Morrow v. Gaffney Mfg. Co.

• Decision Date: 24 November 1904
• Citation: 49 S.E. 573,70 S.C. 242
• Parties: MORROW v. GAFFNEY MFG. CO.
• Court: South Carolina Supreme Court

49 S.E. 573

70 S.C. 242

MORROW v. GAFFNEY MFG. CO.

Supreme Court of South Carolina

November 24, 1904

Appeal from Common Pleas Circuit Court of Cherokee County; James P Carey, Special Judge.

Action by George Nicholls Morrow, by guardian ad litem, against the Gaffney Manufacturing Company. From judgment for plaintiff defendant appeals. Affirmed.

P. H C. Cabell and J. C. Jeffries, for appellant. Evans & Finley and Butler & Osborne, for respondent.

POPE C.J.

The plaintiff brings suit to recover $15,000 damages for a personal injury from defendant. Both compensatory and exemplary damages are alleged. Trial had before Judge Dantzler and a jury. Verdict for $6,000 was rendered in favor of plaintiff. A motion for a new trial was denied. After entry of judgment, defendant appealed on the following grounds:

"(1) Because his honor erred in allowing the complaint amended by inserting therein the proposed amendment, which was as follows: '(9) That the defendant company, through its agent, Patterson, plaintiff's boss, willfully wantonly, recklessly, and negligently ordered the plaintiff to clean off the spinning frame, stating that it was standing, while the said Patterson knew or should have known said frame was not standing, but that the cylinder therein was revolving, and plaintiff, having explicit confidence in the word and intelligence of said Patterson, not knowing that said cylinder was running and [[[[[proceeded to clean the same], without any warning of the extra hazard being given by defendant or its agents, by reason whereof the right hand of the plaintiff was caught in said revolving cylinder and the fingers thereof mashed and lacerated and torn off, so that it was necessary to amputate all of them on said hand, causing him great pain, suffering, and mental anguish, to his great damage in the sum of $15,000.' The error complained of being that the said amendment was a new cause of action, and one that was totally and wholly inconsistent and contradictory to the previous allegations of the complaint."

The "case" shows that a motion to amend, together with a copy of paragraph 9, was duly served upon the defendant before the trial, and that such motion to amend was called up and heard before the action was called for trial. A comparison of the original complaint and the proposed amendment shows that both grew out of the alleged injury of the plaintiff by the defendant; all the allegations show that plaintiff had his hand crushed in a machine operated in defendant's factory on or about the 14th March, 1902, while plaintiff was in the employment of the defendant and under the direction of its officers. Section 194 of our Code of Civil Procedure of 1902 authorizes the circuit judge to allow amendments "by inserting other allegations material to the case." We are satisfied that there was no error as here complained of. The act of 1898, now embodied in section 186 of our Code, is in point. This exception is overruled.

"(2) Because his honor erred in not requiring plaintiff's counsel to examine witness George Nicholls Morrow in proper manner, and to instruct counsel not to make such remarks as 'and kicked you out.' The error complained of being that the tendency of such remarks was to prejudice the defendant's case with the jury."

An examination of the "case" for appeal will show, we think, this ground of appeal suggests too serious a view of the language of counsel for respondent. Here is the connection in which the language occurred, as well as a quotation of the exact language complained of. The plaintiff was being examined by his counsel: "Georgie, to whom did you look for your orders? Witness: To Mr. Patterson. Q. Mr. Patterson? A. Yes, sir. Q. Were you required to do what Mr. Patterson said? A. Yes, sir. Q. If you didn't do what Mr. Patterson said, Georgie, what would be the result? A. Turned you off. Q. Turned you off and kicked you out? A. Yes, sir." Then defendant's counsel objected to such remarks. The court merely said, "Proceed with the examination, gentlemen, and let the witness answer." Of course, the question of counsel, "and kicked you out," was objectionable to the nice propriety usually characterizing counsel in their examination of witnesses in court, but no injury was wrought to the defendant. This being the case, we cannot sustain the exceptions. It is overruled.

"(3) Because his honor erred in allowing, over the objection of appellant's attorneys, the following question: 'Georgie, don't you know he is a poor man?' meaning Georgie's father. The error complained of being that such question was not relative to any of the issues by the pleadings, was not a competent question, and was leading.

(4) Because his honor erred in allowing the witness Morrow, the father of the plaintiff, to testify as to his financial condition, over the objection of appellant's counsel, to the following questions: 'State, Mr. Morrow, what are your circumstances as to the property, ownership of land, or anything like that.' 'Well, state your condition, Mr. Morrow, as to this world's goods.' The error complained of being that the financial condition of the father of this boy was incompetent and irrelevant to the issues raised in the pleadings, and would tend to prejudice the case in favor of the plaintiff against the defendant.

(5) Because the court allowed the witness Morrow, the father of the plaintiff in this action, to testify, over the objection of the appellant's attorney, to the following questions: 'Those children, the ages of them, Mr. Morrow?' (meaning witness' children). The error complained of being that the family of the witness outside of the plaintiff, the number and ages, had nothing to do with the issues raised in this pleading, and that allowing such matters brought out in form of evidence, in connection with the witness' poverty, tended to bias the defendant's case before the jury."

We will presently copy what testimony the plaintiff was allowed without objection to give. The plaintiff was a poor boy--a minor; hence, when he testified as to his own circumstances, those of his father and sisters and brothers that he was helping to support, without objection from the defendant, there was presented an issue that made his father's testimony on that line competent. Here is the plaintiff's testimony: "Q. Have you had to work, in addition to what your father gives you, for support? A. Yes, sir. Q. You do? A. Yes, sir. Q. Is your father a wealthy man, or is he a man of very moderate means--poor man--is he a poor man or rich man? A. He is sorter poor man. Q. Georgie, don't you know he is a poor man? Mr. Jeffries: Your honor, I do not think that is proper evidence. The Court: I think it is relative to the issues. Mr. Evans: Well, sir, are you dependent for your living-- Witness: Yes, sir. Q. --For what you work for and what your father works for? A. Yes, sir. Q. Your father does what? A. Weaves. Q. He weaves down in the mill here? A. Glendale. Q. He does not own any land, does he? A. No, sir. Q. So you had to work for your living? A. Yes, sir. Q. With your hand? A. Yes, sir. Q. In the mill? A. Yes, sir. Q. And that is all you have got, isn't it? A. Yes, sir. Q. Well, Georgie, have you ever had any education? A. No, sir. Q. Have you gone to school much? A. No, sir. Q. You have had to work-- A. Yes, sir. Q. --Instead of going to school? A. Yes, sir. Q. Is that it? A. Yes, sir. Q. Have you any brothers and sisters? A. Yes, sir. Q. How many? Can't you name them, Georgie? Now, how many have you got? A. Got five. Q. Got five? A. Yes, sir. Q. Yes, sir; how many older than you, and how many younger than you? A. I have got a sister older than I am-- Q. That is all? A. Yes, sir. Q. All the rest younger than you? A. Yes, sir. Q. What is the age of the youngest one, Georgie? Mr. Jeffries: May it please your honor, that is not a proper way to question the witness. The Court: I do not see what the size of the family has to do with it. Mr. Evans: I want to show that it is a poor family, and he had to contribute to the support of the family. The Court: Well, I have allowed you to go to that extent. Mr. Evans (to witness): Where did your wages go? To support yourself and to help your parents and your brothers and sisters? Witness: Yes, sir. Q. Are you able to earn as much now as you did then, Georgie? A. No, sir." Under these circumstances, the testimony was not improperly given. These exceptions are overruled. "(6) Because his honor erred in allowing the witness Morrow, father of the plaintiff, to testify to the following question, over the objection of appellant's counsel: 'Mr. Morrow, you are a man that has been working in the mill yourself--do you know the wages generally paid to sweepers?' The error complained of being: (a) That it was only competent to show what the plaintiff in this action was getting as a sweeper, unless it could be shown that he was getting the same as ordinary sweepers, and such evidence was never adduced. (b) Error because such testimony tended to contradict the plaintiff, who himself testified that he was getting fifty cents a day."

The mind of the young man was not considered very bright. He had spoken in his testimony of receiving 50 cents as a sweeper. Under the circumstances, it was legitimate to ask such questions to test this condition of his mind. A witness for the defendant testified...