Brown v. Walker Lumber Co
| Decision Date | 29 April 1924 |
| Docket Number | (No. 11493.) |
| Citation | 122 S.E. 670 |
| Parties | BROWN. v. WALKER LUMBER CO. |
| Court | South Carolina Supreme Court |
Appeal from Richland County Court; M. S. Whaley, Judge.
Action by Eon Brown against the Walker Lumber Company. Judgment for defendant entered on a directed verdict, and plaintiff appeals. Affirmed.
Graydon & Graydon, of Columbia, for appellant.
Benet, Shand & McGowan, of Columbia, for respondent.
MARION, J. Lon Brown, plaintiff appellant, sued the defendant, R. W. Walker Lumber Company for personal injuries alleged to have been sustained by Brown while in the employ of the defendant. The defendant answered, setting up, among other defenses, that the plaintiff had executed and delivered to the defendant a written release under seal whereby for the sole consideration of $75 plaintiff released the defendant from all claims growing out of or to grow out of the alleged injuries. The court, on defendant's motion, required the plaintiff to reply to that part of the answer setting up the release and to state in the reply whether or not the consideration mentioned in the release had been repaid or tendered. Plaintiff filed a reply admitting the receipt of the $75, and alleging that it was not paid by the defendant lumber company but by an indemnity insurance company and further that the release was obtained through fraud and misrepresentations. There was no allegation of repayment or tender. The defendant demurred to this reply, and the demurrer was overruled. The ease then went to trial. At the conclusion of the evidence offered by plaintiff, motion was made for a nonsuit, which was refused. The defendant then rested its case, and a motion for direction of verdict in favor of defendant was granted.
Appellant's first contention is that the trial court, having refused a nonsuit, and the defendant having offered no evidence, could not then proceed to direct a verdict; that is, that the presiding judge was precluded by his ruling upon the nonsuit from afterwards granting the motion for a directed verdict. On the trial of a jury cause it is entirely competent for the trial judge, in the exercise of a sound discretion, to change or reverse any ruling prior to the return of a verdict by the jury. In so far as the ruling on the motion for the directed verdict was logically inconsistent with the ruling on the motion to nonsuit, the subsequent ruling was merely a reversal of the former. The ruling on the nonsuit was not and could not become the law of the case until the cause passed beyond the control of the trial court. The trial judge, therefore, was in no wise legally bound by the refusal of the nonsuit to refuse the direction of a verdict
Appellant's second proposition, em-braced in exceptions 2, 3, 4, and 5, is substantially this: That the verdict was erroneously directed in that the plaintiff was under no legal obligation to return or tender to the defendant the amount paid the plaintiff for the execution of the release because the money had not been paid "by the defendant or for the benefit of the defendant" but "by an indemnity insurance company for its own benefit." It is contended that there was evidence tending to establish that the release was procured and the consideration therefor paid by an insurance company; that the defendant had nothing to do with the release, no legal connection with it, and was entitled to base thereon no right or equity to a return of the money. The undisputed evidence established that the defendant lumber company carried an ordinary policy of insurance against employer's liability, that the release executed by the plaintiff was procured by a, representative of the insurance company, and the consideration therefor paid by the Insurance company in compliance with its contractual obligation to indemnify the lumber company against liability on account of the plaintiff's injuries; and that the release in writing acknowledged the payment "by the R. K. Walker Lumber Company" and the receipt by plaintiff of the sum of $75 in consideration of which the plaintiff released and discharged the R. K. Walker Lumber Company from all claims, demands, etc., resulting from an accident on or about a certain date at the works of the lumber company. In that state of facts the contention that the money for the release was not paid by the defendant or for the benefit of the defendant, we think, is patently untenable. The money was paid by authority of the defendant for the defendant's benefit through an agency the defendant had provided for that very purpose. The claim released was a claim not against the insurance company but against the lumber company. See Horsford v. Glass Co., 92 S. C. 258, 75 S. E. 533; Burgess v. Germany-Roy-Brown Co., 120 S. C. 285, 113 S. E. 118; Duke v. Parker (S. C.) 118 S. E. 802. If the release was valid, it fully protected the lumber company. If in order to repudiate the release...
To continue reading
Request your trial
-
Fanchon & Marco v. Leahy
... ... 394; Elgin v. Snyder, 118 P. 280; ... Dellinger v. Gillespie, 24 S.E. 538; Brown v ... Walker Lbr. Co., 122 S.E. 670; Galveston C. C. Co ... v. Galveston, etc., Ry. Co., 284 ... ...
-
Cobb v. Benjamin, 2626
...a release, the release protects the insured. The money for a release is paid by or on behalf of the insured. Brown v. Walker Lumber Co., 128 S.C. 161, 165, 122 S.E. 670, 671 (1924). Therefore, the consideration for the settlement agreement protects State Farm's insured, Benjamin. Nationwide......
-
Hyman v. Ford Motor Co.
...Hyman has clearly waived his right to avoid the release on claims of duress and has affirmed the release. See Brown v. Walker Lumber Co., 128 S.C. 161, 122 S.E. 670, 671-672 (1924). Moreover, the doctrine of ratification precludes Hyman from avoiding the effects of the release even if it wa......
-
Walker v. Mcdonald
...107 S. C. 465, 92 S. E. 1046; Cline v. R. Co., 113 S. C. 440, 102 S. E. 641; Hughes v. R. Co., 92 S, C. 1, 75 S. E. 214; Brown v. Walker, 128 S. C. 161, 122 S. E. 670. The actions therefore could not have been united in the same complaint, and the defendant's demurrer upon this ground shoul......