Sellars v. Collins, No. 16037.

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: OXNER
• Citation: 46 S.E.2d 176
• Parties: SELLARS . v. COLLINS et al.
• Docket Number: No. 16037.
• Decision Date: 02 February 1948

46 S.E.2d 176

SELLARS .
v.
COLLINS et al.

No. 16037.

Supreme Court of South Carolina.

Feb. 2, 1948

[46 S.E.2d 177]

Appeal from Common Pleas Circuit Court of Spartanburg County; J. Wood-row Lewis, Judge.

Action by Dean Leroy Sellars, by his guardian ad litem, A. A. Sellars, against Charles Elmore Collins and One Tudor Chevrolet Town Sedan bearing South Carolina License No. D28--376, to recover for personal injuries allegedly sustained by plaintiff as a result of a collision between a motorcycle which he was riding and an automobile driven by defendant. Verdict for defendant. From an order granting plaintiff's motion for new trial, defendant appeals.

Exceptions overruled and appeal dismissed.

Whiteside & Taylor, of Spartanburg, for appellant.

Lyles & Lyles, of Spartanburg, for respondent.

OXNER, Justice.

This is an action to recover damages for personal injuries sustained by plaintiff on June 28, 1946, as result of a collision between a motorcycle which he was riding and an automobile driven by defendant. Plaintiff alleged that his injuries were due to the negligence and wilfulness of the defendant in the operation of said automobile. Defendant denied the material allegations of the complaint and set up a plea of contributory negligence and wilfulness. The case was tried in April, 1947, and resulted in a verdict for the defendant. On motion of the plaintiff, the trial Judge set aside the verdict and granted a new trial and from this order the defendant has appealed.

The first question for determination is whether an appeal will lie from the order granting a new trial. It is well settled in this State that an order granting or refusing a new trial when based solely on an error of law is subject to review by this Court, but when the order is based upon questions of fact, or upon both questions of law and fact, it is not appealable. Daughty v. Northwestern R. Co, 92-S.C. 361, 75 S.E. 553; Ingram v. Hines, Director General, 126 S.C. 509, 120 S.E. 493; Snipes v. Davis, Director General, et al, 131 S.C. 298, 127 S.E. 447; Walker, et al, v. Quinn, et al, 134 S.C. 510, 133 S.E. 444; King v. Western Union Tel. Co, et al, 167 S.C. 500, 166 S.E. 629; O'Barr v. Pioneer Life Ins. Co, 172 S.C. 72, 172 S.E. 769; Marsh v. Pioneer-Pyramid Life Ins. Co, 174 S.C. 59, 176 S.E. 878; Morrison v. South Carolina State Highway Department, 181 S.C. 258, 187 S.E. 344. In Marshall v. Charleston & S. Ry. Co, 57 S.C. 138, 35 S.E. 497, the Court said: "The well-settled rule is that this court cannot review an order refusing or granting a new trial except for error of law, as the court is without jurisdiction to review the judgment of the circuit court on question of fact." The following from Massey v. Adams, 3 S.C. 254,

[46 S.E.2d 178]

has been frequently quoted with approval: "The only question proper for our consideration, is whether there was error of law in the order granting the new trial. If it was founded, either wholly or in part, on a conclusion from the fact contrary to that of the jury, then, according to the well-established principles governing the Court in regard to appeals, in which propositions of law do not arise, we cannot interfere." In dismissing an appeal from an order granting a new trial, the Court in Bowman v. Harby, 109 S.C. 396, 96 S.E. 144, said: "It is too plain for discussion that, under our decisions, the order is not appealable, because the new trial was not granted solely upon a question of law, but involved a consideration of the facts and the conduct of the...