Bussey v. Charleston & W.C. Ry. Co.

• Decision Date: 06 September 1906
• Parties: BUSSEY v. CHARLESTON & W. C. RY. CO.
• Court: South Carolina Supreme Court

55 S.E. 163

75 S.C. 116

BUSSEY v. CHARLESTON & W. C. RY. CO.

Supreme Court of South Carolina

September 6, 1906

Appeal from Common Pleas Circuit Court of Greenville County Dantzeler, Judge.

Action by Julia Emmie Bussey, by her guardian, against the Charleston & Western Carolina Railway Company. Judgment for plaintiff. Defendant appeals. Affirmed.

The following are defendant's exceptions:

"1. Because, as it is respectfully submitted, the presiding judge erred in his rulings upon the introduction of testimony in the following particulars: (1) In allowing the plaintiff to testify that the defendant's conductor between Fountain Inn and Laurens, when he took up her ticket told her that the form of it was not good, when such testimony was not in support of any allegation in the complaint, but was entirely outside of the issues made therein, and it was, therefore, incompetent. (2) In allowing the testimony just mentioned when, under the law, statements or admissions of this character by the defendant's conductor cannot bind the defendant, as there was no testimony that he had authority to so bind defendant, and the testimony was further incompetent on this ground. (3) In allowing the plaintiff to testify to conversations between her and one Richardson in the city of Louisville, and that the said party stated to her that her ticket was all right in support of a claim for damages on the ground that such ticket was not a good ticket, when there was no such issue raised in the case, and such testimony was therefore, incompetent. (4) In allowing the plaintiff to testify that the conductor on the Queen & Crescent Road said to her that the ticket she had was not a valid one, and was not worth the paper it was written on, in support of her claim for damages on the ground that she was not furnished a valid ticket, when there was no such allegation in the complaint and no such issue in the case, and when such conductor had no authority to bind defendant to such admission, and, therefore, such testimony was incompetent. (5) In allowing the plaintiff's counsel to ask the question of the defendant's witness, Aiken, and requiring the same to be answered, as to whether or not the ticket in this case was valid or invalid, regular or irregular, and why the same was irregular, when there was no allegation in the complaint that the defendant had failed to furnish a good and valid ticket, and there was no such issue raised in the pleadings, and such testimony was, therefore, incompetent. (6) In allowing the plaintiff's counsel to ask the question of the defendant's witness, Aiken, and requiring the same to be answered, as to whether the ticket in this case was valid or invalid, regular or irregular, and why the same was irregular, when the answer

to such question was a mere matter of opinion upon a legal question of the validity of such ticket, and for that further reason, such testimony was incompetent. (7) In allowing the plaintiff's counsel to ask the following question of the defendant's witness, Aiken, and requiring such witness to answer the same, to wit: 'Did you recognize that that ticket was binding upon your railroad?' when such question and the answer thereto was incompetent, for the reason that it was simply giving the opinion of the witness upon a matter of law, which should have been decided by the court. (8) In not allowing the witness, C. L. Townsend, to answer the following question, and in sustaining the plaintiff's objection thereto, namely: 'Did you think that was a good ticket when you sold it?' when such question and the answer thereto was competent in this case, being in support of the defense that there was not a particle of malice, or willfulness in the conduct of the said Townsend, as agent of the railway company, in issuing such ticket. (9) In allowing the plaintiff's counsel to ask the witness, Townsend, the question, and requiring him to answer it, 'Did you have any other tickets for sale at the time except this?' the error being that such testimony was incompetent, for that it tended to prove facts not alleged in the complaint, and it was, therefore, irrelevant. (10) In ruling that the testimony referred to in the ninth exception was competent on cross-examination, for the reason, as alleged by the court, that defendant's counsel had been allowed to ask the same witness in relation to the ticket, when, it is respectfully submitted, that the question referred to by the presiding judge had been ruled incompetent, and when, further, even if allowed, such ruling would not be a justification, for the reason that the question asked by defendant's counsel was merely for the purpose of showing that there was no willful issuing of an illegal or irregular ticket by the defendant.

2. Because, as it is respectfully submitted, the presiding judge erred in refusing to grant the defendant's motion for a nonsuit at the close of the plaintiff's testimony, when such motion should have been granted on the following grounds, and it was error of law to refuse to do so: (1) There was absolutely no testimony tending to show any facts to go to the jury to entitle the plaintiff to punitive damages. (2) There being no testimony to go to the jury, upon which a verdict for punitive damages can stand, there was no issue for the jury at all, for the reason that the action was for punitive damages only, and hence, there could be no recovery of compensatory damages. (3) There was no testimony upon which the jury could render a verdict against the defendant, Charleston & Western Carolina Railway Co., for either punitive or compensatory damages, because the contract introduced in evidence showed that the Charleston & Western Carolina Railway Co. was not to be liable beyond its own lines. (4) Because the evidence showed that if there was any wrong done to the plaintiff, it was done by a railroad company other than the defendant Charleston & Western Carolina Railway Co.

3. Because, as it is respectfully submitted, the presiding judge erred in holding on the motion made by the defendant at the close of plaintiff's testimony for a nonsuit, that such motion should not be granted, because there was no evidence that the Queen & Crescent Railroad was a party to the contract evidenced by the ticket of the defendant Charleston & Western Carolina Railway Co., when the undisputed evidence on the part of the plaintiff showed that the ticket issued by the defendant had been recognized by the Queen Crescent Railroad as a valid ticket, and that that company had allowed the plaintiff to ride on it on her trip to Louisville, Ky.

4. Because, as it is respectfully submitted, the presiding judge erred in refusing to grant the defendant's motion for a nonsuit at the close of all the evidence in the case, and in not then holding that there was no evidence to go to the jury tending to show that the defendant, Charleston & Western Carolina Railway Company, had been guilty of any willfulness or wantonness whatsoever towards the plaintiff, and in not therefore granting the defendant's motion for a nonsuit.

5. Because, as it is respectfully submitted, the presiding judge erred in charging the jury as a matter of law that the defendant, in the ticket issued by it, guarantied the plaintiff transportation from Fountain Inn, S. C., to Louisville, Ky., and from Louisville, Ky., to Fountain Inn, S. C., when in such ticket the defendant did not make such guaranty for itself, but only as agent beyond its own lines.

6. Because, as it is respectfully submitted, the presiding judge erred in charging the jury that the clause in the contract upon the face of the ticket in evidence, reading as follows: ' (10) Responsibility, in selling this reduced rate ticket for passage over other lines, and in checking baggage on it, this company acts only as agent, and it is not responsible beyond its own line'-- could not bind the plaintiff, unless the lines over which she was to pass were attached to and made a part of the contract, or unless she had knowledge of the lines over which she was to pass, when, we submit, under the law, the plaintiff was bound by such stipulation, whether the lines over which she was to pass were or were not mentioned in the ticket, and whether she did or did not know what such lines were to be.

7. Because, as it is respectfully submitted, the presiding judge erred in refusing to charge the jury in the language of the defendant's third request, as follows: 'The complaint does not allege willfulness or wantonness in the matter of furnishing a ticket to the plaintiff, and, therefore, there can be no recovery for any act of the defendant or any of its agents, in or about the furnishing of a proper ticket, or the failure to do so'--when, we submit, under the law, the defendant was entitled to have this instruction given to the jury, as the plaintiff had not alleged in her complaint against the defendant any negligence in failing to furnish a proper ticket, but, on the contrary, had alleged that the defendant furnished to the plaintiff a first-class round trip ticket, which carried her safely from Fountain Inn to Louisville, and when her right to recovery was based entirely upon the alleged willfulness of the Charleston &

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