt on the bench or at the bar that in an action by an employee against his employer to recover damages for personal injury 'both reason and authority forbid bringing into the evidence or argument the fact that defendant is protected by employer’s liability insurance. Such evidence or argument has a manifest and strong tendency to carry the jury away from the real issue and to lead them to regard carelessly the legal rights of the defendant on the ground that some one else will have to pay the verdict. This is the only reason that can be assigned for attempting to use such testimony and argument. One of the most manifest and pressing duties not only of Courts but of lawyers is to prevent influences of this kind from finding their way into the administration of justice. In the discharge of this duty the entire commonwealth is deeply concerned, for the use in evidence and argument of such influences produces injustice, and waste of the time and labor of Courts and juries at great public cost.

In this instance the evidence was brought out under the guise of a conversation between the plaintiff and Seibels, the president, and Brewer, the manager of the defendant company. Such a conversation as to any matter germane to the issue on trial was not subject to objection, but it was here used as a medium for getting before the jury prejudicial testimony entirely foreign to the issue. There was no ground for the defendant’s counsel to object to the questions as tending to educe testimony as to insurance because the questions contained no reference to the subject and counsel could not anticipate that the answers would be incompetent. When the incompetent answer came, counsel did object generally, but the Court responded by saying that the answer was already out.

It is said, however, that the objection to the testimony cannot be sustained, because counsel did not move to strike out. The general rule is indisputably established that, when in the course of a trial incompetent statements of witnesses are brought in either from accident or when they might be reasonably, though erroneously, thought by counsel to be competent, the only remedy that the Court can afford is to grant a motion to strike out and instruct the jury to disregard the testimony. The injury resulting from the jury having heard the incompetent statement is regrettable, but the trial cannot be stopped because of such accidents and mistakes liable to occur in every trial. State v. Wideman, 68 S. C. 119, 46 S. E. 769; State v. Adams, 68 S. C. 421, 47 S. E. 676; Hagins v. Ætna Life Ins. Co., 72 S. C. 216, 51 S. E. 683; Keys v. Winnsboro Granite Co., 76 S. C. 284, 56 S. E. 949.

But when testimony manifestly incompetent and prejudicial is adduced for the purpose of having such testimony influence the jury, the party who adduces it will not be allowed to hold his verdict and assert that the Court can do nothing against the unfair advantage of having the statement before the jury, beyond striking it out and instructing the jury to disregard it. In such case it does not lie in the mouth of the offending party to say, that, although he has brought in irrelevant and prejudicial testimony, the Court cannot entirely deprive him of the benefit of it. It makes no difference that defendant’s counsel did not move to strike out the testimony. Had the motion been made and granted the plaintiff would still have had the unfair advantage of having testimony before the jury which he ought not to have offered. Justice can be satisfied only by the complete relief of a new trial. Reference to the subject in the argument was still more objectionable. In a written statement of facts made by Mr. W. S. Nelson, and accepted by counsel for defendant, it is said that Mr. P. H. Nelson stated in argument that “Mr. Seibels had told Horsford that they had liability insurance,” that Mr. Lyles for' defendant, “objected to the argument and asked the Court to request counsel to keep within the record,” that Mr. Nelson called the Court’s attention to the testimony on the subject, and the Court said: “Yes, keep within the record;” and in summing up Mr. Nelson’s remarks, the statement continues: “about all he did say was that the Carolina Glass Company claims it has made certain payments to the plaintiff (referring to checks and vouchers offered in evidence), but Mr. Seibels said they had liability insurance and we do not know whether the glass company or insurance company had paid these bills, and did not know by whom the verdict would be paid if the jury rendered one for the plaintiff.”

The inevitable conclusion that a party should not be allowed to hold a verdict obtained under such circumstances is enforced and illustrated in many cases. With respect to testimony as to employer’s -insurance the Supreme Court of Mississippi said, ill Herrin v. Daly, 80 Miss. 340, 31 So. 790 : “It could not conceivably throw any light on the issue, and could have no other tendency than to seduce a verdict on the ground that an insurance company, and not the defendants, would be affected.” In Cosselmon v. Dunfee, 172 N. Y. 507, 65 N. E. 494, the question was asked, “Do you know whether they carry insurance for accidents to their employees?” and the Court went to the extent of holding that the plaintiff should not be allowed to hold his verdict although the question was ruled out because by the question the plaintiff had improperly produced on the mind of the jury the impression there was such insurance. In the cases of Iverson v. McDonnell, 36 Wash. 73, 78 Pac. 202, and Westby v. Washington Brick etc. Co. (Wash.), 82 Pac. 271, similar questions were held to be ground for reversal. Other cases holding such evidence inadmissible are: Roche v. Llewellyn Iron Works Co., 140 Cal. 563, 74 Pac. 147; Prewill-Spurr Mfg. Co. v. Woodall, 115 Tenn. 605, 90 S. W. 623; Barrett v. Bonham Oil and Cotton Co. (Tex.), 57 S. W. 602; Lowsuit v. Seattle Lumber Co., 38 Wash. 290, 80 Pac. 431; Blanchard v. Olds Gasoline Engine Works, 142 Mo. App. 319, 126 S. W. 828.

The same rule has been applied to the argument. Prewill-Spurr Mfg. Co. v. Woodell, supra; Hollis v. United States Glass Co., 320 Pa. 49, 69 Atl. 55; George A. Fuller Co. v. Darragh, 101 Ill. App. 664; Trembly v. Harden, 162 Mass. 383, 38 N. E. 972; Lone Star Brewing Co. v. Voith (Tex. City App.), 84 S. W. 1100; Coe et al. v. Van Why, 33 Col. 315, 80 Pac. 894. In Trembly v. Harden, supra, the trial Judge refused to allow counsel to comment on evidence of the defendant himself that he had insurance, the Court saying: “We are of opinion that the Judge was right in this refusal. It does not appear that the defendant relied upon his insurance in any way as a defense to this suit, and very likely the fact of insurance was brought out in J:ross-exammation. It was not a subject for legitimate argument to the jury.”

It is not necessary for us to go to the extent that many of the Courts have gone on this subject. The principle on which all the Courts proceed is the same, namely, that such testimony or argument is not fair. For these reasons I think the Circuit Court should be reversed.

On the other points I concur in the opinion of the Chief Justice.

Mr. Justice Watts concurs. Mr. Justice Fraser concurs in the result.