Key v. Carolina &. N. W. Ry. Co

• Citation: 147 S.E. 625
• Decision Date: 05 April 1929
• Docket Number: (No. 12633.)
• Court: South Carolina Supreme Court
• Parties: KEY v. CAROLINA &. N. W. RY. CO.

147 S.E. 625

KEY
v.
CAROLINA &. N. W. RY. CO.

(No. 12633.)

Supreme Court of South Carolina.

April 5, 1929.

[147 S.E. 625]

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

Action by F. J. Key against the Carolina & Northwestern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded for new trial.

Frank G. Tompkins, of Columbia, John A. Marion, of York, and Glenn & MacAulay, of Chester, for appellant.

Hemphill & Hemphill and Gaston, Hamilton & Gaston, all of Chester, for respondent.

BLEASE, J. This is an action for punitive damages, growing out of injuries received by the respondent in a collision of an automobile, in which the respondent was riding, and a train of the defendant at a grade crossing in Chester county. In the trial before his honor, Judge John S. Wilson, the jury rendered a verdict in favor of the respondent for both actual and punitive damages. Defendant has appealed to this court on 27 exceptions.

The fourth defense of the answer of the defendant contained the following allegations:

"(1) That on or about March ——, 1926, the plaintiff agreed that if the defendant would pay in full all charges and expenses for doctors, medicine and hospital bills incurred and which should be incurred by or on behalf of the plaintiff in and for the treatment of the injuries sustained by him at the time of the collision referred to in the complaint, while a patient at the Chester Sanitorium, a hospital in the City of Chester, where plaintiff was and had been a patient since the date of his said injuries, he would fully and finally release and discharge the defendant from any and all further liability to him of any character whatsoever on account of the alleged claim for damages which is made the basis of his alleged cause of action herein; that in consideration of plaintiff's said covenant and agreement this defendant, by way of compromise settlement of plaintiff's alleged claim, agreed and contracted to pay the charges and expenses for doctor's medical and hospital bills incurred, and which should be incurred, by and on behalf of the plaintiff at said Chester Sanitorium; and that pursuant thereto this defendant fully performed and executed said agreement on its part by assuming, by and with the consent of the Chester Sanitorium, the payment of the said charges and expenses to said Chester Sanitorium, thereby incurring, and relieving the plaintiff from, liability for the payment to said Chester...