Jenkins v. Southern Ry.-carolina Div.

• Decision Date: 20 September 1929
• Docket Number: (No. 12732.)
• Citation: 150 S.E. 128
• Parties: JENKINS. v. SOUTHERN RY.-CAROLINA DIVISION.
• Court: South Carolina Supreme Court

150 S.E. 128

JENKINS.

v.SOUTHERN RY.-CAROLINA DIVISION.

(No. 12732.)

Supreme Court of South Carolina.

Sept. 20, 1929.

Cothran, J., dissenting.

Appeal from Common Pleas Circuit Court of Charleston County; W. H. Townsend, Judge.

Action by Eva V. Jenkins, as administratrix of Otis L. Jenkins, against the Southern Railway-Carolina Division. Judgment for plaintiff, and defendant appeals. Affirmed.

The exceptions of appellant are as follows:

"I. Because the Court erred in holding and charging the jury that the complaint states a cause of action under the Act of Congress and also a cause of action for wilfulness under the common law as amended by Lord Campbell's Act, and that they might find a verdict for plaintiff if there was evidence of wilfulness, even if they found that deceased was not an employee of the defendant, whereas the Court should have held and charged the jury that the complaint stated but one cause of action, which was based exclusively on the Act of Congress known as the Federal Employers' Liability Act, and that if deceased was not at the time of his death an employee of defendant, they could not And a verdict for the plaintiff.

"II. Because the Court erred in holding that the jury would be at liberty in this action to find such punitive damages as they might see fit against the defendant, if deceased was not an employee of defendant, but there was evidence going to show that the acts or omissions of the defendant alleged in the complaint amounted to wilfulness to the deceased who happened to be upon the train.

"(a) In that the action having been brought exclusively under the Federal Employers' Liability Act of Congress, no punitive damages are recoverable.

"(b) In that if deceased was not an employee of the defendant, no verdict at all against the defendant could be found in this action.

"(c) In that no damages were recoverable in this action other than such pecuniary loss as plaintiff and her husband may have been shown by the testimony to have suffered.

"III. Because, this being an action brought exclusively under the Federal Employers' Liability Act of Congress for the death of an alleged employee of the defendant engaged in Interstate Commerce, the Act of Congress was the law of the case, and the Court erred in holding that if plaintiff failed to prove that her intestate was an employee, yet if there is any evidence to prove that he was injured by a wilful act on the part of the defendant, plaintiff would have the right in this action to recover damages under Lord Campbell's Act on the allegation of wilfulness.

"IV. Because the Court after holding at the close of the testimony that there were two causes of action stated in the complaint, viz., a cause of action for injury to plaintiff's intestate as an employee under the Federal Employers' Liability Act, and a cause of action to plaintiff's intestate as to trespasser under Lord Campbell's Act, erred in refusing to require plaintiff to elect as to which cause of action she would rely on, inasmuch as the said causes of action are inconsistent.

"V. Because the Court erred in refusing to grant defendant's motion for a non-suit, at the close of plaintiff's testimony.

"(a) In that the only reasonable inference to be drawn from the evidence is that the relation of master and servant did not exist between defendant and plaintiff's intestate, and that the deceased was a trespasser.

"(b) In that the only reasonable inference to be drawn from the evidence was that plaintiff's intestate was not a servant of the defendant, but was a trespasser on the train and there was no evidence that the deceased was wilfully injured by the defendant.

"VI. Because the Court erred in refusing defendant's motion for a directed verdict.

"(a) In that the only reasonable inference to be drawn from the evidence is that the relation of master and servant did not exist between defendant and plaintiff's intestate, and that the deceased was a trespasser.

"(b) In that the only reasonable inference to be drawn from the evidence was that plaintiff's intestate was not a servant of the defendant, but was a trespasser on the train and there was no evidence that the deceased was wilfully injured by the defendant.

"VII. Because the Court erred in refusing defendant's motion to set aside the verdict in favor of plaintiff and in arrest of judgment, in that the verdict was not responsive to the issues and differed materially from the pleadings and the issues made thereby because,

"(a) Although the jury found that plaintiff's intestate was not an employee of the defendant in this action which is based exclusively on the Federal Employers' Liability Act, nevertheless the jury found a verdict against the defendant for Ten Thousand ($10,000.00) Dollars actual damages and Five Thousand ($5,000.00) dollars punitive damages.

"(b) There was no issue under the pleadings as to the liability, if any, of defendant to plaintiff, if her intestate was injured while a trespasser on the engine of the defendant, and a verdict for such injuries in this action could not be sustained.

"(c) The verdict of the jury, in its special finding, that the plaintiff's intestate was not in the employment of the defendant at the time of his death, exonerated the defendant from all liability in this action.

"VIII. Because the Court erred in refusing to grant a new trial in this cause, or to set aside the verdict for punitive damages.

"(a) Because the verdict for actual damages and for punitive damages against the defendant was contrary to the law and the evidence, and is not responsive to the issues or sustained by the evidence.

"(b) Because the action was based exclusively on the Federal Employers' Liability Act of Congress, and there was no warrant of law for a verdict of punitive damages in this action.

"(c) Because there was no evidence to justify a finding that the plaintiff's intestate came to his death through the wilfulness of the defendant.

"(d) Because the only reasonable inference to be drawn from the evidence was that plaintiff's intestate contributed to his death by his own recklessness and wilfulness, without which it would not have happened.

"IX. Because the Court erred in preparing and submitting to the jury specific questions as to wilful acts on the part of the defendant and in requiring answers to be formulated by the jury In connection with their verdict; such matters not being relevant to the issues in the case, and being misleading to the jury as to the issues to be decided.

"X. Because the Court erred in not holding that the special finding of the jury that the plaintiff's intestate was not in the employment of the defendant at the time of his death, exonerated the defendant from all liability in this action, and in refusing to set aside the verdict against defendant."

Barnwell and Black, of Charleston, and Frank G. Tompkins, of Columbia, for appellant.

Thos. P. Stoney, A. R. McGowan, and J. D. E. Meyer, all of Charleston, for respondent.

BLEASE, J. This is an action in tort, growing out of the death of Otis L. Jenkins, plaintiff's intestate, who, while riding on an engine of one of the defendant's trains, was killed in a head-on collision, occurring on the night of October 30, 1926, near Kingsville, this state. In the complaint, the defendant was charged with several acts of negligence, one being that the engineer of the train, which the intestate was firing at the time of his death, was asleep. The employment of Jenkins at the time by the defendant as a fireman, engaged In interstate commerce, was also alleged, and it was set forth in the complaint that the suit was brought under the provisions of the Federal Employers' Liability Act (45 USCA §§ 51-59). The plaintiff also set up in his complaint allegations to the effect that the death of the intestate was due to, and caused by the recklessness, willfulness, and wantonness of the defendant, and its agents and servants.

The defendant, in its answer, alleged that the intestate was not its employee at the time of his injuries and death, but that he was riding on the engine without authority and in violation of law, "and was a trespasser, and that under the law no duty was owing to him in the operation of the said train except not to injure him willfully, when discovered, and this defendant denies that the injuries complained of were due to any willfulness or negligence on the part of this defendant."

The trial in the court of common pleas of Charleston county, with Hon. W. H. Town-send, circuit judge, presiding, resulted in a verdict against the defendant for $10,000 actual damages and $5,000 punitive damages.

For the purpose of making certain and clear the issues involved in the case, and to have this certainty reflected In the verdict, the court required the jury to make special findings in addition to their general verdict. In answer to specific questions prepared and submitted by the court, the jury found: First, the plaintiff's intestate was not in the employ of the defendant when he was killed. Second, his death was proximately caused by the negligence and willfulness of the defendant. Third, he was not guilty of contributory negligence.

There was ample evidence, in our opinion, to sustain the findings made by the jury and the verdict rendered.

The testimony on the part of the defendant showed that Jenkins had been a student fireman, had completed his apprenticeship, and, previous to the accident, had made a few trips as a fireman, for which he had received pay. On the trip in which he lost his life, he was not acting under orders, but, without obtaining proper permit therefor, and In violation of the rules of the defendant, he volunteered his services to the regular fireman and asked the privilege of firing the engine. As the intestate was not acting in the line of his duty when he was killed (the contention of the defendant in this particular being sustained by the finding of the jury), plaintiff's theory of the right to recover under the...