Simon v. Flowers, No. 3-404

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: LEGGE; STUKES
• Docket Number: No. 17330,No. 55,No. 3-404,M
• Parties: Kalep SIMON, by his Guardian ad litem, Bessie Simon, Respondent, v. W. H. FLOWERS, d/b/a Darlington Tractor and Equipment Company and the Roanoke Holiday Tobacco Harvester, SerialodelJ R, Appellants.
• Decision Date: 23 July 1957

Page 391

99 S.E.2d 391 231 S.C. 545 Kalep SIMON, by his Guardian ad litem, Bessie Simon, Respondent,
v.
W. H. FLOWERS, d/b/a Darlington Tractor and Equipment
Company and the Roanoke Holiday Tobacco Harvester,
Serial No. 3-404, Model No. 55 J R, Appellants. No. 17330. Supreme Court of South Carolina. July 23, 1957.

Page 392

[231 S.C. 546] Bridges & Bridges, Florence, for appellants.

Cook & Cook, Hartsville, for respondent.

LEGGE, Justice.

[231 S.C. 547] In a tort action for personal injuries, the defendant failed to plead to the complaint within the twenty-day period prescribed by Section 10-641 of the 1952 Code. He was adjudged in default, and the matter was referred to the Master, who, having taken testimony, filed his report recommending judgment for the plaintiff in the amount of $25,000 actual damages. Thereafter, plaintiff's counsel having declined to accept service of a proffered answer, the defendant moved for permission to answer, upon the ground that his default had been occasioned by mistake and excusable neglect; and the plaintiff moved for an order confirming the Master's report. Both motions were argued before the Honorable J. Woodrow Lewis, Judge of the Fourth Judicial Circuit; and by his order dated January 26, 1957, he refused the defendant's motion and confirmed the Master's report so far as it concerned the issue of the defendant's liability, but held that an award of $20,000 for actual damages would be adequate and proper, and ordered judgment in favor of the plaintiff in that amount. From that order the defendant now appeals upon the following exceptions:

'1. The Circuit Court erred in mistaking the grounds of appellant's motion.

'2. The Circuit Court abused its discretion in refusing to permit appellant to answer respondent's complaint.

'3. The Circuit Court erred in granting judgment to respondent.

'4. The Circuit Court erred in granting judgment to respondent for twenty thousand ($20,000.00) dollars actual damages.'

Exceptions 1 and 3 are too general and indefinite for consideration. Supreme Court Rule 4, Section 6; Rodgers v. Herron, 226 S.C. 317, 85 S.E.2d 104, 48 A.L.R.2d 1241.

Exception 4 raises no reviewable issue. At most it charges, by implication, that the amount of the judgment was excessive, which is insufficient to invoke [231 S.C. 548] the appellate jurisdiction. Nelson v. Charleston & W. C. R. Co., 226 S.C. 516, 86 S.E.2d 56. Moreover, the issue thus sought to be raised here was not raised in the lower court, and therefore cannot be considered now. Simonds v. Simonds, 229 S.C. 376, 93 S.E.2d 107; Grant v. Clinkscales, 230 S.C. 416, 95 S.E.2d 854; Surfside Development Corp. v. Reynolds & Manley Lbr. Co., S.C., 99 S.E.2d 49.

There remains for consideration the contention that the refusal by the Circuit Judge to open the default and permit appellant to answer the complaint was an abuse of judicial discretion. The facts pertinent to that issue, apparent from the record, are as follows:

This action, based upon alleged negligence of the personal defendant's employee in the operation, on a public highway, on December 2, 1955, of a tobacco harvester (also joined as defendant), was commenced on September 20, 1956, by service of the summons, together with verified complaint. The defendant promptly turned these papers over to his liability insurance carrier, whose agent delivered them to its local counsel, Mr. Bridges, at Florence, S. C., on September 24, 1956, stating that they had been served upon the defendant on September 20 or 21. Mr. Bridges, who had not theretofore been informed of the accident referred to in the complaint, promptly by telephone advised his client, the insurance company, of the pending action, and requested

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information with regard to its investigation of the accident. On September 28, 1956, he received from the company photostatic copies of pertinent parts of the investigation, including a copy of a statement made by the operator of the tobacco harvester shortly after the accident. This statement was to the effect that the injuries sustained by the plaintiff (a fourteen year old colored boy) had resulted from his being thrown by a fractious horse, and were not the result of any negligence on the part of the harvester operator.

At the time of the receipt of this investigation file, Mr. Bridges was engaged in a trial in the Court of Common [231 S.C. 549] Pleas for Florence County. From this point we quote from his affidavit upon which the motion for leave to answer was predicated:

'Accordingly, and according to...