Jenkins v. Southern Ry. Co.

• Decision Date: 26 April 1928
• Docket Number: 12437.
• Citation: 143 S.E. 13,145 S.C. 161
• Parties: JENKINS v. SOUTHERN RY. CO. et al.
• Court: South Carolina Supreme Court

143 S.E. 13

145 S.C. 161

JENKINS v. SOUTHERN RY. CO. et al.

No. 12437.

Supreme Court of South Carolina

April 26, 1928

Action by B. M. Jenkins against the Southern Railway Company and another. Application for injunction refused, and complaint dismissed.

R. C Holman, Brown & Bush, and Thos. M. Boulware; all of Barnwell for plaintiff.

Frank G. Tompkins, of Columbia, and Harley & Blatt, of Barnwell for defendants.

COTHRAN J.

This is an action in the original jurisdiction of this court for an injunction restraining the defendants from enforcing the judgment of this court in a former action between the same parties.

Speaking for himself alone, the writer has serious doubts of the jurisdiction of this court of an original action for injunction, under article 5, § 4, of the Constitution, which apparently limits the jurisdiction to orders of injunction, in cases pending in the court of common pleas but, as the question has not been raised, it will for the present be passed over.

It appears that in August, 1922, the plaintiff commenced an action against the defendants in the court of common pleas of Barnwell county for damages on account of an alleged slander of the plaintiff by the defendant Cooper, an employee of the defendant railway company. The action terminated on circuit in a judgment in favor of the plaintiff, for punitive damages, against the defendant Cooper for $150 and against the defendant railway company for $2,000. The defendants made a motion for a new trial upon the ground that the damages could not be thus apportioned. The motion was refused, and the defendants appealed to this court, which, in an opinion filed December 13, 1924 (130 S.C. 180, 125 S.E. 912), and remitted to the circuit court on December 23, 1924, reversed the judgment of the circuit court, upon the ground stated in the motion for a new trial, and remanded the case for a new trial. The new trial has not been had.

Thereafter this court, in the case of Johnson v. R. Co., 142 S.C. 125, 140 S.E. 443, filed an opinion, May 26, 1927, overruling the case of Jenkins v. R. Co., 130 S.C. 180, 125 S.E. 912, holding that punitive damages in such cases could be apportioned.

The plaintiff in the present proceeding claims that he should be allowed, upon the new trial to be had, the benefit of the ruling in the Johnson Case.

The decision of the court upon the appeal referred to is not only res adjudicata as between the parties, but is the "law of the case," right or wrong.

"It may be stated generally, that a court of review is precluded from agitating questions which were propounded, considered, and decided in a previous review; the decisions agree that, as a general rule, when an appellate court passes upon a question and remands the cause for further proceedings, the question then settled becomes the 'law of the case' upon a subsequent appeal, and the only mode of reviewing the decision in the prior appeal is by a motion for a rehearing." 2 R. C. L. 223.

In 26 Am. & Eng. Enc. L. (2d Ed.) 184, the doctrine commonly called "the law of the case" is thus stated:

"A matter decided on one appeal cannot be re-examined on a second appeal in the same case; for the decision of an appellate court, whether right or wrong, in a case before it, is conclusive upon the points presented throughout all the subsequent proceedings in the case, both upon the appellate court itself and upon the trial court. Concisely, it is said that the decision on appeal becomes 'the law of the case."'

In Jones v. Railway Co., 65 S.C. 410, 43 S.E. 884, it is held (quoting from syllabus):

"A principle of law once announced by this court in a case is the law of that case, although the doctrine be modified in other cases decided subsequently, but before the final determination of such case."

In that case the court said:

"The appellant, however, contends that the more recent decisions *** establish a contrary rule. Even if this

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