Smith v. Oliver Motor Co., 13965.

CourtUnited States State Supreme Court of South Carolina
Citation177 S.E. 791,174 S.C. 464
Docket Number13965.
PartiesSMITH v. OLIVER MOTOR CO. et al.
Decision Date02 January 1935

Appeal from Common Pleas Circuit Court of Richland County; T. S Sease, Judge.

Action by Manly R. Smith against the Oliver Motor Company and another. Judgment for defendants, and, from an order denying new trial and all rules, orders, proceedings and actions of the court, plaintiff appeals.


John W Jennings and D. M. Winter, both of Columbia, for appellant.

J. B Murphy, Geo. H. Wittkowsky, and Kreps & Taylor, all of Columbia, for respondents.

C. J RAMAGE, Acting Associate Justice.

This is an action to recover damages against the respondents for the alleged conversion of an automobile belonging to the appellant. The facts are undisputed that on June 27, 1931, Smith purchased an automobile from the Oliver Motor Company, and to secure the balance of the purchase price thereof executed to said Oliver Motor Company a conditional sales contract, conditioned for the payment of $16 a month until the full indebtedness therein was paid. This contract was before maturity duly assigned to the C. I.

T. Corporation, and, at the time of the sale of the automobile, plaintiff was in default in his payments.

The complaint alleges that, while plaintiff was negotiating with the defendants with the view of settling the total amount due under said contract, Smith sent the car to the Oliver Motor Company with the request that the same be held for two or three days until a final settlement could be made. The complaint further alleges that the respondents, without further notice, sold and disposed of said car, to plaintiff's damage in the sum of $5,210.15.

The answers of the defendants are very similar, and, after denying the material allegations of the complaint, alleged that the acts and doings of the defendants were in strict accordance with the terms and conditions of the conditional sales contract, hereinbefore referred to.

At the trial of the case, plaintiff offered evidence to prove that the defendants had agreed to hold the car in question for redemption by him within a few days, and a conversion was committed by the sale of the car within the five-day period. As stated in the answer, defendants denied any such agreement, and, by the cross-examination of plaintiff and witnesses produced in their behalf, offered evidence to prove that plaintiff had voluntarily surrendered the car and had impliedly and specifically waived the five-day provision in the mortgage.

At the close of the testimony, defendants moved for a directed verdict, which was overruled by the trial judge, and the case submitted to the jury, which resulted in a verdict for the defendants. Thereafter plaintiff moved for a new trial on the minutes of the court and also on the ground that the juror W. T. Coleman was improperly listed on the venire, and was also an agent of the defendant C. I. T. Corporation. No motion was made to put the jurors on their ""voir dire," and, for the reasons stated in the order, the motion for a new trial was refused. From such order and "all rules, orders, proceedings, and actions of the Court, in and in connection with the trial of the above styled matter," an appeal was duly taken to this court. We shall consider the appeal on its merits.

Each of the exceptions violates section 6 of rule 4 of this court, in that it does not properly specify the error complained of and also embodies two or more questions of law and fact that this court is asked to review. This rule has been thoroughly discussed in the cases of Honour v. Southern Public Utilities Co., 110 S.C. 163, 96 S.E. 250, State v. Cooper, 118 S.C. 300, 110 S.E. 152, Hayes v. McGill, 116 S.C. 375, 108 S.E. 150, and Adams v. Wilkes, 118 S.C. 93, 109 S.E. 804, in all of which cases the appealing parties have been required to comply strictly therewith. Counsel for the appellant themselves admit that exception 1 violates this rule, for in the last paragraph of the statement contained in their argument we find the following: ""It appears from the printed Transcript that two (2) exceptions are embodied in the paragraph numbered 1, the first exception ending with the word 'violated' on line 5 of said paragraph, being Folio 567, on page 144 of the Transcript of Record."

For the sake of convenience, we shall discuss the merits of exception 1 by first considering that portion thereof which alleges error in refusing a new trial made upon the ground that the verdict was contrary to the evidence. This assignment of error cannot be sustained for the reason that no motion for a directed verdict was made by appellant. This court has repeatedly held that this assignment cannot be considered, unless the appealing party raises the question in the lower court by a motion for a nonsuit or directed verdict. Entzminger v. Seaboard Air Line Railway, 79 S.C. 151, 60 S.E. 441; Sawyer v. Marion County Lumber Co., 83 S.C. 271, 65 S.E. 225; Thomas Drug Store v. National Surety Co., 104 S.C. 190, 88 S.E. 442.

Also has it been repeatedly held that an appeal will not lie from an order refusing a motion for a new trial based upon a question of fact where there is any testimony to support the verdict. Miller v. Atlantic Coast Line Railroad Company, 95 S.C. 471, 79 S.E. 645; Haynes v. Kay, 111 S.C. 107, 96 S.E. 623; Heyward Williams Co. v. Zeigler, 109 S.C. 167, 96 S.E. 119; Ingram v. Hines, Dir. Ten., 126 S.C. 509, 120 S.E. 493; Harvey v. Railway Co., 133 S.C. 324, 130 S.E. 884; King v. Western Union Telegraph Co., 167 S.C. 500, 166 S.E. 629. From a reading of the record, it will readily be seen that there was abundance of testimony to the effect that the five-day provision of the mortgage was waived. In fact, the cross-examination of the plaintiff was conducted almost entirely along this line, and practically all of defendants' witnesses testified to facts showing a waiver of said condition. Testimony of defendants' witness Gursh, to show such waiver, is quoted under exception 3.

The second assignment of error contained in exception 3 cannot be sustained for three reasons:

(1) Objection to the juror should have been taken before the trial commenced. This is required by section 639, vol. 1, of the Code of 1932.

(2) Appellant does not show that he has been prejudiced by the fact that the initials of Mr. Coleman were incorrectly listed on the venire. The affidavit of Mr. Coleman, presented to the court on the argument for a new trial, states that the juror gave all parties interested a fair and impartial trial, and that there was no outside influence whatsoever which affected him in the determination of the verdict. In fact, the affidavit of John W. Jennings, one of the attorneys for the appellant, does not state that the improper listing of the juror in any way prejudiced appellant's case. There can be no question but that appellant must show his rights have been prejudiced by the improper listing. State v. Stephens, 11 S.C. 319.

(3) Appellant has not shown that he used due diligence to ascertain the improper listing of Mr. Coleman on the venire. State v. Rafe, 56 S.C. 379, 34 S.E. 660; State v. Johnson, 66 S.C. 23, 44 S.E. 58. It will be observed that the venire not only gave the name of the jurors, but also gave their addresses. Upon the drawing of the jury by the proper parties, their names are posted for several weeks before court, and in each instance their addresses and sometimes their occupations are given. Mr. Coleman had lived in Columbia for years, been prominent in its affairs, and certainly with effort or diligence appellant could have easily known or ascertained that the initials were "T. W." and not "W. T."

In addition to the reasons stated above with reference to exception 1, exception 2 cannot be sustained for the reason that the evidence before the trial Court conclusively showed that the juror T. W. Coleman was in no wise interested in, connected with, or employed by the C. I T. Corporation. The affidavit of Mr. Jennings merely states that this juror was an agent or salesman for the Asbill Motor Company, and, although Mr. Jennings does state that Mr. Coleman was indirectly connected with, and acting for, the C. I. T. Corporation, he gives as his reason for such statement that Mr. Coleman worked for the Asbill Motor Company, which company merely financed some of its papers with the C. I. T. Corporation. Obviously, this did not make Coleman an agent of the C. I. T. Corporation, or in any way disqualify him to serve as a juror in this case. Further, the affidavit of H. W. Sandford states that the said juror was in no wise connected with, or employed by, the C. I....

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2 cases
  • Southern Welding Works, Inc. v. K & S Const. Co., 0497
    • United States
    • Court of Appeals of South Carolina
    • February 20, 1985
    ...appears that the objecting party was prejudiced thereby. Section 14-7-1140, Code of Laws of South Carolina, 1976; Smith v. Oliver Motor Co., 174 S.C. 464, 177 S.E. 791 (1935); Graham v. Columbia Ry., Gas & Electric Co., 103 S.C. 468, 86 S.E. 952 (1915). Moreover, all objections to jurors, i......
  • Dodenhoff v. Nilson Motor Exp. Lines
    • United States
    • United States State Supreme Court of South Carolina
    • March 24, 1939
    ...... duty to call it to the attention of the trial Judge, when he. gave them the opportunity of so doing at the conclusion of. his charge. See Smith v. Oliver Motor Co., 174 S.C. 464, 473, 177 S.E. 791, and cases therein cited. . .          . Appellants' second exception alleges: ......

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