Burgess v. Germany-Roy-Brown Co.

July 25, 1922. The opinion of the Court was delivered by The plaintiff, Wilbur Burgess, a boy under seven years of age, was struck by a motor truck owned by the defendant, and seriously injured. For his injuries this action is brought, for both actual and punitive damages. The jury found for the plaintiff, and the defendant appeals.

I. The plaintiff introduced in evidence a statement made by one C.A. Morgan, in which he told the hospital authorities to employ a nurse and physician for the plaintiff, and that the defendant would pay the bill. The appellant claims that the evidence was both incompetent and prejudicial. Testimony was offered later to show that Morgan was the general manager of the defendant company, and it was for the jury to say whether he was acting within the scope of his authority.

It was not prejudicial. The defendant claims that it was prejudicial in that it might be deemed as an admission of liability. No such inference can be drawn from the offer of assistance. It was the proper thing to do. Any right thinking man will render all assistance in his power to any one who has been injured by his property, without regard to his liability. Not to do so is inhuman. Indeed, it is made a misdemeanor not to stop and offer assistance in case of a collision. The statute does not require the offer of assistance the next day, but no man can be prejudiced by acting in accordance with the spirit of the law and the dictates of humanity.

II. The next assignments of error are set forth in exceptions 4 and 9:

"Fourth. It was error to permit counsel for plaintiff to examine the witness Morgan, in the presence of the jury, and to decline defendant's attorneys' request that said jury be withdrawn while said examination was proceeding, as follows:

"`Q. I will ask you as a matter of fact, Mr. Morgan, if your company weren't willing to settle that bill, but if the insurance company that was behind the automobile didn't tell you not to settle it?

"`Mr. Osborne: I object to any question of that sort. The Supreme Court has held that it is improper.

"`Mr. Nicholls: All right, I will ask this question —

"`Mr. Osborne: I ask your Honor to have the jury withdrawn if he is going into matters beyond the pale.

"`Mr. Nicholls: Did your company, after the bill was sent in, leaving out the insurance proposition, weren't they willing to settle?

"`Mr. Osborne: I object to that.

"`The witness: No, sir.

"`Mr. Nicholls: The question is — don't answer it now until his Honor rules — didn't your company, after you had agreed to pay this bill, agree to settle the whole matter, and didn't the insurance company that had insured the automobile — don't answer it now — didn't they refuse to settle, and isn't that the reason it isn't settled?

"`Mr. Osborne: I object to it on the ground that it is incompetent.

"`The Court: No; I don't think it is competent.'"

"Ninth. Error in declining to withdraw the cause from the jury in view of the argument of Mr. Nicholls, attorney for the plaintiff, which he made to the jury in connection with which the following took place:

"`Mr. Nicholls: I said, Mr. Foreman and gentlemen, that I wouldn't tell who Mr. Osborne represented in this matter because I didn't know, but I would like for him to tell whether he represented the Germany-Roy-Brown Company or the insurance company behind them.

"`Mr. Osborne: I want to object to that as being highly improper in the argument of counsel, and I want your Honor to instruct that jury that they are to utterly disregard what my friend has suggested or any reference to whom I represent. I want to state to my friend that I represent the person for whom I have put in an answer in this case.

"`Mr. Nicholls: Will you go further and state who employed you in this matter? Through who you were employed?

"Mr. Osborne: I want your Honor to instruct the jury that that is improper.

"`The Court: Gentlemen of the jury, dismiss that.

"`Mr. Osborne: I ask your Honor to withdraw the case from the jury on account of the highly improper matter my friend has brought out before the jury.

"`The Court: Gentlemen of the jury, don't let that influence you one way or the other.

"`Mr. Osborne: I want the jury to understand and see what arguments my friends have to resort to in order to make out a case.'"

Indemnity insurance had no legal bearing in this case. Its actual and efficient bearing is manifest. It was repeated time and again. It was prejudicial error, and these exceptions are sustained. See Horsford v. Glass Co., 92 S.C. 258;75 S.E., 533.

III. The next assignment of error is that his Honor refused to direct a verdict for the defendant. There was evidence enough to carry the case to the jury.

The judgment is reversed, and a new trial ordered.