Montgomery v. Seabd. Air Line Ry

• Citation: 53 S.E. 987,73 s. c. 503
• Parties: MONTGOMERY. v. SEABOARD AIR LINE RY.
• Decision Date: 16 March 1906
• Court: United States State Supreme Court of South Carolina

53 S.E. 987

73 s. c. 503

MONTGOMERY.

v.SEABOARD AIR LINE RY.

Supreme Court of South Carolina.

March 16, 1906.

1. Corporations — Corporate Existence-General Denial.

Where a complaint alleges the corporate capacity of defendant, a general denial does not put in issue such capacity.

[Ed. Note.—For cases in Doint, see vol. 12, Cent. Dig. Corporations, § 2074.]

2. Evidence—Certified Copies.

Where there has been no notice to produce the original charter of a railroad company, a certified copy of the record of the Secretary of State's office of a charter of a company formed by consolidation of original railroad companies is inadmissible; there being no provision of law requiring such charter to be recorded.

3. Damages—Evidence—Earning Capacity.

In an action to recover for personal injuries evidence of plaintiff's earning capacity at the time of the accident may be shown by evidence of an offer of wages made at about that time.

[Ed. Note.—For cases in point, see vol. 15, Cent. Dig. Damages, § 490.]

4. Master and Servant—Injuries to Servant—Assumption of Risk.

Assumption of risk by employe must be pleaded to be available.

[Ed. Note.—For cases in point, see vol. 24, Cent. Dig. Master and Servant, § 868.]

5 Appeal—Review—Constitutional Questions.

Where, in an action for personal injuries, the defense of assumption of risk is not pleaded and the question does not fairly arise on the record the Supreme Court will not consider whether Const. 1895, art. 9, § 15, relating to assumption of risk by railroad employes is violative of the fourteenth amendment of the United States Constitution.

6. Trial—Instructions.

An instruction that preponderance of evidence is that which carries conviction with it, depends on the character of the witness, his intelligence, his opportunity for knowledge, and not necessarily on the number of witnesses, is not a charge on the facts.

[Ed. Note.—For cases in point, see vol. 46, Cent. Dig. Trial, § 455.]

7. Same—Charge on Facts.

An instruction in an action for personal injuries that if the jury find that plaintiff has suffered mental anguish in the view of the dark days to come to his wife and little child, such suffering cannot be considered, is not erroneous as a charge on the facts as intimating a belief that plaintiff's injuries are permanent.

Appeal from Common Pleas Circuit Court of Kershaw County; Prince, Judge.

Action by W. C. Montgomery against the Seaboard Air Line Railway. Judgment for plaintiff, and defendant appeals. Affirmed.

Stevenson & Matheson and Edward Mclver, for appellant.

Clarke & Von Tresckow, for respondent.

JONES, J. In this action plaintiff sued for damages for personal injuries and recovered judgment, from which defendant appeals on exceptions presenting the questions which we now consider.

1. The complaint alleged that the defendant Seaboard Air Line Railway is a corporation duly created and existing under the laws of this state. The defendant appeared and answered to the merits by a general denial. Plaintiff having closed his case, without offering any proof of the defendant's incorporation, a motion for nonsuit was made on that ground, and was refused on the ground that a general denial does not put in issue the corporate existence of the defendant. The first, second and eleventh exceptions challenge this ruling. The ruling was correct. A general denial does not put in issue the corporate capacity of a plaintiff suing a corporation. Commercial Insurance Co. v. Turner, 8 S. C. 107; Steamship Co. v. Rodgers, 21 S. C. 33; Plametto Lumber Co. v. Risley, 25 S. C. 309. For as great if not stronger reason, a general denial by a defendant sued as a corporation and answering to the merits as such, without specific denial of corporate capacity, must be regarded as a substantial admission of the character in which it was sued, and as not putting defendant's existence as a corporation in issue. Rembert v. Railway Co., 31 S. C. 313, 9 S. E. 968; 5 Ency. P1. & Pr. 79; 10 Cyc. 1347, 1354.

2. After refusal of the motion for nonsuit, the plaintiff, over defendant's objection, was allowed to introduce in evidence a copy of the charter of defendant company certified by the Secretary of State under the seal of the state. Appellant's third and fourth exceptionsquestion this ruling. The certified copy introduced purports to be a charter issued to a new corporation under the name of the Seaboard Air Line Railway, formed by the merger and consolidation of a number of corporations therein named pursuant to statute, now appearing as section 2050 et seq., Civ. Code 1902. In reference to charters granted by the Secretary of State creating original railway corporations we find in section 1921, Civ. Code 1902, that such charters are required to be recorded by the Secretary of State in books kept for that purpose. Therefore a certified copy of such record by the Secretary of State would be admissible in evidence under section 2888, which provides: "Attested copies of all records, signed by the keeper of such records respectively, shall be deemed and allowed as good evidence in any of the courts of this state of the original could or might have been if produced to the said courts." But with reference to charters of consolidated corporations, under sections 2050 et seq., while a charter is required to be issued, we do not find any requirments that such charter shall be recorded, although doubtless as a matter of fact they are customarily recorded. Section 2051 provides that the agreement of consolidation with certificate of its adoption by the secretary of the respective companies shall be filed in the office of the Secretary of State, and that a copy of said agreement and act of consolidation duly certified by the Secretary of State under seal shall be evidence of the existence of said new corporation. There seems to be little ground for having one rule of evidence applying to the introduction of certified copies of the charters of original railway corporations and another as applying to the charter of a new corporation formed by the consolidation of original railway corporations, but, in the absence of a statute authorizing it, we must hold that the copy of the charter was not admissible, there being no notice to adverse party to produce the original. But, whether the circuit court was in error or not, it was wholly immaterial and harmless in view of the conclusion reached on the first proposition above, that the incorporation of the defendant was not in issue under the pleadings.

3. The tenth exception alleges error in admitting the plaintiff's testimony that he had been offered a job as section foreman at $43.81 a month, the same being irrelevant and not shown to be an offer made by one with authority to contract for the company. The plaintiff was injured in the employ of defendant as a section hand earning $21.60 per month. The testimony was relevant as tending to show plaintiff's earning capacity at the time he sustained the injury. Impairment of earning capacity is an element of damage involved in personal injury cases. Bussey v. Railway, 52 S. C. 438, 30 S. E. 477; 3 Elliott on Evidence, § 1984. Whether the offer of a better salary was bona fide and by one having authority, was not presented as an objection to the testimony before the circuit court, and cannot be urged for the first time in this court.

4. The eighth exception raises the question, whether the court erred in instructing the jury that the asumption of risk by the party injured is an affirmative defense and must be pleaded. There was no error in this. While such was the view of the writer as expressed in Barksdale v. Railway Co., 66 S. C. 217, 44 S. E. 743, we have not found an express declaration to that effect, or to the contrary, in any decision of this court, but on principles of correct pleading such should be the rule. First, let us understand the nature of such defense. In the case of Bodie v. Railway, 61 S. C. 468, 478, 39 S. E. 715, 718, the court said: "The doctrine of assumption of risk by the employe is distinct from the doctrine of contributory negligence, although there may arise a certain condition of facts capable of supporting either inference. This has given rise to a great deal of confusion of statement when dealing with these defenses. 'Assumption of risk' rests in the law of contract and involves an implied agreement by the employs to assume the risks ordinarily incident to his employment, or a waiver, after full knowledge of an extraordinary risk, of his right to hold the employer for a breach of duty in this regard. Hooper v. R, R., 21 S. C. 547, 53 Am. Rep. 691. The law as to waiver applies because the relation between the employer and employs is contractual and waiver is the voluntary relinquishment of a known right. By the contract the employer and employs each assume certain risks, but, as in all contracts, either party may waive his right to insist upon strict performance of the other's contractual duty. When, therefore, a case arises in which it is shown (upon proper pleading) (italics ours) that the employe has assumed the risk from which the injury arose, or, what is the same thing in effect, has waived his right to hold the employer responsible for risk, the employe's action is defeated because of his agreement and not because of negligence. 'Contributory negligence, ' on the other hand, rests in the law of torts as applied to negligence, and when such defense is established the plaintiff's action is defeated, not because of any agreement expressed or implied, but because his own misconduct was a proximate cause of the injury." In that case both assumption of risk and contributory negligence were pleaded, hence the court considered the question of assumption of risk upon proper pleading. In the Barksdale Case, supra, there was a plea of contributory negligence, and the writer of this opinion took the view that, because of the distinction between the defenses of contributory negligence and...