Landreth v. Atlantic Refining Co.

• Decision Date: 10 October 1935
• Docket Number: 14146.
• Citation: 181 S.E. 727,177 S.C. 490
• Parties: LANDRETH v. ATLANTIC REFINING CO. et al.
• Court: South Carolina Supreme Court

181 S.E. 727

177 S.C. 490

LANDRETH v. ATLANTIC REFINING CO. et al.

No. 14146.

Supreme Court of South Carolina

October 10, 1935

Appeal from Common Pleas Circuit Court of Greenville County; G Dewey Oxner, Judge.

Action by W. R. Landreth against the Atlantic Refining Company and others. Judgment for plaintiff against the named defendant which appeals.

Affirmed.

BONHAM J., dissenting.

Morgan & Cothran, of Greenville, for appellant.

W. E Bowen and J. G. Leatherwood, both of Greenville, for respondent.

CARTER Justice.

This suit by W. R. Landreth, as plaintiff, against the defendants, the Atlantic Refining Company, city of Greenville, and J. H. Roe, was commenced in the court of common pleas for Greenville county, April 29, 1933, for recovery of damages against the defendants in the sum of $7,500, for personal injuries alleged to have been caused by certain acts and delicts of the defendants in the said county of Greenville. The city of Greenville demurred to the complaint on the ground, among others, that the place of the alleged injury was outside the city limits of the city of Greenville, and that, therefore, said defendant city of Greenville was not liable. The said demurrer was sustained and an order to that effect, consented to by counsel for the plaintiff, was issued by the court. Answers were filed in the cause by the other defendants, each filing a separate answer, containing a general denial. Issues being joined as to these defendants, the case was tried in the said court May 23, 1934, before his honor, Judge G. Dewey Oxner, and a jury. At the conclusion of the plaintiff's testimony, a motion was made by these defendants for a nonsuit. The plaintiff did not oppose the motion made by the defendant J. H. Roe, and a nonsuit was ordered as to that defendant. The motion was refused as to the other defendant, Atlantic Refining Company, and thereafter the Atlantic Refining Company introduced testimony and at the conclusion of all the testimony the Atlantic Refining Company made a motion for a directed verdict, which motion was refused, and the case was submitted to the jury. The jury returned a verdict against the Atlantic Refining Company for the sum of $3,750 actual damages. A motion for a new trial being made by this defendant, a new trial nisi was granted, providing that if the plaintiff would remit the sum of $1,000 upon the judgment, a new trial would be refused. The plaintiff remitted the said sum of $1,000 and judgment was, therefore, entered against the Atlantic Refining Company in the sum of $2,750.

From the judgment entered on the verdict, the defendant Atlantic Refining Company has appealed to this court, upon exceptions which will be considered.

It is the contention of the appellant that the trial judge erred in refusing to grant the motion for a nonsuit, the motion for a directed verdict, and in ordering excessive printing of the record.

For the purpose of better understanding the position of the parties to the action, we quote the following from the allegations of the complaint:

"II. That prior to April 22, 1933, the defendant, City of Greenville, had placed on the sidewalk or public way running along Douglas Avenue, a water meter protector or shield, which stood about an inch and one-half above the surface of the said sidewalk; that Douglas Avenue leads from the Buncombe Road to the Cedar Lane Road toward Monaghan Mill, in the County and State aforesaid; that prior to said date, the defendant, J. H. Roe, the owner of the lot, store building and filling station situate between the junction of the said Douglas Avenue and the said Buncombe Road, had permitted and allowed the defendant, The Atlantic Refining Company, to place on said sidewalk an iron pipe used by the defendant, The Atlantic Refining Company, to transfer gasoline from the gasoline trucks to the underground tanks of said filling station, operated by or for the defendant, J. H. Roe; that said pipe stood about ten or twelve inches above the ground; that the said City of Greenville owns and operates a water system by which numerous and sundry persons and corporations are furnished water by said City for private gain, as distinguished from its municipal or governmental functions, outside the corporate limits of the City of Greenville, and that said water meter was a part of said water system.

III. That on said date, to-wit, April 22, 1933, plaintiff was walking along the sidewalk on said Douglas Avenue, struck his foot against the said water meter and was hurled to the ground, striking his head against the said iron pipe, the blow rendering him unconscious, cutting his face and head and giving to him serious, permanent, and painful injuries; that as a result of said injuries plaintiff's earning capacity has been permanently impaired, that said earning capacity was his only capital, constituted his private property, and that the acts and delicts of the defendants, combining and concurring with each other, resulted in the taking of private property by said defendants contrary to the State and Federal Constitutions.

IV. That plaintiff's damage and injuries were the direct and proximate result of the willfulness, wantonness, carelessness and negligence of the defendants in the following particulars: (a) In the placing, by the said City of Greenville, of the said water meter protector or shield above the surface of the sidewalk, a much traveled public way; (b) in placing and permitting to be placed by the defendants, The Atlantic Refining Company, a corporation, and J. H. Roe, of the said iron pipe on said sidewalk; and (c) in allowing, causing and permitting said premises and sidewalk to be and remain in a condition dangerous to pedestrians and the traveling public, who for a long period of time had been accustomed to use said sidewalk or public way."

"V. That said acts of the defendant, City of Greenville, combining and concurring with the said acts and delicts of its co-defendants, The Atlantic Refining Co. and J. H. Roe, were the direct and proximate cause of plaintiff's injuries and damage, as above alleged, resulting in his being forced to suffer great physical pain and mental anguish, and constituting the taking of private property, as above alleged, in the sum of Seventy-Five Hundred ($7,500.00) Dollars."

The appellant's motion for a nonsuit was based upon the following grounds:

"1st. There is no evidence of negligence as being the proximate cause of the injury which can be attributed to either of the present defendants.

2nd. That the fall of the plaintiff, if any, was due to his own negligence and want of care.

3rd. The pipe upon which the plaintiff states that he fell was in no sense the cause of his fall.

4th. There is no evidence of any negligence in the placing of the pipe or in its construction."

As stated, at the close of all of the testimony the appellant made a motion for a directed verdict. This motion was based upon the same grounds as the motion for a nonsuit and upon the additional ground "that this being a suit for a joint tort and the City of Greenville and J. H. Roe, two of the alleged joint tort feasors, having been dismissed, there could be no recovery against the Atlantic Refining Company as a participant in a joint tort."

The allegations of error set forth in the exceptions, imputed to the trial judge, are an amplication of the grounds upon which the motion for a nonsuit and the motion for direction of a verdict were based, reading as follows, which will be considered together:

"I. Because his Honor erred in refusing the motion of the appellant for a non-suit upon the first ground urged, to the effect that there was no evidence of negligence on the part of the appellant to go to the jury as being the proximate cause of the injury;

The error being that any negligence of any of the parties which was the proximate cause of the fall of the plaintiff was the negligence of the City in regard to the exposed meter box over which the plaintiff stumbled. That the pipe which belonged to the appellant was not the proximate cause of the plaintiff's fall.

II. Because his Honor erred in not sustaining the second ground of the motion for non-suit, to the effect that the fall of the plaintiff, if any, was due to his own negligence and want of care;

The error being that the testimony shows the utterly careless manner in which the plaintiff was walking and that such negligence was the sole cause of his fall.

III. Because his Honor erred in not sustaining the third ground of the motion for non-suit, to the effect that the pipe upon which plaintiff states that he fell was in no sense the proximate cause of his fall;

The error being that the fall of the plaintiff was due to the meter box and not to the pipe alleged to be owned by the appellant.

IV. Because his Honor erred in not sustaining the fourth ground of the motion for non-suit, to the effect that there is no evidence of any negligence in the placing of the pipe or in its construction;

The error being that the proof fails to show any facts tending to show such negligence and without such proof there was nothing to go to the jury on this ground.

V. Because his Honor erred in refusing to direct a verdict in favor of the appellant upon the close of all the testimony upon the grounds alleged in the motion for a non-suit and upon the further ground that this being a suit for a joint tort and two of the alleged joint tort feasors having been dismissed, there can be no recovery against the remaining defendant as a participant in a joint tort, the dismissal of the other two defendants being with the consent of the plaintiff's attorneys;

The error being that a joint tort having been alleged in the Complaint with the City of Greenville as the...