Bowden v. Powell, 15119.

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: FISHBURNE, Justice
• Citation: 194 S.C. 482,10 S.E.2d. 8
• Parties: BOWDEN. v. POWELL et al. LOKEY. v. SAME. MASON. v. SAME.
• Docket Number: No. 15119.,15119.
• Decision Date: 08 July 1940

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.

[10 S.E.2d 9]

BONHAM, C. J., dissenting in part

Appeal from Common Pleas Circuit Court of Hampton County; G. Dewey Oxner, Judge.

Separate suits by R. O. Bowden, Charles E. Lokey, and T. A. Mason, against L. R. Powell, Jr., and Henry W. Anderson, as receivers of the Seaboard Air Line Railway, for recovery of actual and punitive damages, alleged to have been suffered by plaintiffs because of failure of defendants to stop a passenger train at a flag station so that plaintiffs could get aboard. From judgments for plaintiffs, the defendants appeal.

Affirmed.

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

[10 S.E.2d 10]

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...