Autrey v. Bell

• Decision Date: 26 July 1920
• Docket Number: 10474.
• Citation: 103 S.E. 749,114 S.C. 370
• Parties: AUTREY v. BELL.
• Court: South Carolina Supreme Court

103 S.E. 749

114 S.C. 370

AUTREY v. BELL.

No. 10474.

Supreme Court of South Carolina

July 26, 1920

Appeal from Common Pleas Circuit Court of Spartanburg County; R. W Memminger, Judge.

Action by W. A. Autrey against J. W. Bell. From judgment for plaintiff, defendant appeals. Affirmed.

Exceptions 1-3 and 5-7 are as follows:

(1) The court erred in instructing the jury with respect to plaintiff's testimony: "That is superfluous. This witness has covered it in a most clear way; what is the use of reiterating it?"--it being respectfully submitted that such statement (a) passed upon the credibility and weight to be given this witness's testimony; and (b) conveyed to the jury the court's estimate of the conclusive value of this witness's testimony.

(2) In refusing to permit defendant's witness, Howell, to testify as to the agreement between plaintiff and defendant, in the following language: "I expect you had better drop that subject"--it being respectfully submitted that the direction to desist further examination of this witness on this issue in the language given (a) discredited the witness, and the force and effect to be given his testimony; and (b) invaded the province of the jury in determining the issue of fact.

(3) In directing the jury upon defendant's objection to the competency of the testimony of the witness Bussy "This is a special contract. It is absolutely incompetent"--in that such statement was tantamount to a peremptory instruction to the jury to find that the relation between plaintiff and defendant was under the contract testified to by plaintiff, and excluded from the jury's consideration the issue as to what kind of contract existed between the parties.

(5) In charging the jury that "the defendant comes in and denies there was such a contract--claims if there was such a contract with reference to such a commission that it was only to be paid at the end of the year; that he failed to serve out that year, forfeited, and could not be entitled to recover such compensation"--(a) in that such charge was instruction to the jury that in order to avoid liability under the facts as they existed the defendant must show affirmatively, and thereby imposed on the defendant the burden of proof by the preponderance of the testimony; (b) in that such instruction was tantamount to instructing the jury that the plaintiff must recover, unless the defendant shows that the plaintiff had forfeited some legal right; there was no element of forfeiture in the pleadings or case; (c) in that such instruction based defendant's defense upon the idea of forfeiture by the plaintiff.

(6) In charging the jury as follows: "Then the idea that has been advanced in behalf of Bell for the year, if he was to get anything at the end of the year, that was forfeited and lost to him by not having served through the year, would prevail"--(a) in that such charge imposed upon the defendant the burden of proof in the case which burden was not imposed upon the defendant by law; (b) in that such charge was instruction to the jury that plaintiff must recover, unless he had forfeited a legal right; (c) in that such charge was hypothecated upon an assumption that plaintiff had made out his case completely and there was no defense, unless the jury believed that he had forfeited his right, thereby depriving the jury of passing upon the issue of fact in the case, to wit,

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