Donkle v. Forster, 17764

• Decision Date: 10 April 1961
• Docket Number: No. 17764,17764
• Citation: 119 S.E.2d 231,238 S.C. 90
• Court: South Carolina Supreme Court
• Parties: Mrs. Mille DONKLE, Respondent, v. Johnnie Owens FORSTER, Appellant.

Page 231

119 S.E.2d 231

238 S.C. 90

Mrs. Mille DONKLE, Respondent, v. Johnnie Owens FORSTER, Appellant.

No. 17764.

Supreme Court of South Carolina.

April 10, 1961.

Haynsworth, Perry, Bryant, Marion & Johnstone, Greenville, for appellant.

J. G. Leatherwood, Rex L. Carter, Greenville, for respondent.

MOSS, Justice.

This action was instituted by Mrs. Millie Donkle, the respondent herein, to recover damages for personal injuries sustained by her on November 1, 1959, while she was riding as a passenger in an automobile owned and driven by her husband. The respondent alleges in her complaint that the automobile in which she was riding was traveling in a southerly direction on Augusta Street, in the City of Greenville, South Carolina, and that the said automobile was brought to a complete stop for the purpose of making a left turn from said Augusta Street into East Tallulah Drive, and while so stopped, an Oldsmobile station wagon driven by Johnnie Owns Forster, the appellant herein, ran into and against the rear of the automobile in which the respondent was riding. The respondent charged in her complaint, in several particulars, that the appellant was guilty of negligence, carelessness and recklessness in the operation of his automobile, and that such proximately caused her injuries. The appellant interposed, by way of Answer, a general denial of the material allegations of the complaint.

This case was tried before the Honorable J. Robert Martin, Jr., and a jury, in July 1960, and resulted in a verdict in favor of the appellant. The respondent made a motion for a new trial on the ground that the verdict of the jury was contrary to the evidence and that there was only one reasonable inference to be drawn therefrom, that the jury should have found a verdict for the respondent. The trial Judge set aside the verdict and granted a new trial, and from this order, the appellant has prosecuted this appeal. In the order granting a new trial, it was said:

'The motion was argued before me by counsel and after giving the matter careful and serious consideration, this Court is of the opinion that in view of the facts adduced at the trial, the jury should have rendered a verdict in favor of the plaintiff. To allow the jury's verdict to stand in this case would be a miscarriage of justice,'

The exception of the appellant raises the question of whether the trial Judge committed error in granting a new trial.

It is well settled, under the decisions of this Court, that an order granting or refusing a new trial when based solely on errors of law is subject to review by this Court, but when the order is based upon questions of fact, or upon both questions of law and fact, it is not appealable. Sellars v. Collins, et al., 212 S.C. 26, 46 S.E.2d 176, and the cases therein cited. Turner v. Carey, 223 S.C. 477, 76 S.E.2d 671; Nichols v. Craven, 224 S.C. 244, 78 S.E.2d 376; and Smith v. Traxler, 228 S.C. 418, 90 S.E.2d 482.

The case of Massey v. Adams, 3 S.C. 254, was an action of trespass to try title. A verdict was rendered by the jury in favor of the defendant, and, on motion of the plaintiffs, a new trial was granted. Upon appeal, this Court said:

'The only question proper for our consideration, is whether there was error of law in the order granting the new trial. If it was founded, either wholly or in part, on a conclusion from the fact contrary to that of the jury, then,...