Hubbard v. Rowe

• Decision Date: 23 October 1939
• Docket Number: 14947.
• Citation: 5 S.E.2d 187,192 S.C. 12
• Parties: HUBBARD v. ROWE et al.
• Court: South Carolina Supreme Court

5 S.E.2d 187

192 S.C. 12

HUBBARD v. ROWE et al.

No. 14947.

Supreme Court of South Carolina

October 23, 1939

Neville Bennett, of Bennettsville, and Herbert & Dial and Benet Shand & McGowan, all of Columbia, for appellant.

Tison & Miller, N. W. Edens, and G. W. Freeman, Jr., all of Bennettsville, for respondent.

STABLER Chief Justice.

This action was brought in March, 1933, against the defendants Standard Oil Company of New Jersey, a corporation, and E. W Rowe, for damages in the sum of $250,000, on account of physical injuries claimed to have been received by plaintiff in the handling and dispensing of gasoline and tetraethyl lead gasoline.

The complaint alleged, among other things, that the oil company owned a filling station in the town of Bennettsville, South Carolina, and that Rowe at all of the times mentioned was in the employ of his co-defendant, and that the things claimed to have been done by him were done in the course of such employment; that at this filling station the defendants sold the products of the oil company, including tetraethyl lead gasoline under the name of "Esso", which "is a highly poisonous compound, and is readily absorbed by the tissues of the body and pores of the skin"; and that the poison, which is also conveyed into the system by the inhalation of the vapors from such gasoline "insidiously attacks the human body, causing dulled perception, sluggishness, insanity and blindness", etc., some persons being more susceptible than others to the ravages and poisonous effects of this compound. It was further alleged that the plaintiff, then only seventeen years of age, was employed by Rowe about or during the summer of 1929 "as a wage earner of the defendants to help off and on about the said filling station"; that the machine or appliance from which was dispensed tetraethyl gasoline was unsafe and defective, which condition was well known to the defendants, and to each of them; but despite this fact, such appliance was continued in use, and "was the only method by which the said poisonous compound was dispensed"; that on or about August 26, 1929, while plaintiff was discharging his duties in and about the filling station and was dispensing tetraethyl lead gasoline from this unsafe and defective appliance, a large quantity of such gasoline escaped from the glass container and gushed through the hose into plaintiff's face, eyes and ears, and was absorbed by the tissues of his body and the pores of the skin, "poisoning and burning his eyes and poisoning his system"; and that by reason thereof he is now totally blind in one eye, and that the other eye is "progressively deteriorating to such an extent that he will surely lose the use of it and will be totally blind".

It was claimed, and so alleged, that the defendant, Standard Oil Company of New Jersey, was negligent, wilful, reckless and wanton in the following specific particulars, the defendant Rowe, except as to (5), being charged with the same acts of negligence and wilfulness:

"(1) With full knowledge of the dangers incident to the handling of gasoline and tetraethyl gasoline, it failed in its duty to warn plaintiff, a minor, of these dangers.

"(2) With full knowledge as aforesaid of the dangers incident to the handling of gasoline and tetraethyl gasoline, it failed to advise the plaintiff, a minor, of proper protective measures thereabout.

"(3) It failed to provide plaintiff a reasonably safe place to work in that:

"a. It permitted and required him to dispense tetraethyl lead gasoline from a hose not equipped with a cut-off at the nozzle.

"b. It permitted and required plaintiff, a minor, to dispense tetraethyl lead gasoline from a defective appliance equipped with one cut-off only, and that at the base of the glass reservoir.

"(4). It caused and required plaintiff to work in soiled and dirty clothing saturated with a poisonous compound.

"(5). It failed to provide plaintiff with a reasonably safe and proper appliance; and caused the plaintiff to work about a defective and unsafe appliance."

By their separate answers, the defendants denied the material allegations of the complaint and pleaded the additional defenses of contributory negligence and assumption of risk. The Standard Oil Company also set up the defenses that it had rented to its co-defendant, E. W. Rowe, on a commission basis, a filling station which it owned in the town of Bennettsville; that under the contract between them, Rowe "was to provide any and all necessary service and was to employ at his own expense and under his own supervision and direction any and all salesmen, laborers and other help necessary in order to operate the said filling station"; and that any employment of the plaintiff by Rowe to work at the filling station was a matter with which the defendant company had no connection and over which it exercised no control.

The case was first tried in June, 1935, and the jury failing to agree, a mistrial was ordered. On the second trial, in December, 1937, a verdict for actual damages in the sum of $60,000 was rendered against the Standard Oil Company alone --there was no finding against Rowe--and from judgment entered this appeal is taken by that defendant.

This case, which is one of much interest, was argued at the bar of the Court with earnestness and ability. There are thirty-one exceptions, but counsel for the appellant have reduced the questions for decision to sixteen, all of which we think are fairly presented by the appeal. Before beginning our consideration of them, however, we will dispose of the following contention of the respondent: "The rule that in order to carry to this Court objections to rulings made in the course of the trial, such objections must first be presented to the trial Court on a motion for a new trial, and that the stated grounds of such a motion delimit the questions that may be raised on appeal (as to matters occurring during the trial) has been frequently declared by this Court. The application of that rule to the present case eliminates twenty-six of the exceptions (including subdivisions) in this case."

In matters of appeal, so far as it appears, all that this Court has ever required is that the questions presented for its decision must first have been fairly and properly raised in the lower Court and passed upon by that Court. Of course, as to questions specifically affecting the verdict, or other questions not specifically ruled on, the Court below must of necessity be given an opportunity on motion for a new trial of passing upon and correcting such matters before they can or will be reviewed by this Court on appeal. The decided cases relied on by the respondent go no further than that.

In Detheridge v. Earle, 3 S.C. 396, cited by appellant, syllabus 2, which correctly states the holding of the Court, reads as follows: "For error of law, a new trial may be granted on appeal from the judgment, though no motion for a new trial was made before the Circuit Judge."

In Brice v. Hamilton, 12 S.C. 32, decided in 1879, where a similar question was considered, the Court said: "A general objection is made by the defendants to the effect that no application was made to the Circuit judge for a new trial, but the appeal is directly from the judgment, and, therefore, as they contend, the exceptions taken at the trial cannot be heard. There is no ground for such an objection. It was competent for the plaintiffs to have moved before the Circuit Court for a new trial, but as the objections to the verdict relate to matters of law alone, and could be heard in this court, the appellants were not bound to submit them to the Circuit judge, on a motion for a new trial, before appealing to this court. There is no provision of the code exacting any such condition to an appeal to this court, and no antecedent practice from which such a rule could be inferred. An appeal from a judgment involves any intermediate order involving the merits and necessarily affecting the judgment (Code, § 11), and this includes all rulings and charges material to the judgment."

The rule as thus stated in the Brice case has never been changed, either by statute or otherwise, as far as the cited decisions disclose. The claim of the respondent, therefore, is held to be without merit.

At the close of all the testimony, counsel for the Standard Oil Company (hereinafter referred to as the company or the appellant) moved for a directed verdict, one of the grounds of the motion being that plaintiff's action was based on the relationship of master and servant and that the evidence failed to show that Hubbard was ever employed by or was ever an employee of the appellant. The trial Judge ruled as follows: "Assuming the duty that I have of construing this contract in accordance with its terms and the evidence submitted in the case, I am going to hold that the relationship of master and servant did not exist between Hubbard and the Standard Oil Company of New Jersey, but that the evidence considered in connection with the contract made a relationship of principal and agent, the special characteristics of which it is not necessary to decide at this time." He further held, however, that the facts disclosed by the evidence imposed upon the company a duty to Rowe and his employees respecting the equipment furnished for the dispensing of the company's products, and that this duty included the furnishing of reasonably safe appliances and equipment with which to do this work at the filling station; and whether this was done or not was a question for the jury under the testimony. He accordingly ruled out, as to the appellant, specifications of negligence (1) and (2), and instructed the jury that the company owed Hubbard "no special duty, such as will arise from...