Nettles v. Your Ice Co.

• Citation: 4 S.E.2d 797,191 S.C. 429
• Decision Date: 03 October 1939
• Docket Number: 14940.
• Parties: NETTLES v. YOUR ICE CO. et al.
• Court: United States State Supreme Court of South Carolina

4 S.E.2d 797

191 S.C. 429

NETTLES v. YOUR ICE CO. et al.

No. 14940.

Supreme Court of South Carolina

October 3, 1939

Nathans & Sinkler and Moore & Mouzon, all of Charleston, for appellants.

J D. E. Meyer, of Charleston, for respondent.

G. B GREENE, Acting Associate Justice.

The statement in the transcript of record in this case reads as follows:

"This action was commenced by the service of a Summons and Complaint upon the Defendants on the 29th day of May, 1936. It is an action in which the Plaintiff seeks to recover actual and punitive damages for personal injuries, sustained by him when a motor truck, owned by the Defendant, Your Ice Company, and operated by one Homer P. Whatley, left the public highway a few miles North of the City of Charleston and plunged into a ditch, mashing off Plaintiff's right arm between the wrist and the elbow. Alexander J. Garland was the general manager of the Defendant corporation and had charge of the employing and discharging of the employees of the corporation.

"The case was tried before Judge Thurmond and a jury in the October, 1938, term of the Court of Common Pleas for Charleston County. The Plaintiff was awarded actual damages in the sum of $15,000.00 and punitive damages in the sum of $5,000.00.

"The accident, from which the case arose, occurred at about 11 p m., on the night of October 4th, 1935. On that evening the Plaintiff, James R. Nettles, who was an employee of the Defendant, Your Ice Company, met one Homer P. Whatley, a truck driver employed by the Defendant company, at the corner of Cooper and Meeting Streets, in the City of Charleston, in response to a request from Whatley to make a delivery of ice with him. Nettles had been off duty since 6 o'clock in the afternoon of that day but Whatley was still engaged in his duties of delivering ice for the Defendant Company. After the meeting, Nettles got into the truck with Whatley and the two men first drove to one of the ice plants of the Defendant Company, located on Spring Street, very near Rutledge Avenue in the City of Charleston. There Whatley picked up some ice and started to drive downtown to make a delivery. About a half block from the plant Whatley stopped the truck at a grocery store. After obtaining some money from Nettles, he went into the store and bought a pint of whiskey. Nettles testified that he did not know for what purpose the money was to be used, but Whatley testified that he went in and bought the liquor, and, in response to the question, 'Who paid for it?' stated 'Well, I paid my part and Nettles paid his part'. Going on downtown Whatley asked Nettles to have a drink. Nettles at first refused, with the admonition to Whatley that drinking was against the Company's rules and that he should not drink while on duty, but after some persuasion Nettles took a little drink. The delivery was made without mishap and the two men returned once more to the ice plant. On this occasion McDonald came out and got in the truck. McDonald was a brother-in-law of Whatley. The next errand which Whatley undertook to perform was his last duty of the particular night. He was required to take a load of ice to a small substation operated by the Defendant in a suburban section of Charleston County on the Meeting Street road, some six miles North of the City of Charleston. Both Nettles and McDonald went along with Whatley.

"Before arriving at the 'box' or substation, Whatley took another drink. He drank alone as Nettles refused to join him, but not without warning Whatley that it was dangerous to be driving while drinking. They arrived at the substation without mishap and unloaded the ice from the truck into the refrigerator. At that time it was Whatley's admitted duty to turn around and drive the truck back to Charleston. Instead of doing this, Streets, the person in charge of the Defendant Ice Company's substation, suggested going somewhere. Nettles objected and wanted to return to the city. The four men finally left the substation and started up the Meeting Street road to an establishment known as 'Good Time Charlie's'. Nettles did not go willingly, but only after urging the party to return to Charleston. Good Time Charlie's was a dance-hall or 'piccolo' one-half mile further north than the substation. The record shows that Nettles neither drank nor danced at this place. The party stopped there for about ten minutes and when they came out Nettles tried to persuade Whatley to let him drive because he appeared at that time to be 'getting pretty full'. The record shows that Streets, McDonald and Nettles were perfectly sober at this time. Whatley insisted on driving and started further up the road to a similar establishment called 'Little Italy'. Nettles testified he thought that Whatley was going back to town.

" When they arrived at Little Italy, Nettles tried to get the keys from Whatley without success. Whatley and Streets got out and went into Little Italy, and Nettles got under the wheel so that when Whatley came out he could persuade him to let Nettles drive back to the city. Nettles and McDonald did not go into Little Italy, Streets, McDonald and Nettles were perfectly sober at Little Italy and took absolutely nothing to drink. When Whatley came out of Little Italy, Nettles argued with him 15 or 20 minutes and tried to get the keys to the truck from him, but Whatley would not give up the keys. Whatley stated that he drove the truck up and he would drive it back and that he would not give up the keys, that he was able to take the truck back to the city 'o. k.' So the four men got back into the truck and started back to Charleston.

"The injuries to the Plaintiff took place shortly after they left Little Italy and a few hundred yards below the point on the road where Good Time Charlie's was situated. Whatley zig-zagged on the road and ran into a ditch. Whatley, in response to the question why he ran off the road testified, 'well, when the wheels run off the pavement the shoulder wasn't so wide and I imagine that the speed I was going it turned over. It was on a short curve and we went in the ditch'. In some manner Nettles' right arm was caught between the car and the stump of a tree in the ditch. His arm was cut off a little above the wrist. Subsequent amputations were necessary and Nettles recovered his health only after a long illness. It is for the injuries that he sustained that this action was brought.

"The Plaintiff is not asking recovery under the law of Respondeat Superior where the master is liable for the negligent acts of his servants if done in obedience to the master's orders or within the scope of the servant's employment or line of duty. The Plaintiff's case is based upon the alleged reckless and wilful act of the master himself in placing for operation on the public highways a motor vehicle in the hands of a servant whom he allegedly knew partook frequently of intoxicating liquors to excess, and which said act resulted in injuries and damage to Plaintiff. The Plaintiff contends that Whatley was fired not a great length of time before the wreck for being drunk while on duty. At that time he had been employed as a night engineer in plant of the Defendant. The Defendants admit that Whatley had been discharged, but deny that they had any knowledge of his habit of drinking liquor or drinking to excess.

"The case was tried before a Judge and a jury on November 14th 1938. At the conclusion of the Plaintiff's case the Defendants made a motion for a non-suit. After extensive argument this motion was overruled. At the conclusion of the evidence, the Defendants made a motion for a directed verdict. The Court did not act on this at once, but, with consent of counsel, decision on the motion for a directed verdict was reserved until after the verdict was rendered by the jury. The jury rendered a verdict for actual...