Powers v. Wheless

• Decision Date: 28 May 1940
• Docket Number: 15092.
• Parties: POWERS v. WHELESS.
• Court: South Carolina Supreme Court

9 S.E.2d 129

193 S.C. 364

POWERS v. WHELESS.

No. 15092.

Supreme Court of South Carolina

May 28, 1940

F Mildred Huggins, of Timmonsville, for appellant.

Ray W. Humphrey, of Florence, for respondent.

BAKER Justice.

The plaintiff, now respondent, brought this action in the Magistrate's Court, against appellant, for property damages in the sum of $100, resulting from a collision between respondent's automobile and a two-horse wagon alleged by respondent to have been "driven by an agent servant, or employee of defendant under express orders of the defendant". Appellant, in his answer, denied respondent's allegations of negligence, set up a plea of contributory negligence, and further denied all allegations of the complaint pertaining to agency between himself and the driver of the two-horse wagon.

At the conclusion of respondent's testimony the appellant made a motion for a nonsuit upon two grounds: first, failure to prove any acts of negligence as alleged in the complaint and, second, the failure to establish agency between the driver of the wagon and appellant. The Magistrate's reasons for refusing appellant's motion for a nonsuit were as stated by the presiding Magistrate: "Well, this is like a preliminary so far only one side heard, and we got a good jury here and I am going to let them decide it."

Upon the refusal of the Magistrate to grant appellant's motion for nonsuit, appellant proceeded with the introduction of his testimony, and the respondent put up two witnesses in reply, whose testimony was merely cumulative.

The issues were submitted by the Magistrate to a jury resulting in a verdict for respondent in the sum of $100, the full amount for which action was brought.

Although appellant did not by express language request the trial Magistrate to direct a verdict in his favor at the conclusion of the testimony, yet his motion for a nonsuit was brought forward in the record for the entire case to be treated as a motion for a directed verdict.

The appellant appealed to the Court of Common Pleas, which appeal was heard by Honorable J. Strom Thurmond, the then presiding Judge of the Twelfth Judicial Circuit, who remanded the case for a new trial due to the error made by the trial Magistrate in charging the jury that if they found for the plaintiff they would have to find the sum of $100, and could not find any lesser amount. Judge Thurmond did not directly pass upon the exception embodying the issue of agency but expressed strong doubts as to the sufficiency of the evidence to prove agency.

The appeal is prosecuted in this Court upon exceptions charging error against the two lower Courts in that; first, the failure of the Magistrate to grant appellant's motions for a nonsuit and directed verdict because of the insufficiency of the evidence to establish agency; and, second, the refusal of Judge Thurmond, sitting as an appellate Court, to reverse the Magistrate in this particular, and order judgment entered for appellant.

It is well established in this State, and in others, that agency cannot be proven by the declarations of the alleged agent alone, but his statements are admissible and competent as circumstances in connection with other competent evidence to prove...