Snipes v. Augusta-aiken Ry. &

• Decision Date: 15 July 1929
• Docket Number: (No. 12701.)
• Citation: 149 S.E. 111
• Court: South Carolina Supreme Court
• Parties: SNIPES. v. AUGUSTA-AIKEN RY. & ELECTRIC CORPORATION et al.

149 S.E. 111

SNIPES.

v. AUGUSTA-AIKEN RY. &ELECTRIC CORPORATION et al.

(No. 12701.)

Supreme Court of South Carolina.

July 15, 1929.

it meets all requirements of the law. (Per Cothran, J., dissenting.

Appeal from Common Pleas Circuit Court of Aiken County; T. J. Mauldin, Judge.

Action by Lee Snipes against the Augusta-Aiken Railway & Electric Corporation and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Hull, Barrett & Willingham, of Augusta, Ga., and Hendersons & Salley, of Aiken, for appellants.

Williams, Croft & Busbee, of Aiken, for respondent.

GRAYDON, A. A. J. This was an action in tort by the plaintiff against the defendants, Frampton Carter and Augusta-Aiken Railway & Electric Corporation, for alleged personal injuries resulting from the striking of the wagon of the plaintiff by a car of the defendant Augusta-Aiken Railway & Electric Corporation, driven by Carter. The case was tried before Hon. T. J. Mauldin and a jury, and resulted in a verdict in favor of the plaintiff and against both defendants for the sum of $1,900.

On the 13th day of September, 1926, Carter, who was in the employ of the Augusta-Aiken Railway & Electric Corporation, his codefendant, was instructed by F. E. Cortez to take a Chevrolet automobile, the property of the corporation, to Augusta, to either secure certain, parts or have certain parts repaired. Carter went to Augusta in said automobile, and, while there waiting for same, received a telephone message that his father was dead. He immediately got in the automobile of his codefendant and started back to Aiken. He returned the car of his codefendant and secured his own car to go to his father's place of residence. While returning to Aiken from Augusta, Carter, driving at a high and dangerous rate of speed, came up behind the wagon of the plaintiff and ran into it from the rear. As a result of thiscollision, the plaintiff was rendered temporarily unconscious and his mules were caused to run away with him. The plaintiff suffered injury to his leg and other parts of his body, and as a result therefrom was caused great physical pain and mental anguish. Carter's testimony disclosed that he was traveling at a high and excessive rate of speed. It is uncontradicted that the plaintiff was riding on the right side of the road, as he was required to do under the law.

There are five exceptions in the case, and the same will be discussed in the order in which they are presented.

The first question discussed is as to the admissibility of certain statements on the part of one Cortez, admittedly the line superintendent of the Augusta-Aiken Railway & Electric Corporation, that the defendant Carter had been to Augusta for the purpose of procuring a new attachment for the automobile of said railway company. This statement was first made at the time the plaintiff was consulting a physician, immediately after the accident in Aiken. The same statement was made some time later by Cortez, when approached by the plaintiff in an effort to settle the cause. There are three reasons why this testimony was admissible under the circumstances:

(1) It cannot be denied, under the case of Williams v. Telegraph Co., 138 S. C. 286, 136 S. E. 218, that where a statement was made by an agent of a corporation, while still about the instant business of the corporation, it would be admissible on the theory that such statement was, although not a part of the res gestae as to the immediate transaction, a part of the res gestae as to the general transaction in its entirety. A full discussion in this matter is had in the case of Meinhard v. Youngblood, 41 S. C. 325, 19 S. E. 675, where the rule is laid down in conformance with this, quoting from 1 Greenleaf on Evidence, p. 113. The correct rule is that, so long as the agent of the company is connected with the business pending and in question, the testimony is a part of the res gestæ and is competent. Although the circuit judge stated that he did not let this testimony in as a part of the res gestae, still the general rule is that, if it is competent on this or any other ground, it is admissible. Tenhet v. Railroad Co., 82 S. C. 467, 64 S. E. 232; Crawford v. Railroad Co., 56 S. p. 144, 34 S. E. 80; Stroud v. Railroad Co., 79 S. C. 452, 60 S. E. 963; Lipscomb v. Railroad Co., 65 S. C. 156, 43 S. E. 388; Sou. Ry. v. Howell, 79 'S. C. 288, 60 S. E. 677.

A careful study of the above decisions discloses that the correct rule is that "the admissions of an agent bind the principal if made during the agency and within its scope as to a matter then depending." It will be seen that this is not in conflict at all with the rule, which has so often been announced in this court, that declarations of an agent made subsequent to an act are not admissible. The rule is different, however, when the matter in question is still pending within the jurisdiction of the agent. In the instant case this matter was still pending, and Cortez was the man who had supervision and charge of it.

(2) In the cross-examination of the plaintiff, Carter, without reserving the objection, the same identical testimony was brought out by the defendant's attorney. It has been held by this court repeatedly that, where similar testimony is brought out without reservation of the objection, it will cure the alleged objection made in chief, and make the testimony competent.

(3) Later in the case Cortez took the stand, and denied that he made the statement attributed to him by the plaintiff, but admitted that he did talk to plaintiff. If the holding of the defendant corporation, through the agency of Carter, depended solely on the statement of Cortez, and this was the only evidence of such relationship, it might be contended that this testimony could not be introduced for the purpose of contradiction. The testimony was competent, in any event, to contradict the statements of Cortez, and, there being other evidence of agency, the finding was proper under the circiimstances.

The second question is alleged error on the part of the circuit judge in refusing to direct a verdict in favor of the defendant railway corporation. There was testimony that Carter was in the automobile of his codefendant. In the case of Rurbage v. Curry, 127 S. C. 349, 121 S. E. 267, 268, the rule is stated as follows:

"When one is found in possession of the property of another, using it in the service of such other, he is presumed to be the servant of the owner. This presumption follows through the entire case and requires rebuttal evidence on the part of the owner * * * and the issue is one for the jury, " along with the other facts and circumstances of the case. Keen v. Army Cycle Co., 124 S. C. 342, 117 S. E. 531; Davis v. Littlefield, 97 S. C. 171, 81 S. E. 487; Osteen v. Oil Co., 102 S. C. 146, 86 S. E. 202, L. R. A. 1916B, 629.

In addition to Carter being in possession of the automobile of the defendant, he was also admittedly returning from an errand, where he was about his codefendant's business. All of the testimony in the case shows that this was a question which should have been submitted to the jury, and was properly submitted to the jury.

The third exception alleges error on the part of the circuit judge in charging on contributory negligence and contributory willfulness. There was no testimony in the case to show that the plaintiff was guilty in any way of negligence. He was on the right side of the road, where the law required him tobe. He was driving his team at a reasonable and moderate pace. He was struck from behind, and the only way which he contributed at all to the accident was by being there. There is no merit to this exception, and it is therefore overruled.

The fourth question presented seems to be also insufficient to reverse the case upon considering the entire charge of the circuit judge. An examination of the transcript will show that, after the court had charged the alleged erroneous request on behalf of the plaintiff, the court charged requests 4 and 5 of the defendant, which fully and correctly stated the law in behalf of the defendant on this point as favorably as it was possible to have the same stated. After the court finished charging the fifth request, an explanation of that request was given by the court, which completely cleared up the entire situation. There is seldom a charge of the circuit judge which is technically correct in all of its phases, and the proper rule of law is that, where the charge as a whole covers all points of law involved in the case, and correctly states the law with reference to these points, the same is considered to meet all the requirements of the law. A careful reading of the charge of Judge Mauldin will show that it did cover all phases of the law involved in the case, fully and correctly.

The fifth exception alleges error in the judge charging plaintiff's second request. Taking this request in connection with the entire charge, there was no error, and this exception is therefore overruled.

There is still another reason why this case should be affirmed. There is a salutary principle of law that, where this court considers that under all the facts and circumstances of the case the verdict of the jury was reasonable and proper, and that the errors are such as to be harmless, the court will not reverse the cause. The verdict in this case was reasonable and proper under the circumstances. There i was ample evidence to sustain the agency of Carter, eliminating the testimony as to the statements of Cortez. The action of the defendant Carter showed a high-handed and willful disregard of the rights of the plaintiff and others using the road lawfully. The plaintiff suffered serious and severe injuries by reason of the collision of the defendant's car with his wagon at the time and place alleged in the complaint, and the verdict was proper under the circumstances. The amount of punitive damages must have been small, if any, considering the injuries detailed by the...