City of Columbia v. Myers

294 S.E.2d 787, 278 S.C. 288, 1982 S.C. LEXIS 423

• Court: Supreme Court of South Carolina
• Decided: August 26, 1982
• Docket: 21784
• Status: Published

Opinions

Lewis, Chief Justice:

This action arose out of an intersection collision between a fire truck owned by the respondent City and an automobile owned by appellant. Respondent brought the action to recover for damage to its fire truck and was awarded a verdict in the amount of $1,400.00 actual damages.

In the closing argument to the jury, counsel for the City of Columbia argued that if the jury did not return a verdict for respondent City of Columbia, then the taxpayers of the City would have to pay the cost of repairs to the fire truck. Upon objection, the trial judge ruled, in the presence of the jury, that this was “proper argument.” This was error and we reverse.

The argument that the failure to render a verdict for the City would cause the damages to be paid from tax funds had no relevance to the merits of the case. It constituted an appeal to the self-interest of the jurors as taxpayers and was of such a prejudicial nature as to require reversal, especially where, as here the trial judge stated in the presence of the jury that this was proper argument. The ruling of the trial judge was tantamount to telling the jury that such argument of counsel was relevant to the issues and could be considered by them in reaching their verdict.

There were jurors who were residents of the City of Columbia, but the record fails to reveal the exact number. The probability of prejudice was such as to require a reversal. It is argued however that the issue of improper closing argument by plaintiffs counsel was not preserved for review. It is contended that the failure of defendant’s counsel to request a curative instruction, a mistrial or new trial after his objection had been overruled is fatal. This Court has held in Bowers v. Watkins Carolina Express, Inc., 259 S. C. 371, 376, 192 S. E. (2d) 190, that motions for mistrial or new trial in such circumstances would be futile and are not necessary to preserve a timely objection for review. By the same logic it would be both futile and nonsensical for counsel to request curative instructions from a trial court which has already ruled an argument to be proper. This appeal is clearly governed by Bowers,supra, and cannot in fact be dismissed without implicitly abandoning that case as precedent.

The holdings of State v. Penland, 275 S. C. 537, 273 S. E. (2d) 765, or Adams v. Orr, 260 S. C. 92, 194 S. E. (2d) 232, are not contrary to the present result. In the Penland case the dispositive issue was failure of the defendant to move for mistrial, on grounds of improper argument, until after the verdict was rendered. References in that decision to curative instructions have no bearing on the result.

Likewise, in Adams, supra, the trial court had made asser-tedly prejudicial comments in the presence of the jury which were advanced as grounds for appeal. This Court found that no objection had been made at any time during the trial nor were requests for curative instructions or motions for mistrial or new trial presented. In short, the trial court in that case was given no opportunity to rule upon or correct the assigned error. Accordingly this Court declined to review the exception.

Reversed and remanded for a new trial.

Littlejohn, Gregory and Harwell, JJ., concur. Ness, J., dissents.