142 S.E. 516 | S.C. | 1928
March 29, 1928. The opinion of the Court was delivered by *215 This is an action for injury to person and property, commenced in November, 1926. On January 23, 1926, respondent's Ford coupe and appellant's train collided where the highway crosses at grade the Y track of appellant in or near the Town of Yemassee. The train consisted of an engine and two or three coaches. Respondent, claiming to have been injured personally, and his car damaged, entered suit against appellant in the sum of $15,000.00. The action is based on negligence and willfulness, the specifications of which are fully set out in the complaint. The answer set up a general denial, contributory negligence, and willfulness on the part of respondent.
The case was tried in March, 1927, before Hon. John I. Cosgrove, Special Judge, and a jury and resulted in a verdict in favor of plaintiff in the sum of $5,000.00, upon which judgment was duly entered. Within due time, an appeal was taken upon exceptions that question the admission of certain testimony, the refusal of the trial Judge to charge certain requested instructions, and the charge itself.
Exceptions 1 and 2 are:
"(1) That the trial Judge erred in admitting the testimony of plaintiff to the effect that Dr. Rivers, who was local examiner for an insurance company, had stated to him that as a result of the wreck he could not recommend plaintiff for life insurance; the error being that such testimony was hearsay, constituted res inter alios acta, was not alleged as an element of damage, and was calculated to mislead and prejudice the jury.
"(2) That his Honor erred in admitting and in refusing to strike out the testimony of the witness, Sims, to the effect that, as agent for an insurance company, he had taken plaintiff's application for life insurance, and had sent it to the local examiner, Dr. Rivers, for physical examination *216 of plaintiff, but that the application had been rejected by the doctor; the error being (a) that the testimony was hearsay; (b) the local examiner was not empowered to reject an application; (c) there was no competent testimony that such rejection was made as the result of any injury received by plaintiff in the collision."
These exceptions must be sustained.
The Court, over objection, permitted respondent to testify that Dr. Rivers was the local examiner for an insurance company, and that the doctor had stated to respondent that, as a result of the collision, he could not recommend him for life insurance. This is the basis of the first exception.
It will be noted that Dr. Rivers did not testify, and that the statement attributed to him was entirely hearsay. The reason such evidence should be excluded is thus clearly stated in Ruling Case Law:
"The reason for this rule of exclusion is that hearsay is not subject to the ordinary tests required by law for ascertaining its truth, the author of the statements not being subject to cross examination in the presence of a Court of justice, and not speaking under the penal sanction of an oath, there being no opportunity to investigate his character and motives, and his deportment not being subject to observation. And the misconstruction to which such evidence is exposed, from the ignorance or inattention of the hearers, or from criminal motives, is a powerful additional objection."
A case from our own Court closely analogous in principle, but in which the testimony could much more logically have been admitted, has the following syllabus:
"In subcontractor's action against a contractor to recover for the construction of certain manholes and flush tanks in sewer system, where plaintiff had testified that his work was satisfactory to the city, a report of a city inspector was properly excluded as hearsay." Jowers v. Dysard Const.Co.,
The rule is so elementary, however, that citation of authority is clearly unnecessary. Many South Carolina cases affirming the doctrine will be found in 22 Corpus Juris, at page 203. It is equally as clear that the testimony comes under none of the well-recognized exceptions to the hearsay rule.
The second exception complains of the admission of testimony of the insurance agent, Sims, to the effect that he had sent an application for insurance on the part of Jones to Dr. Rivers, the local examiner, and that such application had been rejected by Dr. Rivers. It appears from the testimony of this witness that Dr. Rivers told Sims that he would not make the examination. Sims admits that Dr. Rivers had no power to accept or reject an application for life insurance.
The testimony objected to was clearly hearsay. Dr. Rivers was not placed on the stand. No reason was given why Dr. Rivers did not examine Jones, but the natural inference is that it was on account of his physical condition, and that such condition resulted from the accident.
In view of the fact that the testimony in both instances was clearly hearsay, and did not come within the exceptions to the hearsay rules, it seems to us that the only question with which this Court will concern itself is as to its prejudicial effect. This question must be determined in the light of the doctrine announced in our decisions that:
"There is a legal presumption that incompetent testimony of some probative force upon a material issue of fact is prejudicial." Powers v. Rawls,
The case the Judge had in mind in admitting this testimony and upon which he based his ruling was Smoak v.Martin,
The admission of this testimony was erroneous, and highly prejudicial to the defendant, and there must be a new trial. The other exceptions are not considered. Judgment reversed, and new trial granted.
MESSRS. JUSTICES COTHRAN, BLEASE, STABLER, and CARTER concur.