Bailey v. Smith

• Decision Date: 12 June 1925
• Docket Number: 11785.
• Citation: 128 S.E. 423,132 S.C. 212
• Parties: BAILEY v. SMITH ET AL.
• Court: South Carolina Supreme Court

128 S.E. 423

132 S.C. 212

BAILEY v. SMITH ET AL.

No. 11785.

Supreme Court of South Carolina

June 12, 1925

Appeal from Common Pleas Circuit Court of Richland County; M. L Bonham, Judge.

Action by W. E. Bailey against H. C. Smith and Kate Miller. Judgment was rendered for plaintiff against defendant Smith for less relief than demanded, and he appeals. Affirmed.

The following are appellant's exceptions:

Plaintiff appellant excepts to the ruling of the court upon the following grounds:

(1) That his honor erred in overruling plaintiff's motion for direction of a verdict against both defendants because the only inference to be drawn from the evidence is that there was negligence on the part of both defendants constituting the proximate cause of the injury.

(2) That his honor erred in overruling the motion of plaintiff for the direction of a verdict against the defendant Miss Kate Miller, because the only inference to be drawn from the testimony is that she was negligent and that her negligence was a proximate cause of the injury.

(3) That his honor erred in directing a verdict for the defendants as to punitive damages, because there was evidence proper to be submitted to the jury and tending to show: (a) That the defendants and each of them were guilty of gross and reckless negligence in leaving the machine standing in gear and without brakes in dangerous proximity to a dangerous and muchly traveled street and sidewalk. (b) There was evidence proper to submit to the jury tending to show such gross negligence as indicated a willful and conscious indifference to the rights of the public and the plaintiff.

(4) That his honor erred in charging the jury of his own motion twice, and again at the request of defendant, that the jury could not find any verdict for punitive damages against either of the defendants, because there was evidence proper to be submitted to the jury and tending to show: (a) That the defendants and each of them were guilty of gross and reckless negligence in leaving the machine standing in gear and without brakes in dangerous proximity to a dangerous and muchly traveled street and sidewalk. (b) There was evidence proper to submit to the jury tending to show such gross negligence as indicated a willful and conscious indifference to the rights of the public and the plaintiff.

(5) That his honor erred in charging the jury: "You are to determine whether the defendant Smith was the agent of his codefendant, Miss Kate Miller, in this case. If you find he was not, then you cannot attribute any negligence of which you may find, by the preponderance of the evidence, he was guilty, to her"--because: (a) The evidence shows and no reasonable inference can be drawn from the evidence except that the defendant Smith was acting as agent of the defendant Miss Miller at the time of the occurrence, and in the matter which caused the injury to plaintiff.

(6) That his honor erred in adding to the plaintiff's fourth request to charge, as to the burden of proof being on the defendant Miss Miller to show that Smith was not her agent: "That is true, as a general proposition of law, but in this case the plaintiff has alleged that Smith was the agent of the defendant Miss Kate Miller, and it is incumbent upon the plaintiff to prove all the material allegations of the complaint by the preponderance of the evidence"--because: (a) The evidence which was introduced in this case and undisputed showed that the burden was on Miss Miller, the owner of the automobile, and the party who had placed the defendant Smith in possession of it just a moment before the accident, to show a lack of agency or authority.

(7) That his honor erred in charging the jury, at the request of defendant: " '(1) I charge you in this case that if you should find by the preponderance of the evidence that the defendant Miss Miller delivered her car to the employee of the Barrow-Chevrolet Company at the Union Bank building in order to have them take it to their place of business and do work on it, you could not find any verdict against Miss Miller.' To which I have added: 'Unless you find that Smith was the agent of Miss Miller, and that he was negligent, and his negligence was a proximate cause of the accident.' I further add to that: 'If you find that Miss Miller was negligent, and that her negligence was a proximate cause of the accident, you can still find against her' "--because: (a) If Barrow-Chevrolet Company was the agent of the defendant Miss Miller, then the act of its employee would have been her act, and she would be responsible for the same. (b) If the defendant Miss Miller at the time of the delivery of the car to Barrow-Chevrolet Company, had negligently or willfully placed and left it in a dangerous condition, and this dangerous condition in which she left it was the proximate cause of the injury to the plaintiff, she would have been liable for it.

(8) That his honor erred in charging the jury, at the request of defendant: " '(2) I charge you that while a verdict against Mr. Smith would be a lien on the car of the defendant Miss Miller, that you cannot find any personal verdict against Miss Miller if you believe she delivered her car to the employee of the Barrow-Chevrolet Company for them to work on it, for which she was to pay them.' And I have added: 'Unless you find that Smith was the agent of Miss Miller, and that he was negligent, and that his negligence was the proximate cause of the accident.' And to this I have also added: 'That if Miss Miller was negligent, and her negligence was the proximate cause of the accident, you could still find against her' "--because: (a) If Barrow-Chevrolet Company was the agent of the defendant Miss Miller, then the act of its employee would have been her act, and she would be responsible for the same. (b) If the defendant Miss Miller at the time of the delivery of the car to Barrow-Chevrolet Company, had negligently or willfully placed and left it in a dangerous condition, and this dangerous condition in which she left it was the proximate cause of the injury to the plaintiff, she would have been liable for it.

(9) That his honor erred in charging the jury at the request of the defendant: "(4) I charge you that if you find under the evidence in this case that the defendant Miss Miller delivered her automobile to the Barrow-Chevrolet Company for them to work on same, no negligence on the part of the Barrow-Chevrolet Company could be attributable to Miss Miller; therefore you cannot find any verdict in this case against the defendant Miss Miller, unless you find that, at the time of the accident, Smith was the agent of Miss Miller, and unless you find that he was negligent and that his negligence was the proximate cause of the injuries"--because: (a) The said charge is a charge on the facts and undertakes to draw a conclusion on the facts. (b) If the defendant Miss Miller left the car in a negligent and dangerous condition, which condition contributed to the injury as a proximate cause thereof, she would be liable even though there was negligence on the part of Barrow-Chevrolet Company, or negligence on the part of Smith.

(10) That his honor erred in charging the jury at the close of his charge and at the request of defendant: "Mr. Herbert: I would ask you to give the jury a definition of what constitutes agency; and I would like to have your honor give them the illustration, that if you leave an automobile with some one to have it fixed, it would not constitute such an agency that the agent's negligence would be attributable to the owner of the automobile. The Court: That is true; but if the automobile--we may use by way of illustration--was turned over to a person for the benefit or convenience of the owner of the automobile, it becomes a question for the jury whether the person to whom it was turned over was the agent of the owner of the automobile at the time of the occurrence in controversy"--because: (a) The same was a charge on the facts and an intimation of the conclusion to be drawn from the facts. (b) If a party delivers an automobile to another to be fixed and at the time of delivery negligently or willfully delivers the car in a dangerous condition which is a proximate cause of the injury, such person would be responsible and could not escape responsibility for the injury caused thereby, although an act of another party combined or contributed with such act in causing the injury.

(c) The facts in this case left no other reasonable inference, but that the defendant Smith was acting as agent of the defendant, Miss Miller, at the time of the occurrence in handling the automobile.

(11) That his honor erred in refusing the motion for new trial made by the plaintiff, because: (a) As shown in ground 1, the undisputed evidence showed that the injury and damage to the plaintiff was serious and severe; that the plaintiff was earning $4 per day at the time of the injury, and had been unable to earn anything since. That the doctor's and hospital bill amounted to $200; that the injury was serious, and that the amount of the award was totally inadequate. (b) The evidence showed, and no other inference could be drawn therefrom, that the defendant Miss Miller was guilty of negligence in leaving the car in gear without brakes set, in and near a crowded street and sidewalk, and this was a proximate cause of the injury. (c) The evidence showed, and no other inference could be drawn, that the machine was in gear, without brakes or with imperfect and inadequate brakes, and that the defendant Miss Miller was responsible therefor, and it was a proximate cause of the injury. (d) Under all the evidence, a verdict should have been rendered against both defendants for a larger amount.

D. W Robinson and D....