Price v. American Agr. Chemical Co.

• Decision Date: 11 November 1935
• Docket Number: 14167.
• Citation: 182 S.E. 637,178 S.C. 217
• Parties: PRICE v. AMERICAN AGR. CHEMICAL CO. et al.
• Court: South Carolina Supreme Court

182 S.E. 637

178 S.C. 217

PRICE v. AMERICAN AGR. CHEMICAL CO. et al.

No. 14167.

Supreme Court of South Carolina

November 11, 1935

Appeal from Common Pleas Circuit Court of Richland County; M. M Mann, Judge.

Action by Mrs. Eva Price, administratrix of the estate of Harry B Price, deceased, against the American Agricultural Chemical Company and another. From a judgment for the plaintiff, the defendants appeal.

Affirmed.

Herbert & Dial, of Columbia, for appellants.

John Hughes Cooper, A. F. Spigner, and Edwin H. Cooper, all of Columbia, for respondent.

STABLER Chief Justice.

On or about September 16, 1929, Harry B. Price, a young man, was killed while working in the chemical plant of the defendant company at Cayce, S.C. At the time, he was employed as a helper and had worked there for a number of years. His duties were "walking the chambers," taking down the readings of the temperature of the thermometers, and watching the acid tanks, to see that they did not get too full and run over. He also started and stopped the pumps, which were operated by an electric motor, and took care of certain machinery, in the doing of which he was required to make minor repairs and to keep the machinery oiled and in working order. He was charged with dressing the belts with a liquid, which brought him into close contact with the machinery, especially the belts. It was his duty alone to look after the switch-the starting and stopping of the machinery in his charge; and when the tanks were getting too full of acid to put in motion the pumps by throwing the switch. It was alleged by the plaintiff that the chamber walker, when resting, and the machinery was not running might sit on the belt.

The defendant Truesdale, the superintendent of that department of the company's plant, claimed that he went there on the afternoon of the day in question and found that the chamber walker had not started the pumps as he should have done and that as a result the acid tanks on the upper floor were about to run over and drench the plant with sulphuric acid; that he called Price but got no answer, and then pulled the switch that he heard the guard rail make a little noise, and he stopped the pumps and went over to examine the rail, and saw the body of Price on the floor by the belt, with one foot across it. There was testimony to the effect that the skull of the deceased was crushed.

This action was brought by the plaintiff against the defendants for the recovery of damages on account of the alleged wrongful death of Price. It was alleged, among other things, that the defendants were negligent, in that Truesdale, the superintendent, acting within the scope of his authority as the agent and servant of the company, turned on the motor without determining whether or not Price was working on the machine and near the belt, whether or not he was sitting or sleeping on the belt, as Truesdale knew it was customary for the employees to do so; and that he did not give proper and adequate warning in the circumstances, but pulled the switch without any regard for the safety of others. The defendants denied the material allegations of the complaint and pleaded contributory negligence and assumption of risk.

This case has been here before. 173 S.C. 518, 176 S.E. 352, 354. On the former appeal, one of the questions raised was whether the trial judge was wrong in ruling that statements made by the defendant Truesdale immediately after the accident were not admissible in evidence against the defendant chemical company. This court held that he was; that the "declarations of Mr. Truesdale were not only admissible as a part of the res gestæ, but they should have been allowed for what they were worth as binding on his codefendant." The other question was whether the court below was in error in granting the motion for a nonsuit on the grounds (a) that the act of Truesdale in starting the machinery, in the circumstances, was the act of a fellow servant; and (b) that there was no evidence of actionable negligence on the part of Truesdale. We held that there was error; that both (a) and (b), under the evidence, were questions for the determination of the jury.

On the new trial of the case, had at the December, 1934, term of the court of common pleas for Richland county, a directed verdict, asked for by the defendants, was refused, and the jury found for the plaintiff $5,000 actual damages. From judgment duly entered, this appeal is taken.

The grounds of the motion for a directed verdict were substantially the same as those on which the nonsuit was granted in the former trial. Judge Mann, after pointing out what the Supreme Court had held, under its view of the testimony for the plaintiff, said: "I think that in itself practically forecloses this Court at this time from taking any opposite view, inasmuch as I don't think there is any material variation in the testimony of plaintiff at this particular point, than at the former trial, as I have viewed the testimony and heard it from the witness stand today."

We have examined with care the voluminous testimony contained in the record, but deem a review of it unnecessary. We also have before us the record in the former trial of the case; and as stated by the circuit Judge, the testimony for the plaintiff at the last trial, on the question of the actionable negligence of the defendants, was practically the same as that taken with respect to the same issue on the former trial. In short, there was no material variation. It is true that much of what Truesdale said was in conflict with the statements of other witnesses, but this merely made a question for the jury. The refusal to direct a verdict was proper.

At the conclusion of the arguments to the jury, Mr. Herbert, of counsel for the defendants, moved the court to order a mistrial on the ground that the attorneys for the plaintiff, Mr. John Hughes Cooper and Mr. Spigner, had made certain improper remarks, in the course of their arguments, which were calculated to prejudice the jury in their deliberations and thus bring about a miscarriage of justice. He stated that Mr. Cooper, who first addressed the jury, improperly argued that if they should render a verdict against both of the defendants, that the plaintiff had the right to excuse Mr. Truesdale from paying any of it; and that Mr. Spigner, who spoke to the jury last, improperly said to them that while the company had made Truesdale the goat, it would not make him pay a "stinking cent"; and that even if the verdict were small, defendants would appeal and keep the case in court until the witnesses died and the plaintiff could no longer get justice.

The trial judge refused the motion, stating that he could not say that the objectionable remarks made by counsel for the plaintiff, which were substantially as claimed by Mr Herbert, "would prejudice the jury in their deliberations." After a verdict was returned for the plaintiff, a new trial was asked for on the ground stated in the motion for a mistrial; and on the further ground that the court committed error in not ordering a...