Mickle v. Blackmon, 19120
| Citation | 177 S.E.2d 548,255 S.C. 136 |
| Decision Date | 05 November 1970 |
| Docket Number | No. 19120,19120 |
| Court | United States State Supreme Court of South Carolina |
| Parties | Janet MICKLE, Appellant, v. Larry Wayne BLACKMON, Cherokee, Incorporated, and Ford Motor Company, of whichFord Motor Company is, Respondent. |
James P. Mozingo, III, D. Kenneth Baker, Greer & Chandler, Darlington, Hayes, Brunson & Gatlin, Rock Hill, for appellant.
Vernon E. Sumalt, Rock Hill, Howard L. Burns, Greenwood, for respondent.
In this personal injury action, the plaintiff was awarded $468,000.00 actual damages against the defendant Cherokee, Incorporated, and $312,000.00 actual damages against the defendant Ford Motor Company. Judgment was entered on the verdict against Cherokee, but the trial judge granted Ford's motion for judgment Non obstante veredicto. On appeal to this court, the judgment against Cherokee was affirmed, and the Non obstante veredicto judgment in favor of Ford was reversed. However, because of error in the instructions as to Ford's duty in the design of the automobile we sustained Ford's alternative appeal and remanded the case to the circuit court for a retrial of the issues between plaintiff and this defendant. See Mickle v. Blackmon, 252 S.C. 202, 166 S.E.2d 173 (1969). Petitions for rehearing by Cherokee and Ford were denied, and the remittitur issued on March 5, 1969. On July 21, 1969, plaintiff moved in the circuit court for 'partial summary judgment in favor of the plaintiff upon the issue of the amount of damages to which plaintiff is entitled from the defendant Ford Motor Company if that defendant is found liable upon the retrial of this matter, and further declaring that the new trial granted the defendant Ford Motor Company will be limited to the issue of the defendant's liability for payment of the verdict and judgment of Three Hundred and Twelve Thousand and No/100 ($312,000.00) Dollars heretofore awarded the plaintiff against the defendant.' This motion was refused by the circuit court upon the ground that 'the general remand of this case by the Supreme Court of South Carolina, * * * mandates otherwise,' and plaintiff has appealed.
Although plaintiff styled her motion as one for 'Partial Summary Judgment,' it was, in substance and effect, a motion to limit the trial to the issue of liability alone, without a retrial on the issue of the amount of damages to be awarded should liability be established.
On the former appeal, we found that prejudicial error in the instructions required a new trial as to Ford and remanded the case for that purpose. The effect of this mandate was to set aside the verdict In toto and require a retrial of all issues. If this exceeded the relief to which Ford was entitled, plaintiff's remedy was by petition to this court before the remittitur went down. We now have no jurisdiction of the issues involved on that appeal. Ex parte Dunovant, 16 S.C. 299 (1881); Carpenter v. Lewis, 65 S.C. 400, 43 S.E. 881 (1903). The mandate settling those issues bound the circuit court in passing upon plaintiff's motion and binds us on this appeal from that court's order. On this aspect of the case, the only question is whether the circuit court properly construed the mandate, which is, in effect, conceded. Therefore, this appeal is not an appropriate occasion for us to reexamine, as plaintiff has requested, our decision in South Carolina Elec. & Gas Co. v. Aetna Insurance Co., 233 S.C. 557, 106 S.E.2d 276 (1958), holding that a new trial of the issue of damages only, after a verdict has been set aside for excessiveness, is not countenanced by our practice.
Resourceful counsel for plaintiff argue that the motion for partial summary judgment should have been allowed under Rule 44 of the Circuit Court, effective June 1, 1969, which provides for summary judgment, in whole or in part, when it is made to appear to the court that there is no...
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...written motion as a Rule 59(e) motion even though it was erroneously captioned as a motion for new trial. See Mickle v. Blackmon, 255 S.C. 136, 140, 177 S.E.2d 548, 549 (1970) (treating motion based on its substance and effect as opposed to how it was captioned by party); Richland County v.......
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Williams v. Condon
...only, we must treat it as such for purposes of this appeal regardless of the titular reference to Rule 59. See Mickle v. Blackmon, 255 S.C. 136, 140, 177 S.E.2d 548, 549 (1970) (treating motion based on its "substance and effect" as opposed to how it was styled by plaintiff); Standard Fed. ......
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McCleary v. Smith
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