Harvey v. Southern Ry. Co.
| Decision Date | 18 December 1925 |
| Docket Number | 11886. |
| Citation | 130 S.E. 884,133 S.C. 324 |
| Parties | HARVEY v. SOUTHERN RY. CO. ET AL. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Barnwell County; C. C. Featherstone, Judge.
Action by W. L. Harvey, administrator, against the Southern Railway Company and another. Verdict for plaintiff, and from an order granting a new trial plaintiff appeals. Appeal dismissed and case remanded for new trial.
J. O. Patterson, Jr., of Barnwell, and Jas. A. Kennedy, of Williston, for appellant.
Harley & Blatt, of Barnwell, for respondents.
The plaintiff, having recovered a verdict of $6,500 for damages on account of the alleged wrongful death of his intestate, Mrs. Daisy Harvey (she having been thrown from a buggy, when the mule attached to it became frightened by a train of the defendant near a highway crossing in Barnwell county), the judgment entered upon said verdict having been affirmed by this court (124 S.C. 375, 117 S.E. 411), brings the present action for damages under what is known as the "survival statute" for pain and suffering of his intestate.
The case was tried before his honor, Circuit Judge Featherstone, and a jury. The verdict was for $3,000 actual damages and $1,000 punitive damages. The defendants moved for a new trial, and the circuit judge passed an order granting a new trial nisi, requiring the plaintiff to remit so much of the verdict as was for $1,000 punitive damages or submit to a new trial, upon the ground: "I am convinced that this is not a case where punitive damages should be allowed."
The plaintiff declined to remit, and now appeals from the order of new trial upon the ground that there was abundant evidence tending to support the verdict for punitive damages. It is conceded that there was also abundant evidence tending to relieve the defendants from the imposition of punitive damages. The order of the circuit judge was plainly based upon a consideration of the evidence and a conclusion therefrom inconsistent with the verdict. The case therefore falls within the rule that, under these circumstances, the order is not appealable. Snipes v. Davis, 131 S.C. 298, 127 S.E. 447; Ingram v. Hines, 126 S.C. 509, 120 S.E. 493.
Appeal dismissed. Case remanded to circuit court for the new trial ordered.
WATTS and MARION, JJ., and PURDY, A. A. J., concur.
GARY, C.J., did not participate.
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