Horsford v. Carolina Glass Co.

• Decision Date: 12 August 1912
• Parties: HORSFORD v. CAROLINA GLASS CO.
• Court: South Carolina Supreme Court

75 S.E. 533

92 S.C. 236

HORSFORD v. CAROLINA GLASS CO.

Supreme Court of South Carolina

August 12, 1912

Appeal from Common Pleas Circuit Court of Richland County; John S Wilson, Judge.

"To be officially reported."

Action by W. E. G. Horsford against the Carolina Glass Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

The exceptions were as follows:

"(1) That his honor erred in admitting in evidence, over the objection of the defendant, certain declarations or admissions claimed to have been made by certain officers of the defendant company to the plaintiff, W. E G. Horsford, as follows, to wit: 'Mr. Nelson: State whether or not the company ever said anything to you about paying your wages? A. They paid me my salary for a while. Q. Why did they stop? Mr. Lyles: I object. Mr. Nelson: If they told you why they stopped, and if you had any conversation with Mr. Brewer, the manager, or Mr. Seibels who was president, it is competent. A. I went to the Glass Works to get my pay. I thought I was still receiving it. When I got there, I saw Mr. Brewer. He told me he had a conversation with Mr. Seibels and that he had said the insurance companies-- Mr. Lyles: I object, and ask that that be stricken out. If there is anything objectionable under our law, it is anything in the nature of a compromise; not competent. Mr. Nelson: We are not seeking to show a compromise. Just want to give the reason Mr Seibels assigned to him for not paying him. The Court: Go ahead. Mr. Nelson: What did he say to you? Mr. Lyles: I object. The Court: Note exception. Mr. Lyles: This was long after the accident, and I don't know whether Mr. Brewer was then an officer of the company, but Mr. Brewer had no right or authority by admission of a statement at a late date, not anywise connected with this accident, to bind the company. Mr. Norton, I think, was the manager of the company at that time. This was long after the accident. Mr. Nelson: Instead of this being a compromise, it seeks to shirk liability; the answer will show no liability attached to them, and will give the reason. Q. How long after you got out before you went down there? A. I had been down there several times before. Q. How soon after Mr. Brewer had this conversation with you --how long after you were hurt? A. Some time. Q. Was Mr. Brewer still down there? Was he in the office doing what he had been doing when you were there? A. That is what I suppose he was doing--that is what he was doing. Q. What did he tell you? Mr. Lyles: I object. A. Mr. Brewer said that Mr. Seibels said to him under liability of the insurance company weren't due me anything and would not pay me anything else, but Mr. Brewer said he was going to Mr. Seibels' office, and that he would bring Mr. Seibels back and let me talk to him myself. Mr. Nelson: He said the insurance company-- Mr. Lyles: I object. The Court: He has already stated what he said. Mr. Nelson: State what he said. A. Mr. Brewer told me Mr. Seibels had said something about the insurance company, liability insurance, not paying any sum; said not due me anything and would not pay me anything, but Mr. Brewer said, "I am going to Mr. Seibels' office now, and I will bring Mr. Seibels back in a few minutes' time," and told me to wait, and I waited at the factory until Mr. Seibels came, and he came, and he told me-- Q. You had a talk with Mr. Seibels, the president of the company? A. Yes, sir. He told me the insurance company claimed they were not due me anything and would not pay be any more time, and the company would not advance me anything, and that is when my pay stopped. Q. That conversation was with which Mr. Seibels? A. Mr. John G. Seibels, the president of the company.' Whereas, his honor should have excluded the testimony for the reasons: (a) That such declarations or admissions by officers of the company a long time after the injury to plaintiff were not competent evidence to bind the defendant company; and the further reason (b) that they were declarations tending to establish an attempted compromise; and the further reason (c) that they were evidently attempted to be introduced for the purpose of establishing (as contended by plaintiff) that the defendant carried accident insurance covering the injury to plaintiff, so that the jury would conclude that any verdict they might render would be paid by the accident insurance company and not by the defendant.

"(2) That his honor erred in refusing the defendant's motion for a new trial made upon the twelfth ground, as follows, to wit: ' That his Honor erred in allowing plaintiff to testify to an admission of Mr. Brewer to the effect that the defendant would pay all expenses and everything plaintiff wanted, after the defendant had objected for the reason that Mr. Brewer had no authority to bind the defendant by an admission made after the accident.' Whereas, his honor should have set aside the verdict and granted a new trial for the reasons therein stated.

"(3) That his honor erred in refusing the defendant's motion for a new trial made upon the eighth ground, as follows, to wit: 'That his honor erred in allowing, over defendant's objection, plaintiff to testify to an admission alleged to have been made by Mr. Brewer long after the injury to plaintiff, and also in allowing plaintiff to testify, over defendant's objection, to an alleged admission by Mr. Seibels long after the accident, both of which had reference to the accident liability insurance company, to which plaintiff's counsel referred in his argument, for the reasons: (a) That it appeared that the admissions were made long after the injury to plaintiff, and for that reason were not binding upon the defendant, as neither Mr. Brewer nor Mr. Seibels had authority to make an admission under such circumstances; and (b) that the plaintiff's counsel thereby sought to bring before the jury the fact that he claims to exist that the defendant had liability insurance, in order to prejudice the jury by a subsequent argument that the verdict would not fall upon the defendant, but upon the liability insurance company.' Whereas, his honor should have set aside the verdict and granted a new trial for the reasons therein stated.

"(4) That his honor erred in refusing the defendant's motion for a new trial made upon the ninth ground, as follows, to wit: 'That the counsel for the plaintiff, in his closing argument to the jury, made remarks and drew inferences from the testimony, not based upon the evidence or the issues in the cause, of a character calculated to inflame the passions and prejudice of the jury, after objection had been made to the use of such language and to the statements and argument of counsel, and after the court had instructed him to confine himself to the record, the said remarks being to the effect that the jury should consider, in determining the amount of their verdict, that it would not sting the glass company, but would fall upon the accident insurance company, being practically a repetition of the statements and argument to which defendant's counsel had objected and which his honor had ruled improper.' Whereas, his honor should have set aside the verdict and granted a new trial for the reason therein stated.

"(5) That his honor erred in refusing the defendant's motion for a new trial upon the ground set forth in the notice duly served upon plaintiff's attorneys, as follows: 'To Messrs. Nelson, Nelson & Gettys, Attorneys for Plaintiff: You will please take notice that, upon the motion for a new trial, to be made before his honor, John S. Wilson, the defendant will rely, in addition to the grounds based upon the minutes of the court, upon the point that the counsel for the plaintiff in his argument to the jury went outside of the record, and made improper remarks to the jury of such a character as to prejudice and inflame them, and upon this point will use an affidavit, a copy of which is hereto attached. Shand & Shand, Lyles & Lyles, Attorneys for Defendant'--and the affidavit of J. B. S. Lyles, attached to said notice, and statements of W. S. and P. H. Nelson, which are a part of the record in this cause. Whereas, his honor should have granted the motion for a new trial upon the grounds and for the reasons set forth therein.

"(6) That his honor erred in allowing plaintiff's attorney, over the objection of defendant, to go outside of the record and improperly argue to the jury that some accident insurance company, in no wise a party to this cause, would pay any verdict that might be rendered against the defendant, and thus to persuade and prejudice the jury that the defendant would not be injured by any verdict; and his honor further erred in allowing such remarks without cautioning or charging the jury that they should not consider them or in some other manner relieving the defendant from the prejudice thereby created in the minds of the jury. Whereas, his honor should have required plaintiff's counsel to keep within the record and refrain from such argument on outside matter of a character to inflame and prejudice the jury, and, having failed in this, he should have cautioned and instructed the jury that such remarks were incompetent and improper and had nothing to do with the case, and that the jury should not consider them at all.

"(7) That his honor erred in refusing defendant's motion, made at the close of plaintiff's testimony, for a nonsuit upon the cause of action for punitive damages, as follows, to wit 'Mr. Lyles: We ask for a nonsuit: First, as to the cause of action for exemplary or punitive damages, on the ground there is no evidence tending to establish the cause of action. ***' The errors being: (a) There was no evidence tending to establish such cause of action; and (b) that by...