Metcalf v. Mauldin Mfg. Co., Inc., No. 19992

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: LEWIS; MOSS
• Citation: 264 S.C. 196,213 S.E.2d 729
• Parties: Willard A. METCALF, Respondent, v. MAULDIN MANUFACTURING COMPANY, INC., Appellant.
• Decision Date: 11 April 1975
• Docket Number: No. 19992

Page 729

213 S.E.2d 729 264 S.C. 196 Willard A. METCALF, Respondent,
v.
MAULDIN MANUFACTURING COMPANY, INC., Appellant. No. 19992. Supreme Court of South Carolina. April 11, 1975.

Page 730

[264 S.C. 197] Wm. Byrd Traxler, Greenville, for appellant.

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

[264 S.C. 198] 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 [264 S.C. 199] 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

Page 731

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