Sanders v. Hayes

• Citation: 122 S.E. 572,128 S.C. 181
• Decision Date: 15 April 1924
• Docket Number: 11473.
• Parties: SANDERS v. HAYES.
• Court: United States State Supreme Court of South Carolina

122 S.E. 572

128 S.C. 181

SANDERS v. HAYES.

No. 11473.

Supreme Court of South Carolina

April 15, 1924

Appeal from Common Pleas Circuit Court of Oconee County, J. F Carter, Special Judge.

Action by J. B. Sanders against Henry Hayes. A judgment for plaintiff in the magistrate's court was affirmed by the circuit court, and defendant appeals. Affirmed.

The circuit court decree follows:

"This is an action by the plaintiff, J. B. Sanders against the defendant, Henry Hayes, brought in the magistrate's court to recover damages in the sum of $100 for the alleged killing of plaintiff's dog by the defendant.

It appeared that the case was tried three times. The first trial, before Magistrate W. M. Dillard and a jury, resulted in a verdict for the plaintiff in the sum of $50. On appeal to the circuit court, the case was reversed and remanded for a new trial. The next trial resulted in a mistrial. Afterwards, on a motion for a change of venue by the defendant, Magistrate Dillard transferred the case to Magistrate L. C. Graham. The trial before Magistrate Graham and a jury, on June 8, 1923, resulted in a verdict for the plaintiff in the sum of $75. The case now comes before me on appeal by the defendant.

The amount involved in this suit is small, but it appears from the record and the interest manifested that the case was hotly contested and the issues sharply drawn. In considering the appeal, I have endeavored not to overlook any exception and to give each exception full consideration, and I am indebted to counsel representing parties litigant, for the able arguments made and the points and authorities presented.

The plaintiff alleged that, on or about the second day of June, 1922, he was the owner and in possession of a bird dog of the value of $75, and that on the 2d day of June, or thereabout, in the year 1922, the plaintiff's said dog was willfully and maliciously struck, and willfully, maliciously, and wantonly killed by the defendant, to the damage of the plaintiff in the sum of $100.

At the close of the testimony introduced by the plaintiff counsel for the defendant made a motion for a nonsuit on several grounds. The magistrate having refused the motion for a nonsuit, the defendant offered no testimony, and the case was submitted to the jury. The jury rendered a verdict for the plaintiff for the sum of $75 actual damages.

The first exception of appellant is: 'That the magistrate erred in not sustaining defendant's motion for a nonsuit on the several grounds stated in said motion, which is hereto annexed and made a part of this exception.' The first ground upon which appellant asked for a nonsuit is as follows: 'That there is no act of negligence proven or even alleged by plaintiff against defendant.' The second ground upon which the motion was made for nonsuit is 'That there is no testimony to prove that the defendant willfully, wantonly, or maliciously killed plaintiff's dog.' It was conceded by plaintiff's counsel that there was no testimony tending to show willfulness, and therefore, for the purpose of this appeal, I hold that there was no proof of willfulness. It will be observed that the pleadings contain no allegations of negligence, but the allegation is that the dog was killed willfully and wantonly, and the appellant takes the position that, since there was no proof of willfulness and no allegation of negligence, the plaintiff could not recover, and that the magistrate erred in not granting the motion for a nonsuit on that ground. As we understand the rule, as laid down by the Supreme Court of this state, negligence may be proven under an allegation of willfulness. Therefore appellant was not entitled to a nonsuit upon the ground that no willfulness was proven and no negligence alleged. Furthermore, in my opinion, in the trial of cases before a magistrate the litigants should not be held to technical rules of pleading, and if the proof shows that a plaintiff is entitled to the relief sought, he should not be ruled out of court because the pleading is not in compliance with technical rules.

Appellant further contends, under the first ground for motion for nonsuit, that no negligence was proven, and the magistrate erred in not granting a nonsuit on this ground. After a careful reading of the testimony, I am of the opinion that the appellant was not entitled to a nonsuit on this ground. I think that the testimony tended to show some negligence, and it was proper for the magistrate to submit this issue to the jury.

Appellant's third ground for motion for nonsuit was: 'There is no testimony to show that defendant could have prevented the killing of the dog, but, on the other hand, the testimony shows that the dog ran into the car of defendant and was killed without any fault on his part, and therefore was merely accidental.'

Appellant's fourth ground for motion for nonsuit was: 'The testimony shows without a doubt that the dog was not in a helpless condition in the street on the approach of defendant's automobile, but was seen to be possessed of agility and rapidity of movement, fully capable of taking care of itself, and the defendant had the right to rely on that fact and presume the dog would get out of his way on its approach; that, under these circumstances, the defendant owed the dog no duty to take any precaution for its safety.'

Appellant's fifth ground for nonsuit was: 'However, the testimony shows that defendant did use precaution and tried to save the dog from injury, that he saw the dog on the right driveway, which lies on the right of the center of the street, and that defendant turned out of that driveway in order to avoid the dog, and that the dog ran into him without any fault on defendant's part; that defendant, was traveling at a moderate and careful rate of speed.'

These three grounds for a nonsuit may be considered together.

The testimony shows that the defendant was driving his automobile at a moderate rate of speed on the right driveway, which lies on the right of the center of the street, and that when the dog approached that side of the street which the defendant was driving--seemingly for the purpose of crossing the street--the defendant was a considerable distance in the rear of the dog, and immediately turned his car to the left of the street, and came in contact with the dog on the left-hand side of the street, and, after the dog was struck by the car, turned back into the middle of the street.

The contention of appellant is that the defendant turned from the right of the street to the left of the street for the purpose of avoiding the dog, and that the dog ran into the car of the defendant, and that the striking of the dog by the car was accidental.

The plaintiff contends that, if the defendant had kept on the right of the street, in the regular driveway, as he should have done, he would not have come in contact with the dog, for the reason that the defendant was some distance in the rear of the dog at the time the dog approached the street, and the dog would have had plenty of time to have gotten across the street before the defendant reached the point where the dog entered the

street, and would not have been killed, and that it was negligence on the part of the defendant in turning his car from the right of the street to the left of the street, and thereby striking the dog and killing him.

In my opinion, the defendant had the right to assume, when he saw the dog entering the street from the side on which he was driving at a considerable distance ahead, that the dog would move out of the way by the time the car approached that point, there being nothing to show that the dog was in a helpless condition, and it was not incumbent on the defendant to turn from the right side of the street to the left. It may be, as contended by appellant, that the defendant turned from the right side of the street to the left to avoid striking the dog, and that the killing of the dog was purely accidental. However, the testimony does not show this. No one knows what was in the mind of the defendant except the defendant himself, and I consider it unfortunate that the defendant failed to explain his movement at the time. The testimony, introduced by the plaintiff, in my opinion, raises an issue for the jury on the question of negligence, and I think the magistrate properly overruled the motion for a nonsuit.

The second exception of appellant alleges error on the part of the magistrate in not charging defendant's first, second, third, sixth, eighth, and ninth request. Defendant's first request is as follows: 'This is an action founded on tort, by plaintiff, J. B.

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