Metcalf v. Mauldin Mfg. Co., Inc.

Citation264 S.C. 196,213 S.E.2d 729
Decision Date11 April 1975
Docket NumberNo. 19992,19992
CourtUnited States State Supreme Court of South Carolina
PartiesWillard A. METCALF, Respondent, v. MAULDIN MANUFACTURING COMPANY, INC., Appellant.

Wm. Byrd Traxler, Greenville, for appellant.

Leatherwood, Walker, Todd & Mann, Greenville, for respondent.

LEWIS, Justice:

Appellant was engaged in the manufacture of asphalt rollers and spreaders (pavers) and respondent was employed by the company as a salesman on a commission basis. Respondent's employment was terminated in August 1973 and this action was subsequently brought by him to recover alleged earned and unpaid commissions. The trial resulted in a judgment for respondent in the amount of $10,375.00, from which this appeal is prosecuted.

Appellant contends that the lower court erred (1) in refusing its motion for an order or reference, (2) in refusing respondent's motion for a voluntary nonsuit, (3) in refusing its motions for a nonsuit and directed verdict, (4) in holding that respondent was entitled to recover, and (5) in several rulings on the admissibility of evidence. We find no reversible error and the judgment is affirmed.

This action was brought to recover on the basis of the alleged conversion of commissions due to respondent. However, a pretrial conference was held at which the trial judge concluded that the action was more properly construed to be one for breach of contract and the case was tried on that theory. All question as to punitive damages was subsequently eliminated from the case.

After the pretrial conference, appellant moved, under Code Section 10--1402, for an order referring the issues to the master, taking the position that the proof would require a long, complicated, and detailed accounting in order to determine the commissions due and, for that reason, the issues could best be determined under a reference. The trial judge reserved a decision on the motion for an order of reference, impanelled a jury, and proceeded to a trial, reserving the right to withdraw the issue from the jury if the court subsequently deemed it proper.

During the trial, respondent moved for a Voluntary nonsuit, which was denied. Respondent has not appealed from the denial of his motion; but appellant contends, as one of its grounds for appeal, that the court was in error in refusing to grant respondent's request for a voluntary nonsuit. Appellant has no standing to complain of the failure to grant respondent's motion; and the assertion of error in this regard is completely without merit.

At the conclusion of all of the testimony, the trial judge refused appellant's motion for a directed verdict. Instead, the court found that respondent had established his right to recover from the appellant and withdrew that issue from the jury. Only the issue as to the amount of the commissions due to respondent by appellant was then submitted to the jury, sitting in an advisory capacity, which resulted in a verdict for respondent in the mount of $10,375.00. Thereafter, the trial judge entered an order for judgment in the same amount as the jury verdict, stating, in doing so:

'While I am persuaded that this should have been a non-jury trial and I, therefore, consider the jury verdict to be advisory only, if I was in error in withdrawing the case from the jury, there is no prejudice since my conclusion is the same as that reached by the jury. In fact, the defendant (appellant) did not present any credible evidence in opposition to the plaintiff's position and, had this been a case at law, I would have directed a verdict in favor of the plaintiff (respondent).'

The contention that appellant's motion for an order of reference was denied because the issues were not referred to the master is without merit. The motion for an order of reference was, first, an assertion by appellant that it was entitled to a non-jury trial of the issues. With this contention, the trial judge finally agreed. The motion was, secondly, that the issues be referred. This latter phase of the motion was addressed to the discretion of the court. The rule was recognized in Momeier v. John McAlister, Inc., 190 S.C. 529, 3 S.E.2d 606, quoting from 21 C.J. 605, 606, that, 'where the subject is one proper for reference it is generally within the power of the Court in its discretion either to refer the cause, even without consent of the parties, or to...

To continue reading

Request your trial
3 cases
  • Manning v. Engelkes
    • United States
    • United States State Supreme Court of Iowa
    • 27 Junio 1979
    ...... he had previously presided over a separate trial of a co-defendant;.         2. Whether the court should ... But see Metcalf v. . Page 10. Mauldin Manufacturing Co., 264 S.C. 196, 213 ...Sykes, 364 So.2d 1293 (La.1978); Food Fair Stores, Inc. v. Jay, 283 Md. 205, 389 A.2d 874 (1978); State v. Hoopes, ......
  • Neal v. Darby, 0207
    • United States
    • Court of Appeals of South Carolina
    • 22 Junio 1984
    ......277. Walter NEAL and Industrial Chemical Company, Inc., Appellants,. v. J. Simpson DARBY, L.H. Schwieterman, John ... for enlightenment of trial judge's conscience); Metcalf v. Mauldin Manufacturing Company, Inc., 264 S.C. 196, 213 ...Ambler Realty Co......
  • Potomac Leasing Co. v. Bone
    • United States
    • Court of Appeals of South Carolina
    • 25 Enero 1988
    ...is the responsibility of the opposing party to establish prejudice by affidavit or other means."); cf. Metcalf v. Mauldin Manufacturing Co., 264 S.C. 196, 213 S.E.2d 729 (1975) (case under former statute, S.C.Code Ann. § 15-13-920 (Law. Co-op 1976), holding the grant of a motion to amend ma......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT