Miller v. Atlantic Coast Line R. Co.
| Decision Date | 29 September 1913 |
| Citation | 79 S.E. 645,95 S.C. 471 |
| Parties | MILLER v. ATLANTIC COAST LINE R. CO. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Sumter County; Hayne F Rice, Judge.
Action by J. A. Miller against the Atlantic Coast Line Railroad Company. Judgment for plaintiff, and defendant appeals. Dismissed.
P. A Willcox, of Florence, and Purdy & Bland, Mark Reynolds, and L. W. McLemore, all of Sumter, for appellant. Best & Cunningham, of Columbia, and L. D. Jennings and John H Clifton, both of Sumter, for respondent.
This is the third appeal in this case. The action was begun in September, 1910, to recover damages for personal injuries sustained by plaintiff on October 18, 1909, while in defendant's service as a locomotive engineer. The first trial was had at the November term, 1910, of the circuit court for Sumter, and resulted in a judgment for defendant by direction of the court. The opinion of this court reversing that judgment was handed down on December 21, 1911. 90 S.C 249, 73 S.E. 71. The second trial was had at the March term, 1912, and plaintiff obtained a verdict and judgment for $35,000, which was affirmed by this court in an opinion filed April 30, 1913. 94 S.C. 388, 77 S.E. 1111. While the last appeal was pending in this court, the defendant moved the circuit court, at the March term, 1913, for a new trial, on the ground of after-discovered evidence. The court refused the motion in a short order, without assigning any reasons therefor. This appeal is from that order.
After the return had been filed in this court, plaintiff moved to dismiss the appeal on the grounds that the order is not appealable: (1) Because the refusal of the motion was discretionary; and (2) because the appeal was taken merely for delay. While it is true that motions for new trials are addressed to the discretion of the court, yet the discretion is not absolute or arbitrary, but judicial. Its exercise must, therefore, be predicated upon legal grounds. And, while this court will not substitute its discretion for that of the circuit court, it will correct any manifest error in the exercise of the discretion vested in that court.
An order granting or refusing a new trial is expressly made appealable in section 11 (d), subd. 2, of the Code of Procedure. But the right of appeal must necessarily be limited to such orders as this court has jurisdiction to review.
We have held in cases too numerous to mention that, under the constitutional limitation of the power of this court to the correction of errors of law, in law cases, such as this is, we have no jurisdiction to review orders granting or refusing new trials, when they are based upon or involve the decision of questions of fact, unless it appears that the finding is wholly unsupported by evidence, or the conclusion reached was influenced or controlled by some error of law.
The order of the circuit court in this case does not disclose the grounds upon which it was decided. We have no way of ascertaining, therefore, whether it was based solely upon findings of fact, or whether any error of law influenced or controlled the decision. However, it must be presumed to be correct, and therefore, if the record presents any grounds upon which the motion could have been properly refused, we must assume that the court rested its decision upon those grounds. Stanford v. Cudd, 93 S.C. 367, 76 S.E. 986. And, if those grounds necessarily involve the decision of disputed questions of fact, it follows that we are without power to review the order.
It becomes necessary, therefore, to state briefly the facts and circumstances upon which the motion was decided. On both trials in the circuit court the plaintiff's physical condition and the cause of it were contested issues of fact upon which a great deal of expert medical testimony was taken. Plaintiff's testimony tended to prove that his nervous system was seriously and permanently impaired as the result of his injury. Defendant's testimony tended to show that his condition was not so serious as he contended; but, if it was, that it was due to constitutional causes, and not to his injury. After the second trial, defendant employed two men, named Stender and Primrose, to watch plaintiff's movements to see whether they were compatible with the existence of the condition of himself which he and his witnesses had testified to. These men had plaintiff under observation from December 29, 1912, until a short time before the hearing of the motion for a new trial, some time in March, 1913. They testified that during that time he walked normally and naturally, and went about the streets as other men; that on several occasions he got on and off street cars while in motion, with the apparent agility of the ordinary man. Some of the medical experts who had testified for the defendant at the trial testified on this motion that, after careful review and consideration of all the evidence introduced at the...
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