Key v. Carolina & N.W. Ry. Co.

• Decision Date: 05 April 1929
• Docket Number: 12633.
• Citation: 147 S.E. 625,150 S.C. 29
• Parties: KEY v. CAROLINA & N.W. RY. CO.
• Court: South Carolina Supreme Court

147 S.E. 625

150 S.C. 29

KEY v. CAROLINA & N.W. RY. CO.

No. 12633.

Supreme Court of South Carolina

April 5, 1929

Appeal from Common Pleas Circuit Court of Chester County; John S Wilson, Judge.

Action by F. J. Key against the Carolina & Northwestern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded for new trial.

Frank G. Tompkins, of Columbia, John A. Marion, of York, and Glenn & MacAulay, of Chester, for appellant.

Hemphill & Hemphill and Gaston, Hamilton & Gaston, all of Chester, for respondent.

BLEASE J.

This is an action for punitive damages, growing out of injuries received by the respondent in a collision of an automobile in which the respondent was riding, and a train of the defendant at a grade crossing in Chester county. In the trial before his honor, Judge John S. Wilson, the jury rendered a verdict in favor of the respondent for both actual and punitive damages. Defendant has appealed to this court on 27 exceptions.

The fourth defense of the answer of the defendant contained the following allegations:

"(1) That on or about March --, 1926, the plaintiff agreed that if the defendant would pay in full all charges and expenses for doctors, medicine and hospital bills incurred and which should be incurred by or on behalf of the plaintiff in and for the treatment of the injuries sustained by him at the time of the collision referred to in the complaint, while a patient at the Chester Sanitorium, a hospital in the City of Chester, where plaintiff was and had been a patient since the date of his said injuries, he would fully and finally release and discharge the defendant from any and all further liability to him of any character whatsoever on account of the alleged claim for damages which is made the basis of his alleged cause of action herein; that in consideration of plaintiff's said covenant and agreement this defendant by way of compromise settlement of plaintiff's alleged claim, agreed and contracted to pay the charges and expenses for doctor's medical and hospital bills incurred, and which should be incurred, by and on behalf of the plaintiff at said Chester Sanitorium; and that pursuant thereto this defendant fully performed and executed said agreement on its part by assuming, by and with the consent of the Chester Sanitorium, the payment of the said charges and expenses to said Chester Sanitorium, thereby incurring, and relieving the plaintiff from, liability for the payment to said Chester Sanitorium of doctor's medical and hospital bills in the sum of $2,394.70.

"(2) That defendant pleads the foregoing executed agreement both in bar of the plaintiff's alleged cause of action herein and by way of equitable estoppel against the assertion on the part of the plaintiff of the claim set up in the complaint."

In support of the allegations of the answer set forth, the defendant offered some testimony. Under the view we take of the case, it is not necessary, or proper, to attempt to state that testimony, or the testimony introduced by the plaintiff to refute those allegations of the answer. To properly consider the appeal, it is only incumbent upon us to ascertain if there was any testimony favorable to the defendant on the issue made as to the defense set up by it.

Based upon the allegations of the answer referred to, and the testimony offered by the defendant in support thereof, the defendant requested the circuit judge to charge the jury as follows:

"If you find from the evidence that the plaintiff, after his injury, made an agreement to settle his alleged claim for injuries on certain conditions; and upon the assumption of certain liability by the defendant Company, and if you further find that the defendant company agreed to said conditions and actually performed its part of the same, in good faith, thereby changing its position for the worse, thereafter upon the performance by the defendant in good faith of such conditions of agreed settlement, the plaintiff could not repudiate and nullify the same. Therefore, if you should find from the evidence, that the plaintiff agreed to settle for payment of hospital and doctor bills, which settlement was accepted in good faith and agreed to by the defendant, if the defendant carried out its part by payment or by assumption of such obligations on strength of such agreement, and where the said obligation was not a legal obligation against it, then the plaintiff must be held to the contract agreed upon, and plaintiff cannot now repudiate the same.

"If you find from the evidence that the plaintiff and defendant made an agreement to settle, adjust and compromise their differences by reason of which the Railway Company agreed

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