Hewitt v. Fleming

• Decision Date: 27 March 1934
• Docket Number: 13813.
• Citation: 173 S.E. 808,172 S.C. 266
• Parties: HEWITT v. FLEMING et al.
• Court: South Carolina Supreme Court

173 S.E. 808

172 S.C. 266

HEWITT v. FLEMING et al.

No. 13813.

Supreme Court of South Carolina

March 27, 1934

Appeal from Common Pleas Circuit Court of Florence County; R. W Sharkey, Judge.

Separate actions by Mrs. Bessie Hewitt, by Mrs. Blanche Thomas, and by A. C. Thomas, against Ervin Fleming and another, tried together. From a judgment in favor of the plaintiff in each case, the defendant Ervin Fleming appeals.

Judgments affirmed.

P. H McEachin, of Florence, for appellant.

Baker & Baker, of Florence, for respondents.

CARTER Justice.

The issues herein involve an appeal by Ervin Fleming, a defendant, in three cases, instituted in the civil court of Florence county. The litigation grew out of an automobile collision, in which three persons, Mrs. Bessie Hewitt, Mrs Blanche Thomas, and A. C. Thomas, instituted separate actions against the defendants, Ervin Fleming and Beulah Thomas. The suits were tried together in the said court before his honor R. W. Sharkey, judge of said court, and a jury, resulting in a verdict for the plaintiff Mrs. Bessie Hewitt, in the sum of $350, for actual and punitive damages, against the defendants; the sum of $100, as actual and punitive damages, for Mrs. Blanche Thomas, against the defendants; and for the plaintiff A. C. Thomas the sum of $50, as actual damages, against the defendants. From the judgment on the verdict, the defendant Ervin Fleming has appealed to this court. The other defendant, Beulah Thomas, has not appealed.

The record in the case discloses that the defendants made a motion for directed verdict, which motion his honor, the trial judge, overruled. The record also discloses that the defendants made a motion for a new trial, and this motion was also overruled.

In his exceptions appellant imputes error to the trial judge in refusing the motion for direction of a verdict, and also regarding the charge to the jury. The motion for direction of a verdict was based upon the following grounds:

"1. That the evidence is not sufficient to show that the defendant, Beulah Thomas, was acting as the agent of Ervin Fleming at the time of the collision, alleged in the complaint, occurred.

2. Upon the ground that the evidence is not sufficient to show that the defendant, Beulah Thomas, was a member of the defendant, Ervin Fleming's family, as contemplated by the family doctrine principle.

3. That the evidence is susceptible of no other inference but that Beulah Thomas was not the agent of Ervin Fleming but was acting to serve her individual purpose and individual business.

4. That no other reasonable inference can be drawn from the testimony but that Beulah Thomas was not the agent of Ervin Fleming at the time the collision occurred either under the general principles of principal and agent or under the principle of the family doctrine.

5. There is no evidence in the case that the model 'T' Ford car was provided by Ervin Fleming for general family use or pleasure.

6. That all the evidence shows that the car was used by Ervin Fleming prior to the purchase of the new car for his personal use and not that of his family."

In our opinion the trial judge committed no error in refusing the motion for direction of a verdict. The automobile involved in the case was referred to as a model T Ford, and at the time of the collision in question was operated by the defendant Beulah Thomas. The contention of the plaintiffs is that this car was owned by the defendant Ervin Fleming, and purchased and kept by him as a family car, that is, for his use and for the use of the members of his family, contending, further, that the defendant Beulah Thomas was a member of his family, and that either under the general principles of principal and agent or under the principle of the family doctrine the appellant, Ervin Fleming, was liable. The wife of the appellant, Ervin Fleming, was the aunt of Beulah Thomas. Beulah's mother died when Beulah was but six...