Long v. Carolina Baking Co
| Decision Date | 16 December 1939 |
| Docket Number | No. 14988.,14988. |
| Citation | 193 S.C. 225,8 S.E.2d 326 |
| Parties | LONG . v. CAROLINA BAKING CO. et al. |
| Court | South Carolina Supreme Court |
LONG .
v.
CAROLINA BAKING CO. et al.
No. 14988.
Supreme Court of South Carolina.
Dec. 16, 1939.
[8 S.E.2d 327]
BAKER and CARTER, JJ., dissenting in part.
Appeal from Common Pleas Circuit Court of Greenville County; M. M. Mann, Judge.
Action by Joe Long, as administrator of the estate of Tom Long, against the Carolina Baking Company, a corporation, and another, for death of intestate resulting from an automobile collision. From a judgment for the plaintiff, defendants appeal.
Affirmed.
Hicks & Johnston, of Greenville, for appellants.
Price & Poag and W. A. Bull, all of Greenville, for respondent.
BONHAM, Justice.
This case has been before the Court heretofore (No. 1753) in which an opinion was filed July 8, 1939. The defendants, who were appellants, filed a petition for rehearing, which was granted, and rehearing had at the October, 1939, Term of this Court.
The opinion filed July 8, 1939, is hereby withdrawn and this opinion is filed instead thereof.
The action is brought by Joe Long, as Administrator of the estate of Tom Long, deceased. It appears from the allegations of the complaint that Tom Long died from injuries received in a collision between the automobile which he was driving and a truck, alleged to be the property of Carolina Baking Company, driven by Haskell Kilgore, a resident of Greenville County, S. C.; that the collision occurred at a point in North Carolina on the highway leading from Greenville, S. C, to Hendersonville, N. C.; that defendant's truck was being operated on the wrong side, the left hand side, of the highway, and without having it under control, contrary to and in violation of the laws of the State of North Carolina.
For answer, the defendants interposed a general denial; and that the Carolina Baking Company had transferred all of its assets to the Columbia Baking Company, had been dissolved and was not then, or at the time of the collision, in business. They admit that there was a collision between the Long automobile and the truck, but deny that they were responsible for it. Further answering, they allege that Mr. and Mrs. Joe Long and Tom Long were engaged in a joint enterprise, and the accident was caused by their negligence in the particulars set forth in the answer.
The case was first heard by Judge Mann, with a jury, at the October, 1938, Term of
[8 S.E.2d 328]the Court of Common Pleas for Greenville County and again at the November term of that Court, and resulted in a verdict for the plaintiff in the sum of $10,000.00 actual damages. This appeal followed.
The appellants base their appeal upon 16 exceptions, which will be hereinafter considered as they are grouped and presented by appellants.
November 15, 1938, before the trial which began November 21, 1938, defendants' attorneys served on plaintiff's attorneys a notice in the following form:
"Please Take Notice: That the defendants, not having raised the following objection by Demurrer or Answer, now file their Notice of Objection to the Complaint upon the ground that the complaint does not state facts sufficient to constitute a cause of action, because the complaint shows that it is based upon the laws of North Carolina, and such laws have not been alleged in the complaint, as required by the law of South Carolina."
After the reading of the pleadings, counsel for defendants addressed the Court thus:
"At this time we move to exclude the evidence in the case because there is no cause of action set up in the complaint, the complaint being apparently under some form of Lord Campbell's or death statute of North Carolina, which is not pleaded in the complaint * * *."
The Court:
"I will state substantially what my former ruling was in order that it may appear in the present case, having carefully examined the complaint, being of the opinion that the statute being referred to with sufficient definiteness as to put it before the Court, that the Statute under which this case is being tried is sufficiently pleaded and, therefore, the motion is overruled."
The language of the Court, to wit, "I will state substantially what my former ruling was", has reference to a former trial of this case before him, held at the October, 1938, term of the Court of Common Pleas for Greenville County.
Exceptions 1, 2, 3 and 4 raise the question whether the North Carolina law, which it is conceded must govern the case, is sufficiently pleaded. On this issue, it is true, there is considerable diversity of opinion and authority, and there is much to support the ruling of Judge Mann in this case. It may, however, be admitted that there is much, perhaps the weight, of authority to the effect that the better justice is to plead the foreign law, relied on, in full.
However, that issue has become an academic one in this appeal, for the reason that on the first trial of this case the same issue was presented to the Court, in an effort to exclude the evidence in the case because the complaint does not state facts sufficient to constitute a cause of action, because the complaint shows that it is based upon the laws of North Carolina and such laws have not been alleged in the complaint, and was overruled. That case resulted in a mistrial and there was no appeal from that.
Appellants contend that this ruling is not properly before this Court. We take the following from appellants' argument:
"From the entire record, there was no mention, either by respondent, the trial Judge, or anyone else, that the questions presented had been previously decided.
"2. Respondent's contention was never presented to nor passed upon by the trial Judge.
"3. The transcript was not prepared with such idea in mind. Therefore, it is wholly inadequate to enable the parties to present or argue this question.
"4. The transcript does not show what questions were presented upon the first trial, in what manner they were presented, nor how they were disposed of.
"5. There was no motion to sustain the verdict or judgment on this ground included in the transcript.
"6. Respondent did not so much as hint at this contention in their printed argument.
"7. The first suggestion regarding the point came after appellant's oral argument in this Court when some typewritten notes were argued and presented.
"8. It is absolutely impossible, with the record in its present shape, for appellant or respondent to present this point to the Court to pass upon it."
We do not think the objection is well founded. There is ample and plain reference in the record to explain and make plain what occurred in the first trial.
The transcript of record in the present appeal was prepared by attorneys of the appellants. In it, page 2, occurs the following:
[8 S.E.2d 329]"Upon call of the case, but before drawing the jury, appellants moved to amend the pleadings by striking all reference to punitive damages or anything in support thereof, because at the last trial the plaintiff abandoned that claim and asked that it not be submitted to the jury.
"(Note: In explanation of the reference just made to the 'last trial': This case was first tried beginning October 17th, 1938, before Judge Mann and a jury.) The result was a mistrial. * * *."
Can appellants successfully contend that there is no such reference to that trial and what occurred there as will deny to respondent any reference thereto?
When the appellants made their objection at the last trial, now under review by us, Judge Mann made the following ruling:
"I will state substantially what my former ruling was in order that it may appear in the present case, having carefully examined the complaint, being of the opinion that the statute being referred to with sufficient definiteness as to put it before the Court, that the Statute under which this case is being tried is sufficiently pleaded and, therefore, the motion is overruled."
The Court said:
"I will state substantially what my former ruling was in order that it may appear in the present case." (Italics added)
Can there be any doubt that the reference to "my former ruling" was to the ruling made by the Court in the first trial on this very issue? We do not think so.
Plaintiff offered in evidence certain documents relating to the Carolina Baking Company, to which defendants objected. The following appears in the transcript of record on page 78, folio 311:
"The Court admitted them with reference to the legal questions involved, for the Court's information only and said that the remarks at this time may not be as full as they were at the first trial of this case; therefore, the Court would give either counsel the privilege of referring at any time they see fit, if it become necessary to the more amplified remarks made by the Court at the other trial." (Italics ours.)
When the plaintiff offered in evidence certain sections of the North Carolina Code and certain decisions of the Supreme Court of North Carolina, to the introduction of which defendants objected as irrelevant, incompetent and immaterial, the Court said:
"Yes, sir, and I merely adhere to my former ruling with respect to those, overrule the Motions and admit them in the testimony." Folios 318-319.
On the motion for nonsuit, one of the grounds was as follows:
"5th. That the pleadings show that the plaintiff is suing under some form of North Carolina Action, possibly the Lord Campbell's Act; that he has not pleaded the North Carolina statutory law, Court decisions or common law, and those not having been pleaded cannot be proven, and, therefore, sustains our objection to the complaint as filed with the plaintiff before trial, the complaint contains no cause of action and there is no matter to be sent to the jury."
After argument, the Court said:
"Well as I remember, in substance, I held—
"Fourth, with respect to the sufficiency of the statute and North Carolina Laws, I hold that that was sufficiently pleaded in the complaint, and that if the defendant had wished to be further notified and have the plaintiff circumscribe within certain...
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