Dutton v. Atlantic Coast Line R. Co.

• Decision Date: 14 March 1916
• Docket Number: 9330.
• Parties: DUTTON v. ATLANTIC COAST LINE R. CO. ET AL.
• Court: South Carolina Supreme Court

88 S.E. 263

104 S.C. 16

DUTTON v. ATLANTIC COAST LINE R. CO. ET AL.

No. 9330.

Supreme Court of South Carolina

March 14, 1916

Appeal from Common Pleas Circuit Court of Sumter County; H. F. Rice Judge.

Action by Ella Dutton, as administratrix of the Estate of Lee Dutton, deceased, against the Atlantic Coast Line Railroad Company and others. Judgment for the plaintiff against the named defendant, and it appeals. Affirmed.

The following are the exceptions referred to in the opinion:

I. His honor erred, it is submitted, in admitting, over the objection of defendant appellant, testimony of plaintiff as to the financial condition of her intestate at the time of his death aside from the income derived from the application of his time and labor, because only the loss directly caused through the death of intestate could form a basis of recovery here, and the evidence, adduced over defendant's objection, could tend only to elicit sympathy on the part of the jury to defendant's prejudice; the questions objections, ruling, and evidence being as follows: "Q. Had he any other property at the time of his death? Mr Clifton: I object. Q. Don't answer until I get through and the judge rules. Did he have any other property at the time of his death other than the salary that he was earning to support his family? Mr. Clifton: Any other property is not relevant. They have got them charged with procuring the young man's death through a negligent act, and whether plaintiff's intestate was rich or poor is immaterial. Court: Go on. The objection is overruled. Q. Did he have any other property at the time of his death? Did he have any property at all at the time of his death? A. No. sir."

II. His honor erred, it is submitted, in admitting over the objection of defendant appellant, testimony of plaintiff as to what, if any, insurance was held by her intestate at the time of his death, because such evidence was not material to any issue in the cause and was sought to be elicited, and was elicited, for the sole purpose, or at least it could only have had the effect, of exciting sympathy in the minds of the jury to the prejudice of defendant; the questions, objections, ruling and evidence being as follows: "Q. How much insurance did he leave, if any? Mr. Clifton: All these questions objected to. * * * Court: Upon the same ground? Mr. Clifton: Well, we object, and upon the additional ground that the statute provides for an action for those dependent upon him, and it is not essential or material to establish his worldly possessions, or the absence or presence of them. Court: Now, Mr. Jennings. Q. Yes; I understood the ruling. Court: Yes, sir. Q. How much insurance did he leave, if any, at the time of his death? A. $184. Q. You had to bury him, did you not? A. Yes, sir. Q. You paid the burial expenses? A. I did. Mr. Clifton: We object to that on the ground of irrelevancy. Q. In order to show that it took practically all the insurance to lay him away after they had killed him. Mr. Clifton: We object to counsel stating the evidence. Court: Yes, sir; the objection overruled. Q. Of the $184 insurance he left, which he left, how much of that did it take to put him away, as near as you can remember? A. As well as I remember, it was $94."

III. His honor erred, it is submitted, in admitting, over the objection of defendant appellant, evidence of plaintiff as to what property, if any, she owned at the time of the death of her intestate, because only the loss directly caused by the death of her intestate could form a basis of recovery, and the evidence, admitted over defendant's objection, could tend only to excite sympathy on the part of the jury to defendant's prejudice; the questions, objections, ruling and evidence being as follows: "Q. Did you have any property of your own at the time of his death? A. No, sir. Mr. Clifton: We object; that is immaterial. Court: Go on, I will overrule the objection. Q. Have you acquired any since his death? A. No, sir. Q. Did these two children have any at the time of his death? Did they have any property of their own? A. No, sir. Q. Have they any now? A. No, sir."

IV. His honor erred, it is submitted, in admitting over the objection of defendant appellant evidence of plaintiff as to the visit or visits paid her, and the conference or conferences had with her, after the death of her intestate and with reference to such death, such evidence being incompetent and inadmissible because: (1) No act or declaration on the part of any so-called agent could bind the defendant unless it was shown (a) to have been previously authorized by it, or (b) to have been subsequently ratified, and there was no competent evidence of either authorization or ratification; (2) because the evidence was entirely irrelevant to any issue in the case, and therefore was incompetent, except as tending to show some attempt, effort, offer, intention, or desire to effect a compromise of the cause of action, if any, and as such it was incompetent and inadmissible; and the admission of such evidence could tend only to influence and prejudice the minds of the jury and to indicate to them some degree of admission of liability on the part of and by the defendant.

V. His honor erred, it is submitted, in admitting, over the objection of defendant appellant, testimony of the witness George P. McKagen as to the failure to use blue signals in accordance with the rules in evidence, there being no sufficient showing of frequent and repeated violation of the rules with the knowledge and acquiescence of the defendant such as would show waiver of the rules.

XIII. His honor erred, it is submitted, in overruling the motion for direction of verdict in favor of defendant appellant made at the close of all the evidence, whereas he should have granted the motion and directed the jury to return a verdict in favor of this defendant upon the grounds and for the reasons urged in support thereof as follows: (1) There is no evidence of willfulness showing a right of recovery as given by the

Employers' Liability Act of Congress. (2) No right of recovery for willfulness is given by the Employers' Liability Act of Congress, and evidence of willfulness, if any, therefore, is irrelevant. (3) There is no evidence of negligence proximately causing intestate's death. (4) The proximate cause of accident resulting in death of plaintiff's intestate was his own negligence. (5) There is no sufficient evidence of negligence proximately causing the death of plaintiff's intestate.

XIV. His honor erred, it is submitted, in holding that the scintilla doctrine applies in an action brought under the Employers' Liability Act of Congress, and in refusing to direct verdict in favor of this defendant because in his consideration of the case there was a scintilla of evidence, making it necessary to submit the case to the jury, whereas there was no sufficient evidence to support a verdict for plaintiff, and his honor should have so directed the jury.

XV. His honor erred, it is submitted, in permitting the attorneys for plaintiff to argue to the jury inferences detrimental and prejudicial to this defendant, over defendant's objection, from the failure of defendant to call M. H. Hodge, one of its codefendants, as a witness in its behalf, it appearing that Hodge was present in the courtroom during the trial equally accessible to either plaintiff or this defendant.

XVI. His honor erred, it is submitted, in permitting counsel for plaintiff to argue to the jury inferences detrimental to this defendant from fact, appearing from evidence admitted over defendant's objection, that persons representing, or claiming to represent, this defendant visited plaintiff, and had a conference or conferences with her, after the death of her intestate and with reference to such death; such inference sought to be suggested to the minds of the jury being for the purpose only of showing some attempt, effort, offer, intention, or desire on the part of defendant to effect a compromise of the cause of action, if any.

XVII. His honor erred, it is submitted, in permitting counsel for plaintiff, after the ruling of the court, to comment to the jury upon the evidence, admitted over defendant's objection, of visits paid to plaintiff and conferences had with her by persons representing, or claiming to represent, the defendant appellant, and it was error sufficient to vitiate the verdict subsequently rendered for counsel to make such comments, suggesting and arguing by inference to the jury that such visits and conferences were had for the purpose of bringing about a compromise of the cause of action, if any, such comments being made after the ruling of the court, and deliberately in defiance of such ruling, the particular occurrence referred to herein appearing in the record as follows: "Mr. Clifton: I object to inferences being argued except as to his being there. Court: Or of any compromise or settlement. Mr. Jennings: I will argue this: If the railroad's witnesses had been so hard-hearted as to stop and get statements from Hodge while the helpless, mangled, torn-up and still-breathing body was under the railroad train, then they would stop in instances of that kind to get statements for the railroad company. Then I ask you why did they become so sympathetic later and have this district attorney to go down there and have a conference with her in her poor little hut down side of the railroad track? Did he go there to have prayers with her, and console with her in her sorrow and distress? Mr. Clifton: All this is under our objection."

XVIII. His honor erred, it is submitted, in charging the jury as follows: "If you find that, as alleged in the complaint, that was done for months; that the rule was not enforced upon the yard; that it was known to the

...