Caines v. Marion Coca-Cola Bottling Co.

• Decision Date: 10 November 1941
• Docket Number: 15326.
• Parties: CAINES v. MARION COCA-COLA BOTTLING CO.
• Court: South Carolina Supreme Court

17 S.E.2d 315

198 S.C. 204

CAINES v. MARION COCA-COLA BOTTLING CO.

No. 15326.

Supreme Court of South Carolina

November 10, 1941

Wright & Burroughs and E. S. C. Baker, all of Conway, for appellant.

J K. Dorman, Lonnie D. Causey, and Epps & Epps, all of Conway, for respondent.

A. L GASTON, Acting Associate Justice.

The plaintiff recovered a verdict on circuit before Hon. A. L Hardee, Special Judge, and a jury on May 1, 1941. This was the third trial on circuit and is now the second appeal to this court. The first appeal is reported in 196 S.C. 502, 14 S. E.2d 10.

The suit is predicated upon the negligence of the defendant under the Pure Food Statute, ^[1] in selling a bottle of Coca-Cola with a cockroach negligently contained therein. The defendant company further set up contributory negligence on the part of the plaintiff in addition to a general denial.

The appellant's attorneys with characteristic candor have abandoned one set of exceptions based upon the alleged error in the admission of certain testimony as to a statement by plaintiff shortly after he drank the beverage.

The principal ground of the appeal arises out of the exclusion from evidence of a deposition offered by the defendant on the trial. It appears by the record that the appellant offered in evidence an envelope purporting to contain the depositions of P. W. Fattig and J. B. Johnson. The plaintiff objected to the opening of this deposition on the ground that the deposition is not under seal of the party who took it; under no seal at all. Special Judge Hardee refused to permit the envelope to be opened and ruled that the depositions were not admissible

"upon the ground that it appears that there is no evidence upon the envelope that it was sealed by the notary public before being mailed and was retained in his possession until sealed and deposited in the mails to be sent to the clerk of court."

The original envelope still unopened is a part of the record on this appeal and is before the court for inspection and examination as an exhibit in the case.

The appellant states the question thus: "The sole question for decision by the Supreme Court is whether or not purely technical considerations shall result in exclusion from evidence of testimony which would throw light upon the issues involved in the trial. To put the matter otherwise, the question is the ancient one of how far form should be permitted to go in overriding substance."

The statute which is involved in a consideration of this question appears as Section 708 of the Code of 1932: "Every deposition taken under the provisions of the two preceding sections shall be retained by the officer taking it until he delivers it with his own hand into the court for which it is taken, or shall, together with a certificate of the reasons as aforesaid of taking it and of the notice, if any, given to the adverse party, be by such officer sealed up and directed to such court, and forwarded to such court either by mail or express, and remain under his seal until opened in court."

It is admitted that no seal of the notary public was used; and no scroll nor the letters "L. S." are upon the envelope. The notary's signature is written on the front side of the envelope after the certificate as to its contents, but the signature is omitted on the back side of the envelope. The unsigned certificate appears on the back and neither certificate is in the apparent handwriting of the notary. The envelope and contents came by registered mail to the Clerk of Court at Conway, S. C. The Atlanta, Georgia, registered mail insignia is imprinted by rubber stamp in five places across the glued up flaps on the back side of the envelope. There is an entire absence of any signature, scroll, or other evidence on the envelope on either side, by the notary public to show that he sealed the envelope, or that he adopted something or anything instead thereof.

The rule is laid down in the case of Travers v. Jennings et al., 39 S.C. 410, 17 S.E. 849, 850, by this court as follows: "This, it seems to us, ought to be the crucial test in such matters, namely, the adoption, by the party who is required to seal, of something in its stead. *** If he had used sealing wax, and had stamped thereon his notarial seal, or had used sealing wax, and had written his name across the same, or if he had written his name across the flap of the envelope after he had caused it to adhere to the body of the envelope, it seems to us that any one of these methods would have answered the demands of the statute in this respect."

It may be a hardship on the defendant to have to follow the statute and the rule of court, construing and applying the statute, but it would be a greater hardship upon litigants generally were the court to declare that there is no fixed rule to be followed. The court has held that the rule is flexible enough not to require an official or formal seal, but it does require that the notary by some act on his part evince to the court that the package sent to the court is his work. (Travers case above cited), in sealing and mailing it.

All of the cases in this state hold that some safeguard is required and must be complied with by the notary to show that he sealed up and mailed, or sent by express, the package containing the deposition to the court and that it must remain under his seal until opened in court. This is a wise and salutary requirement of the statute and is not a mere technicality. If one formality under the statute can be dispensed with, then any or all of them can be so annulled. The statute allows the deposition to be retained by the officer taking it until he delivers it with his own hand into court. It would no doubt be just as safe to send it by the hand of some other person of recognized integrity, but the law does not permit this substitute method to be made. The alternate method fixed by the statute allows the deposition, together with a certificate of the reasons for taking it, and of the notice, if any, given to the adverse party to be by such officer sealed up and directed to the court, and forwarded to the court either by mail or express and remain under his seal until opened in court. These requirements are rather few and plain, so that "he who runs can read" and understand them, to borrow a biblical expression.

The Circuit Judge based his ruling strictly upon the decision of this court in the Travers v. Jennings, case, supra. That case expressly decides the issue now raised and a new trial was ordered by this court reversing the Circuit Court on the sole ground that the envelope containing the deposition was not under any seal of the notary and this court held that the deposition was improperly received in evidence. The facts in the Travers case are almost identical with the facts in the present case and the differences, if any, are not material. The reasoning of this court in the Travers case need not be repeated here now, but it is inescapable that all points raised now are disposed of in the earlier decision. See pages 412 and 413 of 39 S. C., 17 S.E. 849.

The later and last case of this court on this requirement of the statute is McClamroch Marble & Tile Company v. Bristow, 94 S.C. 252, 77 S.E. 923, 924.

It will be observed that in the Marble Company case, supra, the word "(Seal)" in brackets was written across the flap of the envelope on the reverse side of the envelope and that "examination of the envelope makes evident the intention of the notary to comply with the statute by placing the deposition under his seal, by making and adopting the word 'seal' in brackets as his official seal." Apparently, therefore, the notary made the symbol or word "Seal" as his act to evince his compliance with the statute. Some act of the notary is required under the statute to seal the envelope; any character or symbol shown either by the paper itself or by parol evidence to be intended as a seal in compliance with the law is sufficient; it is not material that he did not use a wafer or other more formal method of making his seal. But he, that is the notary, must seal the envelope and he must adopt some method of making his seal. McClamroch Marble Company v. Bristow, 94 S.C. 252, 77 S.E. 923, 924, and cases cited.

In the case of Riser v. Southern Railway Company, 67 S.C. 419, 46 S.E. 47, the notary public signed the typewritten certificate upon the back of the envelope. The signature of the notary public is in ink and is below the typewriting, but not across the flap of the envelope. The certificate shows that it was retained by him until it was placed in the post office, and that he personally placed it in the post office. All of this was upon the back side, or sealed up side, of the envelope. This court held the foregoing to be a substantial compliance with the requirements of the statute. 67 S.C. 419, 46 S.E. 47, above cited.

In the case of Hagins v. Aetna Life Insurance Company, 72 S.C. 216, 51 S.E. 683, this court held that the deposition should have been rejected under the authority of the Travers v. Jennings case which has not been overruled. The opinion of the court was written by Mr. Justice Woods in the Hagins case, and also later in the case of McClamroch Marble Company v. Bristow, supra, and we see no reason now to hold that there is any conflict of authority in this state on this matter, and no reason to feel that any point raised in the present case has been overlooked or misunderstood. Neither brief contains a reference to the two cases above quoted in which the opinions were written by Mr. Justice Woods, but we assume that able and alert couns...