Garrick v. Florida Cent. & P.R. Co.

• Decision Date: 25 October 1898
• Citation: 31 S.E. 334,53 S.C. 448
• Parties: GARRICK v. FLORIDA CENT. & P. R. CO.
• Court: South Carolina Supreme Court

31 S.E. 334

53 S.C. 448

GARRICK v. FLORIDA CENT. & P. R. CO.

Supreme Court of South Carolina

October 25, 1898

Appeal from common pleas circuit court of Orangeburg county; O. W Buchanan, Judge.

Action by Julia E. Garrick, as administratrix of the estate of Jacob Garrick, deceased, against the Florida Central & Peninsular Railroad Company. There was a judgment for plaintiff, and defendant appeals. Reversed.

Gary A. J., dissenting.

C. J C. Hutson, S. Dibble, and W. H. Lyles, for appellant.

Raysor & Summers and James F. Izlar, for respondent.

McIVER C.J.

The plaintiff, as administratrix of her deceased husband, brought this action to recover damages, from the defendant company for the killing of her said husband by the negligence of said defendant. It appears that the deceased was in the employ of the defendant company, working on the bridges and trestles of said railroad, under the direction of one Renfroe, who was charged with the duty of keeping said bridges and trestles in proper repair; that on Friday evening, the 3d September, 1897, the deceased, when they quit work for the day, started to go back up the road to see his wife, who was in a delicate situation, using a velocipede for the purpose, and going in a northerly direction towards Norway, a station on the road. Before reaching that point, he was struck by a material train, moving backward, in a southerly direction, and thrown from the track, sustaining serious injuries, from which he died on the following Monday. In the course of the testimony on behalf of the plaintiff, a witness (Brown) was asked if he knew how the deceased came from South Ediston, the place where he was working that evening, to which the reply was: "He started from there on foot. Mr. Renfroe told me so." To this defendant objected, and the objection being overruled, to which exception was taken, the witness proceeded to say: "Mr. Renfroe told me on Saturday morning that Garrick started from there on foot, and he called him back, and told him to take the wheels [meaning the velocipede]. Mr. Renfroe said he thought he was doing the poor boy a favor." Another witness on the part of the plaintiff was asked if he knew how Garrick came to use the velocipede that night, to which he replied: "I don't know positively. I had a conversation on that subject with Mr. Renfroe afterwards. (Objected to. Objection overruled. Ruling excepted to by the defense.) I heard Mr. Renfroe say that, the night that Mr. Garrick was hurt, Mr. Garrick started home on foot, and he called him back, and told him to go home on the velocipede, and Mr. Garrick came back, and started home on it." The jury returned a verdict in favor of the plaintiff for the sum of $1,995,--the whole amount claimed in the complaint; and, judgment having been entered thereon, defendant appeals upon the several exceptions set out in the record.

The first exception complains of error in allowing the testimony above stated to be received over the objection of defendant. It seems to us that these declarations of Renfroe, made after the event, were no part of the res gestæ, and were not made in the course of his agency, and were therefore inadmissible, under the case of Petrie v. Railway Co., 27 S.C. 63, 2 S.E. 837. But, while there was error in the ruling of the circuit judge as to the admissibility of the testimony above referred to and stated, yet such error was rendered entirely harmless, by reason of the fact that the testimony of J. Lee Nease and S. B. Sawyer, Jr., received without objection, was quite sufficient to prove the same fact which the declarations objected to tended to prove. This exception must therefore be overruled.

Exception 2 is in the following form: "Because his honor, the circuit judge, erred in making the qualifications in his charges upon the requests 1, 2, and 3 of the defendant's counsel, whereas he should have granted said requests without qualification." This exception is entirely too general to entitle it to any consideration on our part, under the well-settled rule, which has been so often applied as to supersede the necessity for any citation of authority. Indeed, it is difficult to conceive how an exception could have been made more general than this. We may add, however, that the circuit judge could not have charged either the first or second requests to charge without violation of the constitutional provision forbidding a charge on the facts. He could not instruct the jury that any given state of facts would constitute negligence, either contributory or otherwise, for that was a question for the jury to determine under all the facts and circumstances of the case. China v. City of Sumter (S. C.) 29 S.E. 206. As to the fourth request, that was distinctly charged, and all that the circuit judge did was simply to go on and explain the nature of the contributory negligence on the part of the plaintiff, which would relieve the defendant from liability; and in this there was no error.

The third exception is in these words: "Because his honor, the circuit judge, erred in his charge to the jury instating as follows: 'If there was gross carelessness or recklessness or willfulness, then you may give what is known as punitive or smart-money damages. So, it is for you to say what damages should be awarded to her, if you find she is entitled to recover."' This exception raises the main question in the case, and is the one to which the argument was principally directed. It is an entirely novel question,--in this state at least,--and its solution depends upon the proper construction of the statute, under which alone can such an action as this be maintained. Before proceeding, however, to consider this question, it will be necessary to dispose of two preliminary objections which have been raised by counsel for respondent: (1) That the exception is too general; (2) that the jury could not have considered the question of exemplary damages in making up their verdict.

As to the first objection, while there are cases which condemn the practice of framing exceptions by basing them upon mere extracts from the judge's charge, in which no distinct legal proposition is stated, yet this case does not come under such an objection. Here the circuit judge, in his charge, has stated a distinct and separate legal proposition, as applicable to this case; and, if there is error in such statement of the legal proposition, then such error is sufficiently pointed by the exception. The first objection is not tenable.

As to the second objection, we do not see how it is possible for this court to ascertain what elements of damages the jury considered in making up their verdict. All that we can possibly know is that the jury were explicitly instructed that "if there was gross carelessness or recklessness or willfulness," then that they might give exemplary damages; and, if the law does not allow such damages in a case like this, then there was error of law in the charge; and we have no right to conjecture or speculate as to what effect such erroneous instruction may have had upon the minds of the jury. But it is said in the argument here that "exemplary damages were not insisted upon, neither was any proof offered respecting such damages." We can only say that the "case" does not disclose the fact that exemplary damages were not insisted upon; and it is from that source alone that we are liberty to ascertain what occurred in the court below. But we do learn from the "case" that plaintiff offered evidence tending to show that the defendants, by their agents, were running a heavy material train, in the nighttime, backward, without lights, over a road on which it was reasonable to expect that some one of the employés of the company might be passing on the velocipede, which plaintiff's testimony tended to show was habitually used by the employés in passing from their work, just about the time the disaster occurred. If this was not testimony tending to show "gross carelessness," if not "recklessness," it is difficult to say what was its intention. The second objection is not tenable.

We come, then, to the consideration of the question presented by the third exception: Is a plaintiff in a case like this entitled to recover exemplary damages,--sometimes called vindictive or punitive damages,--or is he limited to the damages expressly provided for in the statute, to wit, such damages as the jury "may think proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought?" It is not, and cannot be, denied that, prior to the passage of the act of 1859 (12 St. at Large, p. 825) an action of this kind could not have been maintained at all, and no damages of any kind could have been recovered by any person. It is obvious, therefore, that the plaintiff in this case derives her right to bring this action solely from the provisions of the statute above referred to, and the extent and measure of her rights must be determined by a proper construction of those provisions. The title of that act is as follows: "An act to provide for compensation in damages to the families of persons killed by the fault of others." The first section of the act reads as follows: "That whenever, after the passing of this act, the death of a person shall be caused by the wrongful act, neglect, or default of another, and the act, neglect, or default is such as would, if death had not ensued,...