Daniels v. Timmons
| Decision Date | 21 April 1950 |
| Docket Number | 16346. |
| Citation | 59 S.E.2d 149,216 S.C. 539 |
| Parties | DANIELS v. TIMMONS. |
| Court | South Carolina Supreme Court |
Harold C. Seigler, Columbia, F. Ehrlich Thomson Columbia, for appellant.
John Gregg McMaster, Columbia, for respondent.
This suit is in behalf of James Carroll Daniels who was a minor fifteen months of age at the time of his injury. The complaint alleges that the child and his parents were tenants of the defendant, and occupied an apartment on the second floor of the apartment house owned and leased by the defendant. In said building, there are twenty-five or more apartments twelve of which are on the second floor and four on the third floor. There was a second floor porch at the end of the hall on the front of the building, which was under the control and possession of the defendant, and this porch was for the common use of several tenants. This porch had a banister railing around it and several wickets or uprights were missing on the front part, so that there was an opening which was left unguarded and dangerous.
The complaint alleges that on 30th October, 1948, at about 4:00 P. M., this child proceeded from his parents' rooms, along the hall and walked or ran onto this porch and fell through the opening of the banister wickets to the cement walk below thereby sustaining injuries to his person for which actual and punitive damages were sought.
The gravamen of the complaint is the alleged negligence and wilfulness of the defendant in the following particulars, to-wit: (1) 'in maintaining and allowing to exist the porch in such a dangerous condition as to be a nuisance;' (2) 'in maintaining a nuisance, a dangerous porch on the premises, a part of which was leased to the plaintiff's parents;' and (3) 'in failing to inspect the porch and notify all users of its dangerous condition;' (4) 'in failing to maintain the porch in a safe and usable condition after being requested to do so and after receiving notice of its dangerous condition;' (5) 'and in failing to repair the same which was for the common use of several tenants;' (6) 'and that the defendant knew or should have known of this dangerous condition.'
The answer of the defendant admits that she is engaged in the business of renting apartments in the City of Columbia, and that she rented a certain apartment located in the city at 2920 Divine Street to Robert L. Daniels and his wife. The answer denies that an accident actually took place as alleged and that if it did occur that the defendant was in nowise responsible for the same.
For a second defense the answer alleges that if the plaintiff was injured as the result of any accident as alleged in the complaint, such injury and damage, if any, were caused directly and proximately by the sole negligence and wilfulness of the plaintiff's mother and father, and/or whomsoever his mother and father placed him in charge of, in the following particulars, to-wit: (1) 'in failing to properly look after and attend this child who was then a fifteen months old baby;' (2) 'in allowing the baby to be placed on the floor so that he could crawl or toddle out to a place where he could injure himself;' (3) 'and failing to exercise such attention and care as a person of ordinary care and prudence would do under the circumstances;' and (4) 'in allowing the baby to crawl or wander away from the supervision of the person in charge of the child in utter disregard of any consideration for the child's own safety and welfare.'
The third defense of the answer alleges the contributory negligence and wilfulness of the parents of the child and/or of the person in charge of the child in the particulars set forth in the second defense, which are unnecessary to repeat now. During the progress of the trial, the defense of contributory negligence was struck out by the Court. It is admitted by counsel that this was properly done. No issue is now before this Court as to contributory negligence of the parents or of the custodian of the child. In passing we wish to remark that this defense was most correctly struck out or abandoned. In a very recent interesting case in an opinion by Mr. Justice Oxner this Court had occasion to retierate the law in regard to this supposed defense. Quoting from the cases of Frank F. Limehouse v. Southern Railway Co. et al. and Maybry Limehouse v. Southern Railway Co., S.C., 58 S.E.2d 685, 687, which were tried together and opinions filed March 14th, 1950, reported in Westbrook as of 18th March, 1950, we said: 'As to the cause of action at common law, the contributory negligence or gross negligence of the mother would be no defense. Of course, the children, both of whom were under seven years of age, were incapable of personal negligence. It is well settled that in an action by a child for personal injuries, the contributory negligence of a parent or custodian is no defense. In discussing the question in Watson, Administrator v. Southern Railway, 66 S.C. 47, 44 S.E. 375, 376, the Court said: 'To impute contributory negligence to such a child would be to make him a tort feasor by imputation, when he could not be such in fact. It would be visiting the innocent with the faults of the guilty. It would permit the child's protector to be authorized to destroy it. It would place the personal rights of the child at the mercy of any one by whose fault it is injured, provided the guilty one happens to have the cooperation of the child's custodian in the work of injury. Such a doctrine is an anomaly in the law."
At the close of plaintiff's testimony, the trial Judge expressed his doubt as to anything in the evidence to establish wilfulness and at the close of all of the testimony ruled out all elements of punitive damages. At appropriate times, the defendant moved for a nonsuit and for a directed verdict, as to the claim for actual damages. These motions were overruled. The jury rendered a verdict in a very moderate amount for the plaintiff, who by the evidence providentially was only slightly injured, and miraculously escaped any broken bones or permanent damage. The defendant thereupon moved for a judgment non obstante veredicto and failing in that, for a new trial. These motions were overruled.
In due time the defendant served notice of intention to appeal from the judgment below and the case now comes before the Court upon exceptions. The appeal was ably argued by counsel for both parties and appellant's counsel vigorously contend that the trial Judge should have granted a nonsuit or ordered a directed verdict in favor of the defendant. This contention arises under the exceptions which are presented as questions one and two in the printed brief of appellant, and will be so considered without repeating seriatim those exceptions which relate to such questions. The Court is thus called upon to consider the facts in the case under the testimony and it is necessary to review the evidence. Ordinarily the facts are for the jury to decide and an argument on the facts is more appropriately left to the wise decision of that tribunal under the Constitution which does not permit the trial Court to discuss the testimony in the charge to the jury. Errors of law are to be corrected on appeal. Issues of fact are to be settled by the jury. If an argument on the facts fails to convince a jury, there is small chance of a reversal on appeal, except in a case where there is absolutely no competent evidence to be submitted to the jury on a particular issue of fact. A party litigant should be satisfied with the finding of a jury in a fair trial in a meritorious case, as far as the disputed facts are involved. We have no better or higher method under the law to settle controversies between litigants arising out of disputes in regard to business matters, and the rights and remedies of the parties, on the law side of the Court. A fair trial before an impartial jury is the acme of a case.
The issue first argued is that there was no competent relative testimony to show that the injury sustained by the plaintiff was proximately caused by the negligence of the defendant. Appellant's counsel recognize that the rule of res ipsa loquitur does not obtain in this State; also it is contended by appellant that the plaintiff relies entirely on circumstantial evidence to establish the fact that the child actually suffered a fall from an alleged second floor porch.
We deem it therefore unnecessary to discuss the legal distinction between this case and any other case where the facts are not similar. The most recent philosophic discussion of the evidentiary force and effect of the circumstances relied upon as contradistinguished from mere res ipsa loquitur is announced in the case of Eickhoff v Beard-Laney, Inc., et al., 199 S.C. 500, 20 S.E.2d 153, 141 A.L.R. 1010. As is said in that case, in civil actions every other reasonable conclusion (as required in criminal cases) need not be excluded; proof of circumstances warranting a given inference is sufficient in such cases. The facts and circumstances shown should be reckoned with in the light of ordinary experience and such conclusions deduced therefrom as common sense dictates. For another interesting case where may be found an analytical array of circumstances relied upon see that of Owens v. Ocean Forest etc., 196 S.C. 97, 12 S.E.2d 839. A brief resume of the facts relied upon and established by the evidence is necessary; and the evidence must be considered in the view most favorable to the plaintiff in considering the motion for a nonsuit; also all of the evidence on both sides is now before the Court and must be reckoned with to ascertain if the refusal to direct a verdict or grant a nonsuit should be upheld. In fact the witnesses for the defense did not differ...
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