Rouk v. Virginia-Carolina Chemical Co.

• Decision Date: 26 January 1918
• Docket Number: 9885.
• Citation: 95 S.E. 79,108 S.C. 397
• Parties: ROUK v. VIRGINIA-CAROLINA CHEMICAL CO. ET AL.
• Court: South Carolina Supreme Court

95 S.E. 79

108 S.C. 397

ROUK v. VIRGINIA-CAROLINA CHEMICAL CO. ET AL.

No. 9885.

Supreme Court of South Carolina

January 26, 1918

Appeal from Common Pleas Circuit Court of Charleston County; I. W Bowman, Judge.

Action by Annie T. Rouk, as administratrix of Henry M. Rouk deceased, against the Virginia-Carolina Chemical Company and another. From a judgment for plaintiff, the defendant named appeals . Affirmed.

Mordecai Gadsden & Rutledge and Mitchell & Smith, all of Charleston for appellant.

Logan & Grace, of Charleston, for respondent.

WATTS J.

This is an action for damages for the alleged death of the husband of the plaintiff while in the employment of the defendant at one of its factories near Charleston. The case was first tried in January, 1916, before Special Judge Edward McIver, and resulted in a verdict in favor of the plaintiff for $1,000. Judge McIver granted a new trial for inadequacy of damages. The case then came on for trial before Judge Bowman and a jury in January, 1917, and resulted in a verdict in favor of plaintiff for $12,500. After entry of judgment defendant appeals, and by their exceptions allege error based upon the improper admission of evidence prejudicial to the defendant over objection and refusal of trial judge to grant defendant's motion for a nonsuit, and refusal to direct a verdict in favor of the defendant.

The first exception is:

"That the trial judge erred in admitting in evidence, over defendant's objection, the certificate of death of the city health office to prove the cause of the alleged death of Henry M. Rouk, the said certificate being hearsay and incompetent to prove the cause of death, which should have been established by direct proof, and depriving defendant of all opportunity for cross-examination of plaintiff's doctor as to the cause of death, and being the only evidence of cause of death in the whole record and prejudicial to defendant."

The admission of the evidence complained of was not prejudicial to the defendant. The paper offered in evidence was not a copy, but the original, whether admitting the certificate made by Dr. Mitchell filed with the board of health was error or not was harmless, and the cross-examination of him could not have helped the defendant.

The evidence conclusively shows that when Dr. Mitchell was called in to see the deceased he made no examination of the deceased. It was admitted by appellant's counsel in the argument in this court that Dr. Mitchell came in the court during the trial and before case was submitted to the jury and they did not request his honor to have him sworn for the purpose of examination or cross-examination of him. Had this request been made, no doubt his honor under the circumstances would have allowed it. In response to a question by a member of this court appellant's counsel admitted that they did not argue to the jury that the deceased's death was not brought about as alleged in the complaint, which was gas poison. The admission of this certificate was not...