Gray v. Green Const. Co. of Indiana, Inc.

• Court: South Carolina Supreme Court
• Writing for the Court: BUSSEY; MOSS; NESS
• Citation: Gray v. Green Const. Co. of Indiana, Inc., 263 S.C. 554, 211 S.E.2d 871 (S.C. 1975)
• Decision Date: 05 February 1975
• Docket Number: No. 19953,19953
• Parties: Alcede N. GRAY, Respondent, v. GREEN CONSTRUCTION COMPANY OF INDIANA, INC., Appellant.

Page 871

211 S.E.2d 871

263 S.C. 554

Alcede N. GRAY, Respondent, v. GREEN CONSTRUCTION COMPANY OF INDIANA, INC., Appellant.

No. 19953.

Supreme Court of South Carolina.

Feb. 5, 1975.

C. Weston Houck, Florence, for appellant.

J. Franklin Spears, Lamar, and Robert L. Kilgo, Darlington, for respondent.

BUSSEY, Justice.

The plaintiff-respondent in this action is the owner of a tract of land in Darlington County adjacent to the intersection of U.S. Highway I--20 and S.C. Highway 131. The action was commenced against the appellant Green Construction Co., which was engaged in performing a construction contract with the South Carolina Highway Department, also a defendant. Respondent asserted damage to his property caused by the negligence, carelessness and recklessness of the appellant Green and a taking by the Highway Department of private property without just compensation therefor.

Upon trial the jury returned a verdict for the plaintiff in the amount of $3,500 against both defendants. Each of the defendants thereafter made a motion for judgment n.o.v., or, in the alternative, a new trial. The trial judge granted the motion of the Highway Department for a judgment n.o.v., but denied the motion of Green for judgment n.o.v., as well as its alternative motion for a new trial. Appellant's sole contention is that the trial court erred in failing to grant a new trial after granting the Highway Department's motion for judgment n.o.v.

It is argued that the verdict of the jury was influenced by the presence of the Highway Department in the case and that the jury would not have rendered the verdict it did if the appellant had not been yoked with the Highway Department. Such contention on the part of the appellant is predicated on the following decisions of this Court: Webber v. Town of Jonesville, 94 S.C. 189, 77 S.E. 857; Beauchamp v. Winnsboro Granite Corp., 113 S.C. 522, 101 S.E. 856; Courtney v. American Railway Express Co., 120 S.C. 511, 113 S.E. 332; James v. Western Union Telegraph Co., 130 S.C. 533, 126 S.E. 653 and Collins v. Smith, 261 S.C. 334, 200 S.E.2d 71. In each of these cases a new trial was granted to one party because of the granting of a new trial or other relief to a co-defendant. Of these cases, Webber, James and Beauchamp are readily distinguishable in that there were verdicts for punitive damages involved, and as pointed out by Justice Hydrick in the Webber case, punitive damages are dependent in great measure upon the ability of the defendants to pay, and upon the discretion of the jury. He went on to point out, however, that,

'Nevertheless, in cases where the amount of the damages sustained as the result of a tort is certain, there might be no injustice in setting aside the verdict therefor as to one or more of the defendants, and allowing it to stand as to the other or others, for, the latter being both jointly and severally liable therefor, the plaintiff has the right to look to him or them alone.'

In the Courtney case, an action for slander, the jury returned a verdict for $5,000 against the corporate defendant, as a principal, and a co-defendant as agent thereof. The opinion of the court does not reflect the precise nature of the verdict. If a general verdict, it could, and probably did, include punitive damages. On appeal the judgment was reversed as to the corporate defendant, the Supreme Court holding that the agent was acting outside the scope of his authority when the alleged slander was uttered. The court granted the co-defendant agent a new trial, relying, inter alia, on the doctrine of Washington Gas-Light Company v. Lansden, 172 U.S. 534, 19 S.Ct. 296, 42 LEd. 543. We quote the following from that decision,

'Where the judgment is based upon a cause of action of such a nature that it might work injustice to one party defendant, if it were to remain intact as against him while reversed for error as to the other defendants, then we think the power exists in the court, founded upon such facts of possible injustice, to reverse the judgment in toto, and grant a new trial in regard to all the defendants.'

In the Washington Gas-Light case, it should be noted that the U.S. Supreme Court endorsed its earlier decision in Pennsylvania Railroad Co. v. Jones, 155 U.S. 333, 15 S.Ct. 136, 39 L.Ed. 176. In the latter case the court decided that there had been a failure to prove a cause of action against one co-defendant, while no such failure existed as to the other defendants, and set aside the judgment as to the one defendant but permitted it to stand against the others, the precise situation which exists here. In that case the court saw no reason or circumstances which would warrant relief to the other defendants.

The Courtney case is readily distinguishable from the instant case, we think, because there was a substantial verdict against a large corporation and an individual employee, which...