Bowden v. Powell

• Decision Date: 08 July 1940
• Docket Number: 15119.
• Parties: BOWDEN v. POWELL et al. LOKEY v. SAME. MASON v. SAME.
• Court: South Carolina Supreme Court

10 S.E.2d 8

194 S.C. 482

BOWDEN v. POWELL et al.

LOKEY v. SAME.

MASON v. SAME.

No. 15119.

Supreme Court of South Carolina

July 8, 1940

Harley & Harley, of Barnwell, and Hugh O. Hanna, of Hampton, for appellants.

George Warren and John L. Bowden, both of Hampton, and Thomas M Boulware, of Barnwell, for respondents.

FISHBURNE Justice.

The plaintiffs brought three separate suits for the recovery of damages, actual and punitive, alleged to have been suffered by them because of the failure of the defendants to stop a passenger train at Myers, a flag station in Hampton County, so that they could get aboard. The causes of action arose out of the same facts and circumstances. The plaintiffs allege that the conduct of the defendants in failing to stop the train for the plaintiffs was negligent willful, wanton, malicious, and in utter willful disregard of the plaintiffs' rights and the defendants' duty.

By agreement of counsel the three cases were tried together, and resulted in a verdict and judgment for each plaintiff in the sum of $5, actual damages, and $495, punitive damages. The defendants have appealed in each case, but in accordance with the stipulation of counsel, the appeals will be considered and passed upon as one.

Prior to the trial of the case, the Circuit Court overruled a motion made by defendants to strike from paragraph 2 of the complaint the following words, to wit, "by pointing toward the ground with the thumb of his right hand, to 'Go to hell,"' upon the ground that the words are irrelevant, redundant, and constitute a mere conclusion.

It is alleged in paragraph 2 that when the engineer operating the defendants' passenger train passed Myers, without stopping, he looked down from his position on the engine at the plaintiffs, who were waiting at the flag station to board the train, and by pointing his thumb to the ground indicated that they should "go to hell".

An order refusing to strike out is not appealable. Caldwell v. McCaw, 141 S.C. 86, 139 S.E. 174; Nettles v Nettles, 138 S.C. 318, 136 S.E. 297; Osteen v Atlantic Coast Line R. Co., 93 S.C. 61, 76 S.E. 25; Harbert v. Atlantic & C. A. L. R. Co., 74 S.C. 13, 53 S.E. 1001, 1002. In the Harbert case, the Court said: "The omission to provide for appeal from an order refusing to strike out is significant, and there was good reason for it. If the circuit court errs in striking out any material allegations of a good cause of action or good defense, it is impossible to remedy it in the course of the trial, because the evidence and the issues submitted to the jury cannot be extended beyond the issues made by the pleading, and on appeal from the final judgment this court could not say there was error of law in confining the evidence and charge to the pleadings. On the other hand, if the circuit court errs in refusing to strike out any pleading or portion of a pleading as irrelevant, the error of submitting an irrelevant issue to the jury may be corrected on appeal from the charge actually made, or from refusal of requests to charge. This view of the matter impairs no substantial right, and prevents multiplicity of useless appeals and the delay and inconvenience which would be incident thereto."

The case of Nettles v. Nettles, supra, is an instance in which the rights of the appealing party were properly reserved by duly making objections to the testimony. But in the case at bar, the defendants failed to do this. Nor did they follow the procedure pointed out in the quoted excerpt from the opinion in Harbert v. Railroad Co., supra.

Appellants assign error to the lower Court in allowing the plaintiff, R. O. Bowden, to testify, over the objection of the defendants, that the alleged gesture made by the engineer with his thumb signified "go to hell", upon the grounds that such testimony was highly prejudicial, and that there was no proof that the sign was commonly known to mean, "go to hell". When the plaintiff Bowden testified with reference to the derisive gesture, but before actually interpreting its meaning, counsel for appellants "entered an objection just for the sake of the record, upon the ground, this testimony is a mere conclusion on the part of this witness." The trial Judge, without making any ruling, suggested that objecting counsel wait and see what the witness was going to testify about. Later, in his direct examination, the witness, Bowden, testified that the thumb gesture used by the engineer meant "go to hell", and counsel for appellants renewed their objection, which the Court overruled.

We do not deem it necessary to determine whether the testimony objected to was admissible, because if error was committed in its admission, such error was cured by the act of the appellants in bringing out the same evidence on cross-examination. Appellant is not in a position to complain, because upon cross-examination of plaintiffs' witnesses, the identical testimony was brought out in great detail.

The general rule is that error in the admission of evidence offered by one party is cured by the act of the adverse party in introducing practically the same evidence, or bringing it out on cross-examination, but not by his offering evidence in rebuttal. 5 C.J.S., Appeal and Error, § 1735, page 1018.

It has been repeatedly held by this Court that where similar testimony is brought out without reservation of the objection, it will cure the alleged objection made in chief, and make the testimony competent. McLane v. Reliance Life Ins. Co., 192 S.C. 245, 6 S.E.2d 13; Smith v. Metropolitan Life Ins. Co., 191 S.C. 310, 4 S.E.2d 270; Snipes v. Augusta-Aiken Ry. & Electric Corp., 151 S.C. 391, 149 S.E. 111.

Appellants complain because the Circuit Court overruled their motion for a directed verdict as to punitive damages. A motion for a new trial was likewise overruled.

The testimony for the respondents tends to show that the three plaintiffs had been in the habit for fifteen years or more of making periodic trips to a hunting lodge owned by the plaintiff, Bowden, and located on the Savannah River, about one-half mile from Myers, the flag station. Throughout this period it was their custom upon leaving the camp, to flag the Sea-Board's passenger train at Myers for the purpose of becoming passengers. About 4 o'clock on the afternoon of March 27, 1939, they left camp, and reached the flag station about thirty minutes ahead of train time. It is admitted that it was the duty of the railroad company to stop its train at Myers when properly flagged. There is no depot or other building at Myers. The place is marked merely by a board, and is recognized as a regular flagging point for those who wish to become passengers.

Approaching Myers from South to North the track curves for two or three hundred yards, and on the occasion...