Limehouse v. Southern Ry. Co.

• Decision Date: 14 March 1950
• Docket Number: 16328.
• Parties: LIMEHOUSE v. SOUTHERN RY. CO. et al. (two cases).
• Court: South Carolina Supreme Court

58 S.E.2d 685

216 S.C. 424

LIMEHOUSE v. SOUTHERN RY. CO. et al. (two cases).

No. 16328.

Supreme Court of South Carolina.

March 14, 1950

Moss & Moss, Orangeburg, Frank G. Tompkins, Jr. Columbia, for appellants.

C. W Limehouse, Orangeburg, Hydrick & Hydrick, Orangeburg, for respondents.

OXNER, Justice.

These actions were brought by two minors of tender years for the recovery of damages on account of personal injuries sustained when an automobile driven by their mother was struck by a passenger train of the Southern Railway Company at a public crossing in the City of Orangeburg. The trial resulted in a verdict in each case against the railroad company and the engineer for punitive damages in the sum of $1500.00.

The first question to be determined is whether the Court below erred in refusing a motion of appellants for a directed verdict made at the conclusion of the testimony.

There was some evidence tending to show a failure to give the crossing signals required by Section 8355 of the Code. Such neglect if found to exist, constituted negligence per se and under the construction which this Court has placed upon Section 8377, a disputable presumption arose that this omission was the proximate cause of the plaintiffs' injuries. The railway company may avoid liability under Section 8377 if 'it is shown that in addition to a mere want of ordinary care, the person injured, or the person having charge of his person or property, was at the time of the collision guilty of gross or wilful negligence, or was acting in violation of the law, and that such gross wilful negligence or unlawful act contributed to the injury.' Without undertaking to review the evidence, it clearly appears that the mother of these children, in the operation of the automobile in which they were riding, was guilty of negligence which was so gross as to assume the nature of wantonness. Plaintiffs were, therefore, not entitled to have their cases submitted to the jury under the crossing statute.

Plaintiffs allege in their complaint, however, not only the failure to give the statutory signals, but several acts of common law negligence. There was abundant evidence to the effect that the train was being operated at an excessive rate of speed and at a speed in excess of the maximum prescribed by an ordinance of the City of Orangeburg. There was also some testimony tending to show that the crossing was not properly flagged on the occasion in question. The foregoing was sufficient to warrant submission of the case to the jury. As to the cause of action at common law, the contributory negligence or gross negligence of the mother would be no defense. Of course, the children, both of whom were under seven years of age, were incapable of personal negligence. It it well settled that in an action by a child for personal injuries, the contributory negligence of a parent or custodian is no defense. In discussing the question in Watson, Administrator, v. Southern Railway, 66 S.C. 47, 44 S.E. 375, 376, the Court said: 'To impute contributory negligence to such a child would be to make him a tort feasor by imputation, when he could not be such in fact. It would be visiting the innocent with the faults of the guilty. It would permit the child's protector to be authorized to destroy it. It would place the personal rights of the child at the mercy of any one by whose fault it is injured, provided the guilty one happens to have the co-operation of the child's custodian in the work of injury. Such a doctrine is an anomaly in the law.'

The next question relates to the form of the verdict. The jury awarded only punitive damages. It is undisputed that these children sustained personal injuries as a result of the collision, although not of a serious of permanent nature. The attending physician testified that the little boy had a laceration on his forehead about an inch and a half long which required several stitches and left a small scar, and that there was 'considerable swelling of his forehead and eyes.' He remained in the hospital several days. The little girl sustained a bruise on the top of her head.

Implicit in the verdict of the jury is a finding that appellants were guilty of wilfulness or wantonness which was a proximate cause of the collision. It being undisputed that the minors sustained some injuries, they must be held to have established their right to compensatory damages. A verdict for punitive damages alone under these circumstances is inconsistent and illogical.

'According to the weight of authority, exemplary damages or punitive damages are not recoverable in the absence of proof of actual damages.' 15 Am.Jur., Damages, Section 270. In those jurisdictions adopting this view, there is considerable difference of opinion as to whether after actual damages are shown, it is essential that the money extent thereof be found in order to sustain a finding of punitive damages.

The cases in this State were reviewed in Cook v. A. C. L. Railway Co., 183 S.C. 279, 190 S.E. 923, 924. After observing that there was much confusion in our decisions, the Court held that 'where the actual damages sought are for traumatic injury, or injury to property, then in order to sustain a verdict for punitive damages, there must be actual damages capable of being measured in terms of dollars and cents--actual damages in some amount must be found independent of punitive damages.' The Court said: 'If the injured party has no cause of action independent of a supposed right to recover exemplary damages, then he has no cause of action at all; consequently, there must be allegations of actual or nominal damages in the pleadings and a proof thereof in a trial of the cause in order to support a verdict for punitive damages alone.' That case involved an action against a railroad for the recovery of actual and punitive damages for alleged personal injuries received when plaintiff leaped from an automobile in order to avoid being killed or seriously injured at a railroad crossing. The jury returned a verdict in favor of the plaintiff for $200.00 punitive damages. The Court concluded that the verdict absolved the railroad company of having inflicted actual damages and under these circumstances there was no legal liability upon which to predicate a verdict for punitive damages. The verdict of the jury was set aside and the case remanded for entry of judgment in favor of the railroad.

When the Cook case is considered in the light of the facts before the Court, we do not think it is decisive of the question before us for two reasons:

(1) There was an issue in the Cook case as to whether the plaintiff sustained any injury. It appears from the transcript of record in that case that when the verdict was returned, plaintiff's counsel, in seeking to explain the verdict, said the jury probably concluded that plaintiff 'was not injured, and they didn't give him anything for actual damages.' In the instant case, the undisputed evidence showed some injury and there is no reasonable explanation for the verdict of the jury.

(2) The agreed statement in the transcript of record in the Cook case discloses the following: 'Before the jury was discharged appellant's counsel called to the attention of the Court and of respondent's counsel the form of the verdict in the Cook case. Respondent's counsel announced that they were satisfied, whereupon counsel for the appellant made further motion for direction of verdict. This was overruled, the jury dismissed, and in the proper time notice of intention to appeal was served upon the respondent.' In the instant case, appellants' counsel did not expressly complain of the form of the verdict before the jury was discharged. The only action taken by them was to note a motion for judgment non obstante veredicto. The motion was marked 'heard' and the grounds were not stated until sometime later. Respondents' counsel might have reasonable concluded that this motion was directed to the grounds upon which appellants moved for a directed verdict at the close of the testimony.

It is well established that where a verdict is objectionable as to form, the party who desires to complain should call that fact to the Court's attention when the verdict is published. Otherwise, the right to do so is waived. Rhame v. City of Sumter, 113 S.C. 151, 101 S.E. 832; McAlister v. Thomas & Howard Co., 116 S.C. 319, 108 S.E. 94; Hussman Refrigerator & Supply Co. v. Cash & Carry Grocer, Inc., 134 S.C. 191, 132 S.E. 173. In McAlister v. Thomas & Howard Company, supra, the jury, in disregard of the Court's instructions, found a general verdict for $2500.00, without specifying whether this finding represented actual or punitive damages, or if both, the amount awarded for each. Defendant made a motion for a new trial on the ground that the verdict was not responsive to the Court's instructions. The motion was refused. In disposition of that feature of the appeal, this Court said: 'It was the duty of defendant's attorney to call attention to the form of the verdict, when it was published. By failing to do so, he waived the right to raise the question presented by this exception.' [116 S.C. 319, 108 S.E. 95.]

In Bethea v Western Union Telegraph Co., 97 S.C. 385, 81 S.E. 675, 676, which was an action to recover actual and punitive damages for delay in the delivery of a telegram informing plaintiff of the serious illness of his brother, the jury returned a verdict for punitive damages only in the sum of $250.00. Defendant made a motion for a new trial on the ground that the verdict showed that no actual damages had been sustained. The motion was overruled by the trial Judge. On appeal to this Court, the judgment was sustained upon two grounds: (1) That the verdict contained an implied finding of actual...