Gomillion v. Forsythe

• Decision Date: 16 November 1950
• Docket Number: No. 16431,16431
• Citation: 218 S.C. 211,53 A.L.R.2d 169,62 S.E.2d 297
• Parties: , 53 A.L.R.2d 169 GOMILLION v. FORSYTHE et al.
• Court: South Carolina Supreme Court

Page 297

62 S.E.2d 297

218 S.C. 211, 53 A.L.R.2d 169

GOMILLION v. FORSYTHE et al.

No. 16431.

Supreme Court of South Carolina.

Nov. 16, 1950.

Wise, Whaley & McCutchen, Columbia, for appellant.

C. T. Graydon and A. T. Graydon, Columbia, for respondents.

LIDE, Acting Associate Justice.

Willie Gomillion, a colored boy about 14 years of age, was killed on Monday, June 10, 1946, by reason of a fall from a Columbia Dairies milk truck. He did not die instantly, and was promptly taken to a hospital. However, he died before arrival there. At the time of the occurrence, which will for convenience be designated as an 'accident' (without attempting to define that term), the decedent was riding in a milk truck driven by one J. L. Bell, who operated the same in connection with the sale and delivery of milk, a product in which the respondents dealt, and they will frequently be referred to as the Columbia Dairies, that being their firm name. The truck was owned by them and inscribed upon it was their firm name, as follows: 'Columbia Dairies, Permit 31, Phone 3171'. Plaintiff's intestate was a helper of Mr. Bell in the handling and delivery of milk; and at the time of the accident the truck was returning from a delivery trip on the designated route travelled by Mr. Bell.

The plaintiff, the mother of Willie Gomillion, deceased, was duly appointed administratrix of his estate, and this action was instituted by her on August 29, 1946, to recover damages for his alleged wrongful death, under Lord Campbell's Act, embodied in Sections 411 and 412, Code 1942; the plaintiff as the mother of the decedent being the sole beneficiary. The complaint alleges that by reason of negligence and wilfulness of the driver and the improper equipment of the motor truck, damages were sustained in the sum of $10,000. There are twelve specifications of negligence and wilfulness, seven of which are directed to the conduct of Mr. Bell as the driver of the truck, and five of which relate to certain alleged defects in the equipment of the truck, as constituting a violation of the defendants' duty to provide a safe place to work for their servants, one of them being the plaintiff's intestate.

The answer of the defendants denies all allegations charging negligence or wilfulness on their part, and sets up by way of a second defense that the plaintiff executed a release discharging the defendants from any and all damages by reason of the death of the said Willie Gomillion, and that the consideration of the release was substantial, valuable and sufficient. A reply was duly filed by the plaintiff denying the allegations of the answer with reference to the release, but alleging that the plaintiff did sign some paper or instrument on or about June 10, 1946, and if this is the alleged release set up in the second defense of the answer, 'then the same was obtained by fraud misrepresentation, concealment coercion and duress and was signed at a time when plaintiff was unable to understand or know what she was doing'.

The reply also alleges that on August 29, 1946, before the summons or complaint was served in this action, she tendered, through her agent, the sum of $385 to the defendants, which tender was refused, this being the cost of the funeral expenses of Willie Gomillion, deceased, the same having been paid by the defendants; and the plaintiff alleged on information and belief that this was the total consideration of the purported release obtained by the defendants from the plaintiff.

The case came on to be tried in the Court of Common Pleas for Richland County before Hon. G. Duncan Bellinger, Presiding Judge, and a jury, on May 6, 1948, and the testimony was taken in behalf of the respective parties amounting to a considerable volume. At the close of all the testimony the defendants moved for a directed verdict in their favor upon three grounds, which may be briefly stated as follows, to wit: 1. That there was no evidence of actionable negligence; 2. That the undisputed evidence showed that Mr. Bell was an independent contractor; and 3. That the amount tendered with regard to the release was not the correct amount.

The plaintiff thereupon moved that the Court do hold as a matter of law that Willie Gomillion, deceased, was an employee of the Columbia Dairies; and also that the release be stricken out as not constituting a release of Columbia Dairies, because it purports to release Mr. Bell only. But this motion was overruled.

The trial Judge held that as to the defendants' third ground a verdict could not be directed, because the plaintiff expressly denied in her testimony receiving the sum of $25 claimed by the defendants as having been paid by them, in addition to the sum of $385 above referred to. There does not seem to have been any discussion as to the first ground, relating to the merits of the action, and it is quite clear that the motion was not granted on this ground, and indeed could not properly have been. In the course of the argument counsel for the defendants amended his motion by adding a further ground that the tender made by the plaintiff was not sufficient, because it was not made to Mr. Bell; and he also added the ground that the undisputed evidence in the case, 'or the overwhelming weight of the evidence in the case', established the validity of the release.

Judge Bellinger held that a verdict should be directed in favor of the defendants, upon the ground that the release was valid in all respects; and also upon the ground that the relation of Mr. Bell to the Columbia Dairies was that of an independent contractor.

After the direction of a verdict in favor of the defendants, counsel for the plaintiff moved for a new trial, alleging error in the Court's ruling as to the release and upon the question of independent contractor; and also alleging that the trial Judge was in error in not holding the decedent 'was an employee of the Columbia Dairies, without regard to the question of whether or not Mr. Bell was an independent contractor'; and there was another ground, to wit, that even if the release were valid, it was a release of Mr. Bell and not of the Columbia Dairies. The motion was overruled.

The plaintiff in due course took this appeal from the judgment of the Circuit Court on five exceptions, raising two questions which we state and will discuss in this order: 1. Was the release valid and binding? 2. Was J. L. Bell an independent contractor or an employee of Columbia Dairies?

Question 1. Was the release valid and binding?

After a careful study of all the testimony in the cause, in view of the established principle that in the determination of whether a verdict should be directed the evidence must be considered in the light most favorable to the adverse party, our conclusion is that the trial Judge erred in directing a verdict upon this ground, and that the evidence required the submission of this issue to the jury. In other words, we hold that there is material evidence in the record which, if true, would tend to establish in the mind of a reasonable juror that the release was invalid and without force or effect. Cox v. McGraham, 211 S.C. 378, 45 S.E.2d 595.

It is therefore necessary for us to refer to certain parts of the testimony, in order to show the grounds upon which our conclusion is based; even though such testimony is contradicted, modified or explained by or in behalf of the defendants. And we turn first to the testimony of the plaintiff herself, from which it appears that shortly after the accident she was informed of the same by Mr. Bell, who was accompanied by Mr. Martin, designated as a route foreman of the Columbia Dairies; and she went with them to the hospital, and upon arriving there learned that her son was dead; and the body was sent to Manigault's Funeral Home.

We now quote the following from the transcript of her testimony relating to what occurred after she returned from this trip to her home:

'Q. What happened after you got home? A. Mr. Forsythe and Mr. Bell came that afternoon, on Monday, and said, 'How are you feeling?' and I said, 'I am not able to get up,' and they went on off, and said, 'I will be back to see you in the morning.' They came back on Tuesday, and I was still in bed, and Mr. Forsythe said, 'Mattie, now get up, and get yourself together, and let's get through with this, and get it over. I want to let you know that Sonny wasn't work(ing) for me; he was working for Mr. Bell, and I am just helping Mr. Bell out, because he is a poor man.'

'Q. Because he is a poor man? A. Yes, sir.

'Q. What did you do then? A. I went back to bed, and Wednesday afternoon, Mrs. Manigault sent a boy after me, and I went to the funeral home, and when I got there, there was two white men and Mrs. Manigault there, and I signed a paper, but I don't remember--I don't remember signing it. I signed it, but I don't remember what was done afterwards. I really wrote my name, but I don't know what was done afterwards.'

She also testified to the effect that Mr. Forsythe, one of the defendants, (at her home and presumably on Tuesday), offered her $185 and told her (quoting) 'that was all he was going to give me, because Sonny (the deceased) wasn't working for him, and he was only helping Mr. Bell out, because he was a poor man'. She also testified that she never received $185 or any money from Mr. Forsythe or from Mr. Bell.

She further testified that the deceased, Willie Gomillion, was her main dependence; that out of his weekly wage of $5 he gave her (quoting) '$4.00 of his money to help with his little brothers and sisters, because I have no husband. I am a widow.'

The undisputed testimony shows that the alleged release was signed by the plaintiff at the Manigault Funeral Home, to which she was taken on Wednesday afternoon, June 12, 1946, and that there were present W. A. Plott, Coroner of Richland County, Annie Mae Manigault, the undertaker, S. B. Forsythe, one of the defendants, and B. E. Smyrl,...