Allen v. Atlanta & Charlotte Air Line Ry. Co., 16306.

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtTAYLOR, Justice.
Citation57 S.E.2d 249,216 S.C. 188
Docket Number16306.
Decision Date10 January 1950

57 S.E.2d 249

216 S.C. 188

CO. et al.

No. 16306.

Supreme Court of South Carolina.

January 10, 1950

[216 S.C. 189] J. Robert Martin, Greenville, for appellant.

[216 S.C. 190] P. A. Bonham, Greenville, Frank G. Tompkins, Columbia, for respondents.

TAYLOR, Justice.

There is substituted for the majority opinion heretofore filed in this case the following opinion which merely tends to strengthen the former majority opinion which will be withdrawn from the files of the Court.

This action, for recovery of damages, actual and punitive, for alleged destruction of appellant's automobile at a public highway crossing at or near Parris Station as a result of being struck by one of respondent's trains, was tried at the January, 1949, term of Common Pleas Court for Greenville County, before Honorable Joseph R. Moss and a jury. At the conclusion of the testimony the attorney for respondents [216 S.C. 191] moved for a direction of verdict as to punitive damages. The trial Judge, upon a consideration of the testimony, reached the conclusion that it was not such as to warrant a verdict in favor of appellant for punitive damages, and indicated his intention to direct a verdict as to same, whereupon the [57 S.E.2d 250] attorney for the appellant took a voluntary nonsuit.

It is appropriate at this point to incorporate verbatim, what transpired as to this matter:

'The Court: * * * I am going to direct a verdict as to punitive damages.

'Mr. Martin: I will take a nonsuit as to actual damages and I will take it to the Supreme Court. I submit a man lost a car there worth $1,500.00

'The Court: All right, if you wish to do that it is satisfactory to the Court. I don't see any willfulness in the case and seeing it that way it is my duty to do so. I don't see any evidence of the failure of the operators of this engine and railroad cars to perform their duty toward the Plaintiff. Feeling that way about it, I feel it is my duty to direct a verdict as to punitive damages and I am going to do so.

'Mr. Bonham: I move for a directed verdict for the whole case; just for the record.

'The Court: I refuse it as to the negligence part of the case. Mr. Martin, do you want to take a nonsuit?

'Mr. Martin: Yes, I will take a nonsuit as to the damages.

'The Court: I grant your motion for a voluntary nonsuit.'

The appellant's only exception upon this appeal is that the trial Judge erred in directing a verdict as to punitive damages.

The respondent made a motion to dismiss the appeal substantially upon the grounds that when the plaintiff took a voluntary nonsuit as to actual damages, he (1) completely [216 S.C. 192] terminated his cause of action; (2) his action in taking a voluntary nonsuit was premature and improvident, from which an appeal does not lie; and (3) that the ruling of the Court applied only to the quantum of damages and did not affect plaintiff's cause of action or his right to recover actual damages.

The respondents contend that appellant's action in taking a voluntary nonsuit was premature, improvident and unnecessary, in that his rights would have been preserved and completely protected by submission to the jury of the question of actual damages, and, in the event he recovered actual damages, by appealing to this court from the directed verdict as to punitive damages. With this position we are in accord. It is fundamental that a voluntary dismissal or nonsuit brings about the same situation or result as if no suit had been brought. 27 C.J.S., Dismissal & Nonsuit, § 39, page 197. It is likewise the general rule that an appeal will not lie at the instance of a plaintiff who has taken a voluntary nonsuit. 4 C.J.S. Appeal and Error, § 121, page 239. There is an exception to this rule that, where the ruling of the court is such as to decide all issues against the plaintiff, the latter, with the view of appealing to test the ruling, may submit to a nonsuit, which, under such circumstances, will not be regarded as voluntary. This principle is well illustrated by the cases of Marlboro Cotton Mills v. O'Neal, 114 S.C. 459, 103 S.E. 781; Southern States Phosphate Co. v. Arthurs, 97 S.C. 358, 81 S.E. 663; and American Publishing Engraving Company v. Gibbs, 59 S.C. 215, 37 S.E. 753. The ruling in question in each instance affected all issues in the case, and rendered it impracticable for the plaintiff to recover or the defendant to prevail, by ruling a defense not maintainable or excluding the testimony, which was the basis of the cause of action or defense.

[216 S.C. 193] The precise question involved in this appeal does not appear to have been heretofore decided by this court, but the rule laid down by the Supreme Court of North Carolina on this point commends itself to us as being logical and reasonable. It is succinctly set forth in Hoss v. Palmer, 150 N.C. 17, 63 S.E. 171, 172, as follows:

'This case is governed by Merrick v. Bedford, 141 N.C. 504, 54 S.E. 415, as will appear by the following language of the court in that case: 'We think, furthermore, that, according to plaintiff's brief and argument, the adverse ruling complained of related solely to the issue of damages, and not to the cause of action, upon the establishment of which the right to recover damages depends. Under the ruling the plaintiff would have recovered some damages much more than nominal. Under the decisions of this court the plaintiff should have continued the trial, and by noting exceptions [57 S.E.2d 251] properly he would have been able to have this court review every ruling made in the court below. We think the nonsuit was voluntary, premature, improvidently taken, and that under our decisions an appeal from a nonsuit under such circumstances will not lie.' In Hayes v. [Atlanta & C. Air Line] Railroad, 140 N.C. 131, 52 S.E. 416, we said that, 'in order to avoid appeals based upon trivial interlocutory decisions, the right thus to proceed has been said to apply ordinarily only to cases where the ruling of the court strikes at the root of the case and precludes a recovery by the plaintiff.' This case is not like Davis v. Ely, 100 N.C. 283, 5 S.E. 239, or Hayes v. [Atlanta C. Air Line] Railroad, supra, which were decided upon special facts and circumstances. The ruling of the court upon the evidence, and the right to recover punitive or exemplary damages under the allegations of the complaint, did not affect the plaintiff's right to recover, but only the quantum of damages. The judgment of nonsuit relates to the cause of action, and not to the amount of damages. If the court decides erroneously as to the law for assessing the damages, the plaintiff can except and have the ruling reviewed here upon an appeal [216 S.C. 194] from the final determination. Midgett v. [Branning] Manufacturing Co., 140 N.C. 361, 53 S.E. 178. The plaintiff's cause of action was left intact by the ruling of the court. A case could never be 'tried out' or ended if, when an adverse ruling is made as to an item of damage, the plaintiff should be permitted to test its correctness in this court by a nonsuit and appeal.

'The nonsuit was prematurely taken, and, under the circumstances of this case, the appeal cannot be entertained.'

It is not seen wherein the appellant could have been prejudiced by the ruling of the court in this case had he permitted the case to be submitted to the jury on the question of actual damages, and, in the event of recovery of such damages, appealed from the ruling directing verdict as to punitive damages. He would have thus adequately preserved his right to recover both kinds of damages.

This proceedure would seem to be suggested by the decision of this Court in Fisher v. J. H. Sheridan Co., 182 S.C. 316, 189 S.E....

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