Johnston v. Bagger
| Decision Date | 13 August 1929 |
| Docket Number | 12717. |
| Citation | 149 S.E. 241,151 S.C. 537 |
| Parties | JOHNSTON v. BAGGER. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Charleston County; W. H Townsend, Judge.
Action by Francis Johnston, an infant of the age of five years, by her guardian ad litem, F. J. Johnston, against J. C. H Bagger. From a judgment for plaintiff, defendant appeals. Affirmed conditionally .
Edwin J. Blank, of Cincinnati, Ohio, for appellant.
James Allan and F. W. Aley, both of Charleston, for respondent.
New Trial Nisi.
This is a tort action, growing out of injuries received by Francis Johnston, a child five years of age, on a public street in the city of Charleston, from being struck by an automobile driven by the appellant. The trial in the court of common pleas for Charleston county, with Hon. W. H. Townsend presiding, resulted in a verdict in favor of the plaintiff for $1,000 actual damages and $3,500 puitive damages.
The appellant comes to this court on 15 exceptions, many of which may be disposed of together.
The complaint, after alleging certain injuries received by the plaintiff, contained in addition a general statement that plaintiff, "was thus and otherwise injured." The defendant gave proper notice of a motion to require the pleading to be made more definite and certain by alleging in what particulars the plaintiff was "otherwise injured." The presiding judge ordered the complaint amended by inserting the words "incurred large medical expenses," in lieu of the words " otherwise injured." In his first exception, the appellant complains that the action of the court was an abuse of discretion, that the defendant was taken by surprise, and had no opportunity to meet with evidence the new matter set up, and that an improper element of damages was alleged, since in this action for injuries to the child the father of the child, who was appointed the guardian ad litem for this suit, could not recover in this action moneys expended by him for the child's benefit.
The amendment came as a result of the appellant's motion. The record does not disclose that he made any objection thereto, or that he asked for a continuance of the cause, or that he announced any surprise at the ruling of the court. It is too late for him to complain now, and the exception is without merit.
Exceptions 2, 3, and 4 relate to the refusal of the presiding judge to allow witnesses to answer certain questions asked of them by appellant's counsel. The question asked in practically the same form was this, "Did not Mr. Bagger (appellant) do everything he could to avoid hitting the little girl?" In one instance, the question was asked on cross-examination of a witness for the respondent, and in other instances it was asked on direct examination of appellant's witnesses. All the witnesses who had seen the accident testified as to the facts thereof. The judge properly ruled that the answers of the questions would only be opinion testimony.
One of the assignments of error as to the rulings made by the court on the admissibility of the testimony in question is that the court had formerly allowed a witness for the respondent to testify that, if the appellant had been paying proper attention and going at a moderate rate of speed, he could have stopped and avoided hitting the little girl; and the appellant urges that the testimony he sought to bring out was in reply to respondent's testimony. Perhaps the testimony adduced by the respondent was incompetent, but the appellant cannot urge that now as reversible error, because he did not object to the testimony when it was offered.
The exceptions under consideration must be overruled.
The fifth, eighth, ninth, tenth, eleventh, twelfth, thirteenth fourteenth, and fifteenth exceptions relate to the refusal of the presiding judge to grant the appellant's motion for a directed verdict as to punitive damages, and the refusal to grant a new trial generally, and especially as to punitive damages. The evidence was entirely sufficient to...
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Mims v. Bennett
...... new trial of the case. This court has the right to affirm the. judgment below conditionally. See Johnston v. Bagger, 151 S.C. 537, 149 S.E. 241. The verdict here for. actual damages was excessive to the amount of $131.32, and. should be reduced ......
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Evans v. Century Ins. Co.
......This Court has the right to affirm the. judgment below conditionally. Mims v. Bennett, 160. S.C. 39, 158 S.E. 124, 78 A.L.R. 360; Johnston v. Bagger, 151 S.C. 537, 149 S.E. 241. The only error in. the judgment is that the amount of the recovery [201 S.C. 281] is excessive. This was ......
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Southern v. Cudahy Packing Co.
...... accident--". . . Counsel. for respondent, at this point, objected to the question,. under the authority of Johnston v. Bagger, 151 S.C. 537, 149 S.E. 241, on the ground that the answer necessarily. involved the opinion of the witness. The court sustained the. ......