Kitchens v. Melton

• Decision Date: 01 March 1916
• Docket Number: 9290.
• Citation: 87 S.E. 1006,103 S.C. 270
• Parties: KITCHENS v. MELTON ET AL.
• Court: South Carolina Supreme Court

87 S.E. 1006

103 S.C. 270

KITCHENS v. MELTON ET AL.

No. 9290.

Supreme Court of South Carolina

March 1, 1916

Appeal from Common Pleas Circuit Court of Cherokee County; Mendel L Smith, Judge.

Action by M. Lou Kitchens, as administratrix, against G. S. Melton and the Gaffney Manufacturing Company. From a judgment for defendants, plaintiff appeals. Affirmed.

Dobson & Vassy, of Gaffney, for appellant.

Bomar & Osborne and Nicholls & Nicholls, all of Spartanburg, for respondents.

WATTS J.

This was an action by the plaintiff against the defendants for damages for the alleged negligence of defendants in causing the death of her intestate on February 22, 1912. The cause was heard by Judge Smith and a jury at the spring term of court, 1915, for Cherokee county, and resulted in a verdict for the defendants. A motion for a new trial was made by the plaintiff which was refused. After entry of judgment plaintiff appeals, and by seven exceptions impute error on the part of his honor. At the hearing of the case plaintiff's counsel abandoned the fifth exception.

The exceptions are subdivided and impute error to his honor in excluding certain testimony offered by the plaintiff against the Gaffney Manufacturing Company, and in instructing the jury to disregard it in so far as it affected the Gaffney Manufacturing Company. The evidence shows that the plaintiff's intestate died as a result of the bursting of a large steam pipe in the plant of the defendant company a few minutes after 6 o'clock on the morning of February 22, 1912. This is an admitted fact in the case. It is in evidence that the deceased was buried on February 24th, two days after his death. Mrs. Kitchens and Lidie Kitchens testified that, one night while he lay a corpse, the defendant Melton was at her house, and in substance said that he was sorry for the accident, "and that if it would have held up a few days longer it would not have occurred, because he had a piece ordered to fill the place, and he would have had it in a few days, and that it was delayed. He had a bill of it, but it was delayed on the road by some purpose." It was insisted by plaintiff's counsel that this was competent evidence against both defendants as showing knowledge by the company of the alleged defective condition of the pipe. His honor held it incompetent as against the company, and so instructed the jury.

Was his honor in error in so holding? It could not have been admitted as a part of the res gestæ. The time and circumstances do not bring it within that doctrine. The admitted fact is that the deceased died about 6 o'clock on the morning of February 22, 1912, and was buried February 24th, and one night while he was a corpse Melton called, and while there made the alleged statement. As far as the record goes, he called of his own volition, and not as a representative of the company and in no way...