Sparks v. Atlantic Coast Line R. Co.

• Decision Date: 09 March 1918
• Docket Number: 9920.
• Parties: SPARKS v. ATLANTIC COAST LINE R. CO. ET AL.
• Court: South Carolina Supreme Court

95 S.E. 344

109 S.C. 145

SPARKS v. ATLANTIC COAST LINE R. CO. ET AL.

No. 9920.

Supreme Court of South Carolina

March 9, 1918

Appeal from Common Pleas Circuit Court of Sumter County; George E Prince, Judge.

Action by W. E. Sparks, as administrator of Eugene Sparks, deceased against the Atlantic Coast Line Railroad Company and another. Judgment for defendants, and plaintiff appeals. Affirmed.

Gary C.J., and Watts, J., dissenting.

L. D Jennings and A. S. Harby, both of Sumter, for appellant.

P. A. Willcox, of Florence, and Mark Reynolds and L. W. McLemore, both of Sumter, for respondents.

HYDRICK J.

Plaintiff brought this action for damages against the railroad company and L. C. Jones, one of its passenger conductors, alleging that the conductor, or some other agent of the company, threw plaintiff's intestate off a moving train and thereby caused his death. The jury returned a verdict against the railroad company alone, and the judgments were entered thereon in favor of plaintiff against the company, and in favor of Jones against the plaintiff. The company appealed from the judgment entered against it, but plaintiff did not appeal from the judgment entered against him in favor of Jones. On hearing the company's appeal, this court reversed the judgment against it, and ordered a new trial on the ground that the liability of the company was predicated solely upon the alleged wrongful act of Jones, and, as the jury had found in favor of Jones, thereby acquitting him of any wrongful act, the company was necessarily acquitted of any wrongful act done through the agency of Jones. 104 S.C. 266, 88 S.E. 739.

When the case went back to the circuit court, the company, by supplemental answer, pleaded the judgment in favor of Jones as a bar to the further prosecution of the action. The court sustained the plea in so far as the liability of the company depended upon the acts of Jones, holding that Jones and his alleged wrongful acts were out of the case, as the verdict and judgment in his favor amounted to an adjudication that he was guilty of no actionable wrong. But the court further held that, as there was an allegation in the complaint that plaintiff's intestate was thrown from the train by Jones, or some other agent of the defendant company, the judgment in favor of Jones did not preclude the plaintiff from proving that the death of his intestate was caused by the wrongful act of some other agent or servant of the company for whose act the company would be liable. Under this ruling, plaintiff introduced testimony tending to prove that the train porter assisted Jones in throwing plaintiff's intestate off. Jones and the porter both denied that they had put him off, and the testimony of several other witnesses examined on behalf of the company, tended to prove that intestate was not on the train the night that he was killed.

The court instructed the jury that the company was liable for the wrongful acts of the porter, within the scope of his duty, and that it would be no defense to the company that he was commanded thereunto by the conductor, a superior authority, since he was not bound to obey an order to do that which was wrong. The jury returned a verdict for defendant, and from judgment thereon, plaintiff appealed.

Appellant contends that the legal effect of the reversal of the judgment against the company by this court on the first appeal was to reverse also the judgment that had been entered in favor of Jones, and to set aside the verdict, and therefore a new trial of all the issues should have been had just as if there had been no former trial. That contention overlooks the fact that Jones was not a party to the former appeal, as no notice of the appeal had been served upon him. Therefore this court was without jurisdiction to...