Gamble v. Stevenson, No. 23424

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtCHANDLER; C. TOLBERT GOOLSBY, Jr.
Citation305 S.C. 104,406 S.E.2d 350
Decision Date21 January 1991
Docket NumberNo. 23424
PartiesCellisa E. GAMBLE, Plaintiff, v. Kevin D. STEVENSON, Thomas Brothers Construction Company and Southern Bell Telephone and Telegraph Company, Defendants, of which Southern Bell Telephone and Telegraph Company is Appellant, and Kevin D. Stevenson is Respondent. Appeal of SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY. . Heard

Page 350

406 S.E.2d 350
305 S.C. 104
Cellisa E. GAMBLE, Plaintiff,
v.
Kevin D. STEVENSON, Thomas Brothers Construction Company and
Southern Bell Telephone and Telegraph Company, Defendants,
of which Southern Bell Telephone and Telegraph Company is Appellant,
and
Kevin D. Stevenson is Respondent.
Appeal of SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY.
No. 23424.
Supreme Court of South Carolina.
Heard Jan. 21, 1991.
Decided June 24, 1991.

Page 351

[305 S.C. 105] Stephen G. Morrison and George K. Lyall, both of Nelson, Mullins, Riley & Scarborough, Greenville, Lisa D. Catt, of Nelson, Mullins, Riley & Scarborough, Columbia, and Fred A. Walters and Caroline N. Watson, both of Southern Bell Tel. and Tel. Co., Columbia, for appellant.

Wallace K. Lightsey, of Wyche, Burgess, Freeman & Parham, P.A., Greenville, for respondent.

[305 S.C. 106] CHANDLER, Justice:

Southern Bell appeals a jury verdict in favor of Respondent Kevin Stevenson (Stevenson) for actual and punitive damages. 1

We affirm.

FACTS

On January 16, 1987, Stevenson failed to stop at an intersection at which the "stop sign" had been removed; his car collided with one driven by Cellisa Gamble (Gamble) who had the right of way. The sign was found lying in an adjacent ditch.

The stop sign removal was occasioned by repairs to Southern Bell's telephone cable line. Eighteen days prior to the accident, Thomas Brothers Construction Co. (Thomas), a subcontractor of Southern Bell, removed the sign in the course of digging a pit to expose the cable.

Zane Hendrix (Hendrix), Southern Bell's cable repairman, personally instructed Thomas where to dig the pit; he observed the sign removal, and advised Thomas how it should be replaced. Phillip Church, pit foreman for Thomas, testified that he replaced the sign as instructed by Hendrix.

The testimony is conflicting as to whether the sign was properly replaced by Thomas, and whether Southern Bell performed repairs on the cable prior to the accident. However, a neighborhood resident testified that the sign was replaced, then down again, where it remained until the accident.

Page 352

He testified, further, that he observed men working on telephone wires within the pit after it was dug by Thomas. While he was unable to identify by whom the workmen were employed, the records of Thomas indicated that its employees worked on the pit only on December 30, 1986, when it was dug, and January 28, 1987, when it was closed.

Gamble sued Stevenson, Thomas and Southern Bell; Stevenson cross-complained against Thomas and Southern Bell. Verdicts were returned for Gamble and Stevenson. The [305 S.C. 107] jury awarded Stevenson $5,000 actual and $87,500 punitive damages against Southern Bell. 2

ISSUES

1. Should Special Interrogatories have been submitted to the jury?

2. Should the issue of agency have been submitted to the jury?

3. Was a vandalism statute properly included in the jury instruction?

4. Did Stevenson lack standing to cross-complain against Southern Bell?

5. Should punitive damages have been submitted to the jury?

DISCUSSION

I. SPECIAL INTERROGATORIES

Southern Bell requested that six Special Interrogatories be submitted to the jury. The Court reserved its ruling, stating that it "may consider asking the jury after the verdict...."

Southern Bell failed to renew the request after the verdict and, therefore, the issue is not preserved. See Terrell v. James, 250 S.C. 506, 159 S.E.2d 240 (1968).

In any event, the determination as to whether special verdict forms should be submitted to the jury is within the sound discretion of the trial judge. Smoak v. Liebherr-America, Inc., 281 S.C. 420, 315 S.E.2d 116 (1984).

We find no abuse of discretion.

II. AGENCY

Southern Bell contends the issue of agency should not have been submitted to the jury, on the ground that Thomas, as a matter of law, was an independent contractor. We disagree.

The primary consideration in determining the existence of a master-servant relationship is whether the purported master has the right to control the servant in the performance of his work, and the manner in which it is done. Felts v. Richland [305 S.C. 108] County, --- S.C. ----, 400 S.E.2d 781 (1991) [citing Standard Oil Company v. Anderson, 212 U.S. 215, 29 S.Ct. 252, 53 L.Ed. 480 (1909) ]. "The terms of a contractual agreement are not conclusive in determining the association between two parties where there is evidence outside the contract establishing an agency relationship." Beasley v. Kerr-McGee Chemical Corp., 273 S.C. 523, 526, 257 S.E.2d 726, 727 (1979). If there are any facts tending to prove an agency relationship, the question is one for the jury. Reid v. Kelly, 274 S.C. 171, 262 S.E.2d 24 (1980).

The contract with Thomas was prepared by Southern Bell. While it states that Thomas is an independent contractor, Southern Bell's own employee, Hendrix, instructed Thomas where to dig the pit and how to replace the sign. Clearly, this rendered agency a jury issue.

III. VANDALISM STATUTE

Southern Bell alleges the trial court erroneously charged the language of S.C.Code Ann. § 56-5-1030 (1976), a general vandalism statute. It contends that § 58-9-2020, relating to construction, maintenance and operation of telephone lines, is the exclusive statute applicable. We disagree.

S.C.Code § 56-5-1030 reads, in part:

"No person shall willfully without lawful authority attempt to or in fact alter, deface, injure, knock down or remove any official traffic control device ..." (Emphasis supplied).

S.C.Code § 58-9-2020, reads, in part:

Page 353

"Any telegraph or telephone company ... may construct, maintain, and operate its line ... under, over, along and upon any of the highways or public roads of the State ... provided, that such line is constructed so as not to endanger the safety of persons or to interfere with the use of such highways or public roads ..." (Emphasis in original).

Reliance by Southern Bell upon the recognized principle that, where two statutes appear to conflict the specific statute governs, is misplaced here.

The statutes are not in conflict.

[305 S.C. 109] Section 56-5-1030 contains terms and provisions not found in § 58-9-2020. Moreover, nothing in § 58-9-2020 specifically authorizes Southern Bell to remove stop signs. Had the General Assembly intended that telephone utilities be exempt from § 56-5-1030, it could have included such a provision.

We decline to address Southern Bell's contention that evidence of its failure to obtain a permit was improperly admitted. The ground now asserted is not supported by the objection raised at trial. See Mickle v....

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125 practice notes
  • Garrison v. Target Corp., Appellate Case No. 2017-000267
    • United States
    • Court of Appeals of South Carolina
    • January 15, 2020
    ...in our state have had the mandatory duty to conduct post-trial review of a punitive damages award to ensure it comports with due process. 305 S.C. 104, 111–12, 406 S.E.2d 350, 354 (1991). This duty does not depend on a party's pleading or request. Id. To hold the statutory cap on punitive d......
  • Perrine v. E.I. Du Pont De Nemours And Co., No. 34333
    • United States
    • Supreme Court of West Virginia
    • March 26, 2010
    ...Bureau Mut. Ins. Co. v. Love Chevrolet, Inc., 324 S.C. 149, 153-54, 478 S.E.2d 57, 59 (1996) (“[I]t is clear that Gamble [ v. Stevenson, 305 S.C. 104, 406 S.E.2d 350 (1991),] did not alter the discretion historically afforded to trial courts of this state to reduce, or add to, verdicts whic......
  • Transportation Ins. Co. v. Moriel, No. D-1507
    • United States
    • Supreme Court of Texas
    • June 8, 1994
    ...courts have recently modified their punitive damage procedures without holding those procedures unconstitutional. See Gamble v. Stevenson, 305 S.C. 104, 406 S.E.2d 350 (1991); Hodges v. S.C. Toof & Co., 833 S.W.2d 896 (Tenn.1992); Crookston v. Fire Ins. Exch., 817 P.2d 789 (Utah A. Bifurcat......
  • Robertson Oil Co., Inc. v. Phillips Petroleum Co., No. 91-3717
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • December 28, 1993
    ...propriety of the instruction. 11 Citing Wagner v. McDaniels, 9 Ohio St.3d 184, 459 N.E.2d 561, 564 (1984); Gamble v. Stevenson, 305 S.C. 104, 406 S.E.2d 350, 354, n. 3 (1991); Lunsford v. Morris, 746 S.W.2d 471, 473 (Tex.1988); Viking Ins. Co. v. Jester, 310 Ark. 317, 836 S.W.2d 371, 379 12......
  • Request a trial to view additional results
125 cases
  • Garrison v. Target Corp., Appellate Case No. 2017-000267
    • United States
    • Court of Appeals of South Carolina
    • January 15, 2020
    ...in our state have had the mandatory duty to conduct post-trial review of a punitive damages award to ensure it comports with due process. 305 S.C. 104, 111–12, 406 S.E.2d 350, 354 (1991). This duty does not depend on a party's pleading or request. Id. To hold the statutory cap on punitive d......
  • Perrine v. E.I. Du Pont De Nemours And Co., No. 34333
    • United States
    • Supreme Court of West Virginia
    • March 26, 2010
    ...Bureau Mut. Ins. Co. v. Love Chevrolet, Inc., 324 S.C. 149, 153-54, 478 S.E.2d 57, 59 (1996) (“[I]t is clear that Gamble [ v. Stevenson, 305 S.C. 104, 406 S.E.2d 350 (1991),] did not alter the discretion historically afforded to trial courts of this state to reduce, or add to, verdicts whic......
  • Transportation Ins. Co. v. Moriel, No. D-1507
    • United States
    • Supreme Court of Texas
    • June 8, 1994
    ...courts have recently modified their punitive damage procedures without holding those procedures unconstitutional. See Gamble v. Stevenson, 305 S.C. 104, 406 S.E.2d 350 (1991); Hodges v. S.C. Toof & Co., 833 S.W.2d 896 (Tenn.1992); Crookston v. Fire Ins. Exch., 817 P.2d 789 (Utah A. Bifurcat......
  • Robertson Oil Co., Inc. v. Phillips Petroleum Co., No. 91-3717
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • December 28, 1993
    ...propriety of the instruction. 11 Citing Wagner v. McDaniels, 9 Ohio St.3d 184, 459 N.E.2d 561, 564 (1984); Gamble v. Stevenson, 305 S.C. 104, 406 S.E.2d 350, 354, n. 3 (1991); Lunsford v. Morris, 746 S.W.2d 471, 473 (Tex.1988); Viking Ins. Co. v. Jester, 310 Ark. 317, 836 S.W.2d 371, 379 12......
  • Request a trial to view additional results

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