Baker v. Weaver, 0008

• Court: Court of Appeals of South Carolina
• Citation: 279 S.C. 479,309 S.E.2d 770
• Decision Date: 28 November 1983
• Docket Number: No. 0008,0008
• Parties: W.A. BAKER, Jr., d/b/a North 17 Joiner Shop, Respondent, v. Legrand WEAVER, Appellant.

Page 770

309 S.E.2d 770 279 S.C. 479 W.A. BAKER, Jr., d/b/a North 17 Joiner Shop, Respondent,
v.
Legrand WEAVER, Appellant. No. 0008. Court of Appeals of South Carolina. Nov. 28, 1983.

Page 771

[279 S.C. 480] E. LeRoy Nettles, of Nettles, Turbeville & Reddeck, Lake City, for appellant.

William McG. Morrison, Jr., and J. Lawrence Duffy, Jr., Charleston, for respondent.

GOOLSBY, Judge:

The respondent W.A. Baker, Jr., a joiner, brought this action against the appellant Legrand Weaver, a boat owner, to collect payment for repairs done to Weaver's boat. In a counterclaim,[279 S.C. 481] Weaver sought damages because the repairs were not performed in a workmanlike manner and because the repairs were delayed. The jury found in favor of Baker, and Weaver appeals. We reverse and remand for a new trial.

The sole issue presented by this appeal involves Weaver's request for an additional jury instruction sought by him in connection with his counterclaim.

In his answer and counterclaim, Weaver alleged that he contracted for "[Baker] to make repairs to his boat" but that "[Baker did] not properly perform the work on the boat ... in a workmanlike manner...."

Testimony disclosed at trial that the repairs in question were not done by Baker but rather by third parties who Baker arranged to carry out the work. A factual dispute developed regarding whether Baker was responsible for the allegedly shoddy and delinquent work of the third party repairmen. Baker testified he arranged for the third party repairmen to work on the boat as an accommodation and favor to Weaver, and Weaver testified he relied on Baker to have the repairs done.

After the court charged the jury on the law in the case, Weaver's counsel, outside the jury's presence, asked the court to charge

... the principle that if a party has an obligation to another party and in turn gets some other person to discharge that obligation, the party getting the other person to discharge that obligation is responsible for the failure of the party secured to discharge the obligation if they fail to do so.

The trial judge refused the request. He believed his charge covered the substance of the additional request.

Weaver's sole exception violates Supreme Court Rule 4, Section 6, because it does not contain a complete assignment of error. In spite of that, we have elected to consider the exception and chosen not to dispose of the case on technical grounds because the issue sought to be raised may readily be determined and because the appeal is meritorious. Sandel v. Cousins, 266 S.C. 19, 221 S.E.2d 111 (1975).

We agree with Weaver's contention that the court's charge did not embrace the requested additional instruction. No [279 S.C. 482] portion of the court's charge dealt with an assignor's liability for an assignee's defective performance.

In South Carolina, a trial judge must "declare the law" to the jury. See S.C. Const. art. V, § 17 (1895). Instructions to the jury, however, should be confined to the issues made by the pleadings and supported by the evidence. Tucker v. Reynolds, 268 S.C. 330, 233 S.E.2d 402 (1977);

Page 772

Kelly v. Brazell, 253 S.C. 564, 172 S.E.2d 304 (1970). Where a request to charge is timely made and involves a controlling legal principle, a refusal by the trial judge to charge the request constitutes...