*1 Oxendine, C., In State v. S. E. S. filed herewith, (under we held identical circumstances involving the same 16-414.7 appellant) (d) § applicable only instances where the obscene matter seized. alleged was Since material in the record here shows that the question was Thus, applicable. purchased, 16-414.7(d) no § was committed trial judge. error is affirmed without oral judgment Accordingly, argu- ment. TUCKER, J.
Tracie a minor age under (14) years, by of fourteen litem, Tucker, guardian her ad E. Respondent, N. v. Daniel J. REYNOLDS, Appellant. TUCKER, REYNOLDS, Respondent, Elsie Jeanne v. Daniel J. Appel lant. (Two Cases)
(233 (2d) 402) S. E. *2 Cabannis, Charleston, Appel- Messrs. Grimball & lant, *3 Belk,
Messrs. Paul & of Charleston Heights, Respond- for ents,
March 1977.
Rhodes, Justice: Elsie Tucker and The her minor daugh- plaintiffs, Jeanne Tracie, lawsuits, ter, these instituted which were consol- defendant, trial, Daniel Reynolds. idated against J. of in County The suits out an accident Charleston arose into the the defendant’s automobile crossed over wherein lane of traffic struck and vehicle oncoming plaintiffs’ The head-on collision. that their plaintiffs alleged injuries to, were due caused proximately by, and negligence, recklessness and willfulness defendant in the operation of of his motor vehicle. The returned verdicts favor actual both Elsie Tucker awarding plaintiffs, $138.00 Jeanne $5,000 and Tracie and damages, awarding damages punitive Tucker actual and punitive $3,000 in the amounts of damages From $12,000, and the trial court’s denial respectively. for a various motions objections defendant’s timely trial, nonsuit, mistrial, verdict, and new directed judgment affirm. v., n. o. the defendant We appeals. concerns Elsie initial assertion of error
The defendant’s “insurance”. word Tucker’s mention Jeanne to was prejudicial contends that the statement a mistrial. to declare in refusing him court erred “insurance” was the'course The word injected during a question examination in to response direct plaintiff’s follows : her as attorney, Well, coming there were people that time “A. ' in. I had door trying get was at my car and somebody *4 was was—it I it for whoever door and unlocked locked the for me a washcloth handed lady time some a man and at that mouth. Tracie’s that Could man? you identify
“Q.
“A. No. conduct an after this accident? Did you investigation
“Q. IYes, “A. did. What if did
“Q. anything your investigation disclose? Well, I “A. from here on turned it over to you and — — endeavors and your the insurance uh through they showed me the that all had I pictures you and identified the said, know, vehicle said you you you the man’s name was Mr. You found that out Reynolds. it out pointed to me.” of whether or question not a motion for a mistrial
should be in rests the trial granted sound judge’s discretion, and his on such motion will not be ruling disturbed unless abuse of discretion is shown. Riddle-Duck worth, Sullivan, Inc. v. 411, 253 S. C. E.S. (2d) Moreover, (1969). on a motion for mistrial because of the injection insurance liability trial, during burden is upon movant to show not error but only also prejudice to him. Keller resulting v. Pearce-Young-Angel Co., 253 S. C. 171 E.S. (1969).
After reviewing pertinent we are of testimony, opinion the plaintiff’s use of the “in word surance” was inadvertent and not intentional or deliberate. As for grounds motion defendant’s denying mistrial, for a that, trial stated from the manner in which the had “insurance”, plaintiff mentioned the jury was not able to whose determine insurer she was to. referring We are substantial with agreement advanced reasoning court for refusing declare a mistrial. A review the context of the in which the testimony plaintiff spoke the word “insurance” leads us to conclude that the defendant was is, therefore, This prejudiced. exception overruled.
The defendant next contends that the trial court erred charging punitive and in damages refusing the defendant’s motion grant for n. o. v. as to judgment punitive because the damages, did not Complaints pray such name. The damages by that there argues to him in this resulting surprise regard.
335 Here, it is not substance the of the court’s instruction but, rather, which defendant the the fact challenges that there was a at all on charge punitive damages. It must be noted that the court acts when it correctly charges the on the law framed the issues as the jury by by made and the facts the evidence pleadings developed by support of those issues. Machines See v. Speizman Knitting Corp Fretwell, 168, 213 E. Where S. C. S. (1975). tort, he a willful recover plaintiff may alleges proves both actual and Furman A. punitive damages. v. C. Tuxbury Co., Land & Timber E. 111 S. C. 99 S. (1919). Punitive need not be damages, being special damages, name, or specially demanded suffi pleaded by being cient that facts the an award of such alleged justify damages. 25 C. S. 133. Damages § J. bar,
In the case at the contained Complaints allega tions to the effect that the sustained injuries by to, were plaintiffs due caused proximately by, recklessness and negligence, willfulness of the defendant. The forth set reckless and Complaints specifications alleged willful misconduct. Our examination of the record of this case leads us to conclude that these were allegations supported the evidence Moreover, presented. the amount of damages for was not prayed exceeded verdict in either case. Complaints notice of the gave adequate plain tiffs’ cause of action and the relief to which plaintiffs therefore, was, themselves entitled. no basis supposed There defendant, and the to the and the award surprise jury’s court’s instruction did not error. constitute
The defendant’s final is his assertion argument that the trial court erred in that the defendant had charging burden of issue of unavoidable accident. The defendant’s Answer contained the original una- allegation voidable Defense, accident the Second which con- usually defenses, tains the affirmative if of the any. On motion however, plaintiff, the Answer was amended by moving Defense, unavoidable accident to First allegation than denials. The no more general contains normally which unavoidable accident assertion of defendant’s essence he over when passed of his automobile he lost control is that street, into the forced his car oppo- in the which a depression automobile was ap- where the plaintiffs’ of traffic site lane *6 of. the injuries complained causing proaching, not an accident is unavoidable First, the assertion of on the part special proof requiring affirmative defense our decision Here we on rely the defendant. 338, 521, E. Cornelius, 534, S. (2d) v. 247 148 Grier S. C. state the following 344 which with approval (1966), quoted E. 330, 104 S. Co., N. C. v. 180 Mfg. ment from Page Camp 667 : (1920) on the
“The burden to his case always plaintiff, prove or not. we defendant introduces evidence Where whether the to forward with said, ‘It is the of the defendant duty go have that, if he to the sense expects his it was only meant in proof,’ win, so, is his to do or take risk duty it of an adverse verdict, him. and not that burden of any rested proof upon issue, defense but He no affirmative the general pleads on the burden case who throughout plaintiff, this puts recover, all, his case by if at establishing greater must of evidence.” [Emphasis supplied.] weight also 65 A. L. R. Instruc- See Unavoidable Accident (2d), Therefore, 44. it tion for the defendant to allege proper § First Defense of Answer. unavoidable accident in- the same token it was for the trial By improper burden of on struct the that the defendant had the proof jury accident. unavoidable question However, we view the court’s although instruction error, burden of as on we find unnecessary remand. Where the reverse and evidence does not accident, issue on the matter of raise a unavoidable genuine errs if it instructs the on that the court Grier question. Thomas, Cornelius, 128, Collins v. 244 135 v. S. C. supra; E.S. Such an (2d) (1964).1 instruction “is inappropri- ate where the evidence shows that clearly accident was caused or contributed to of one or negligence more Thomas, Collins v. parties.” S. C. at supra, S. E. at 754-755.
After a review of the thorough evidence in the instant case, we conclude that an instruction on unavoidable accident was not warranted. Officer Ervin John Steen, who accident, arrived at the scene after the testified that the limit posted hour; was 35 miles that speed it had per ben raining heavily afternoon surface was and the road wet; that extremely de any motorist across the who drives or pression, on dip, at Reynolds Avenue the posted speed limit would have no but that if one drove above problems, limit, automobile; the speed he would trouble with his have that the defendant stated that, to Officer he was Steen as Avenue, traveling Reynolds the traffic started to light *7 that he change, accelerated, therefore hit the in the road dip and lost control of his vehicle. Officer also described Steen the defendant as intoxicated at the scene being extremely the accident, an extreme odor of alcohol having and stum when he moved. bling
Furthermore, Lathem, Elaine Sylvia a in the passenger witness, defendant’s vehicle and called the by defendant as a testified that 12:00 between noon and 4:30 P. M. on the afternoon in the defendant visited two bars and had question, more; at least one drink bar at each and that the possibly defendant did accelerate his indeed vehicle near where the occurred; accident that the defendant was at 35-45 driving miles hour per intersection; he to cross the speeded up before that the defendant was at 45 miles driving approximately hour when he crossed intersection hit- per the just prior and he could have been ting that even faster. dip driving plaintiffs While the did question not raise at trial of whether or accident, not the evidence warranted a charge on unavoidable this Court sua sponte. raises the issue himself, admitted testifying, upon defendant
Finally, the afternoon of alcohol on drinks consumed two that he had stated accident, intoxicated. He but denied that he was and was raining; the time of the accident that it was at misty on in his turned radio was almost sure that the that he was he was car and that conversation with a having passenger most testimony in the front seat. Perhaps damaging given Rey- that he had traveled was his admission the defendant by very times was Avenue accident many prior nolds road, he had never before lost con- but that familiar with From the de- crossing dip. of his when trol automobile other fendant’s admissions and the summarized testimony above, no reasonable inference can be drawn that neither the nor driver evidence of con- the plaintiff (since acted without was tributory offered) negligence. negligence the. instruction on unavoidable accident given by to the defendant. The was favorable trial judge highly burden the court that the subsequent charge by on the defendant did not the beneficial was negative the trial effect of the overall on the issue. While charge in error his as to who had the burden proof, charge accident. he erred unavoidable initially also instructing was inconse However, error burden of proof regarding de not, not, it did and could prejudice quential therefore, We, overrule exception. fendant. from
The judgment appealed Affirmed. concur. and Ness J., JJ., C.
Lewis, Gregory, *8 J., dissents. Littlejohn, : (dissenting)
Littlejohn, Justice I dissent and would new trial to grant respectfully of erroneous law. The because of the charge defendant error, but excuses it. recognizes majority opinion error, too. recognized trial judge accident,” After “unavoidable the trial told defining judge the jury:
“Now, the burden to an unavoidable accident would prove be on the Defendant.”
At the end of the invited counsel to assert charge, judge to the as made?”
“Any exceptions Counsel for the charge cor- objected an to gave opportunity rect the mistake. The following transpired: Further, Honor, on
“MR. VAUGHN: your charging burden of unavoidable accident said we had the you proof. as You this an affirmative remember we originally pleaded and on motion of the other defense we that in our put party denial, Iso don’t think the burden of we have general I think on unavoidable accident. “COURT: don’t have you However, worms, I’m either. to that can open going or unavoidable accident. I’m to either sole negligence going You use that as grounds leave it where it is. can appeal. further?” Anything be-
The error should have been corrected before its deliberations. The error was gan prejudicial.
I also with that disagree opinion part majority which holds that the court “erred by instructing initially view, In im- unavoidable accident.” almost never my accident in a law unavoidable proper charge negli- accident. case. is the law of the avoidable gence Negligence effect, court, In one to the “The alleging negligence says hap- could have avoided the use been care.” pening ordinary the law of avoidable accident is neces- Accordingly, always law, in a case. In order to further sary negligence explain the law it would be almost never of un- improper charge avoidable accident. The facts here warranted the charge.
I for a would remand new trial.