BAKER
Justice.
This is
an action for personal injury in which actual and punitive
damages were sought.
Upon a
trial of the case the jury rendered a verdict as follows
"We find for the plaintiff Twenty-five hundred
($2500.00) Dollars punitive damages." When this verdict
was published the trial Judge asked if there was any
objection to it, and received no response from either side. A
motion for a new trial was noted by defendant (respondent)
within the term, which by consent was marked
"heard". This was at the September term of Court.
At the November term of the Court, the motion for a new trial
was taken up, the defendant (respondent) submitting in
writing the grounds of the motion, and furnishing a copy
thereof to plaintiff's (appellant's) counsel, the
first ground being: "1. The plaintiff having by his
action, sought damages for traumatic injuries, the verdict of
the jury for punitive damages alone, expressly refuted a
finding as to actual damages, thereby rendering a verdict
improper and of no avail."
Before
any argument was made, and while defendant's
(respondent's) counsel was reading to the Court the
grounds of the motion for a new trial, plaintiff's
(appellant's) counsel stated to the Court that plaintiff
(appellant) would consent to a new trial upon defendant's
(respondent's) first ground, which is set out above.
It was
then and for the first time that defendant's
(respondent's) counsel made an additional motion, based
upon the character of the verdict and the holding of this
Court in the case of Cook v. Atlantic Coast
Line R. Co., 183 S.C. 279, 190 S.E. 923, to set aside
the verdict and enter judgment for the defendant (respondent)
non obstante veredicto.
"Plaintiff's
(appellant's) counsel in oral argument attempted to
distinguish the Cook case from the case at bar. Whereupon,
the trial Judge stated that the only question he was
concerned with was whether or not he was bound by the Cook
case and that he would allow plaintiff (appellant) to submit
written brief on that point. The same day plaintiff
(appellant) submitted brief, his main contention being that
the court was without jurisdiction to entertain such motion
and that such issue was not timely made."
We now
quote from the order from which the appeal is taken:
"During
the trial of this case, the Court was under the impression
and so charged the jury as a matter of law, that contraband
liquor is not subject to larceny. I am now convinced that I
was in error, in this part of the charge, and certainly would
have granted a new trial on this ground. I am now further of
the opinion, that a nonsuit should have been granted when
requested.
"However,
since plaintiff by his action is seeking damages solely for
bodily or traumatic injuries, the finding of the jury for
punitive damages alone, in view of the principle announced in
the Cook case above cited, expressly refutes the finding of
the jury as to actual damage, and the jury having absolved
the defendant of inflicting actual damages upon the
plaintiff, then there is no legal liability upon which to
predicate a verdict for punitive damages, and there remains
nothing for this Court to do except set aside the verdict of
the jury and enter judgment for the defendant, and,
"It
is so ordered."
The
notice of appeal is wondered as reproduced below:
"Please Take Notice, That the plaintiff intends and does
hereby appeal to the Supreme Court of the State of South
Carolina from the Order of Judge Mann in the above stated
case, and will ask the said Supreme Court to
reverse the ruling of said Order and for judgment on the
verdict in favor of the plaintiff, and failing in that, ask
the Supreme Court to grant a new trial de novo."
Appellant's
first three exceptions raise the issue that the trial Judge
was without jurisdiction to hear any motion in the cause,
under the circumstances hereinbefore related, other than the
motion for a new trial.
With
this position we are in accord. The identical question was
passed upon Rhodes v. Southern Ry. Co., 139 S.C.
139, 137 S.E. 434, 436, and we quote from the opinion in that
case:
"When
the verdict of the jury, quoted in full above, was returned
counsel for plaintiff stated to the court that he thought it
would be proper to instruct the jury about the wording of the
verdict and get it in the usual form. The trial judge
announced that he thought the verdict was perfectly plain.
Attorneys for the defendants made no motion or any comment as
to the form of the verdict. After the verdict was rendered
and the jury discharged, the attorneys for the railway
company made a motion for a new trial. This occurred late at
night and by consent of all parties it was agreed that this
motion would be heard at Laurens after the final adjournment
of the court of common pleas of Greenwood county. The trial
judge entered the motion for a new trial on the calendar, and
marked it 'heard.' No other entry was made.
"When
the attorneys for the parties appeared at Laurens to argue
the motion for a new trial, the plaintiff's attorney
announced that he was not averse to the granting of the
motion, and Judge Shipp stated that he would grant the same
but the attorney for the appellant withdrew that motion. The
appellant's attorney then moved that the verdict in the
cause be set aside, and judgment entered for the defendants
generally, upon these grounds, stated briefly: (1) That the
only negligence charged in the complaint against the railway
company were acts of negligence alleged
against the engineer, Carter, and that the verdict of...
