Toole v. Toole, 19588

Citation260 S.C. 235,195 S.E.2d 389
Decision Date16 March 1973
Docket NumberNo. 19588,19588
CourtUnited States State Supreme Court of South Carolina
PartiesRosa Lee TOOLE, as Administratrix of the Estate of Jimmie Toole, Appellant, v. Ada Mae TOOLE and Howard Toole, Jr., Respondents.

F. Mikell Harper, Williston, Dufour & Dufour, Aiken, for appellant.

Henderson, Salley, Bodenheimer & Lynn, Aiken, for respondents.

BUSSEY, Justice:

In this guest-passenger, wrongful death action the jury returned a verdict for actual damages in the amount of $2,500.00. Contending that the verdict was 'completely and wholly inadequate', the appellant-plaintiff promptly moved for a new trial, and the appeal is from the denial of such motion. Relative to the damages involved, we quote the following from the agreed statement of the case:

'Jimmy Toole was eleven years of age at the time of the collision, and was survived by his parents, Rosa Lee Toole, age 49, and Howard Toole, age 51, the statutory beneficiaries under the South Carolina Wrongful Death Statute. He was large for his age, weighing more than 100 pounds, and was described as a friendly boy with a lovely disposition, who attended the fourth grade at Oakwood Elementary School, and who liked school and attended regularly. He was in good health except for having had a kidney removed as a result of an accident several years before, and was not restricted in any way in his activities because of this operation. The testimony showed that he helped clean house, wash dishes and iron clothes, and that he helped with the farming which was done on the premises owned by his parents. At the time of decedent's death, his parents had nine living children, including the decedent, five of whom were grown and emancipated and lived in nearby communities. Two other children had died of natural causes at ages 5 and 8 respectively. Decedent was the next to the youngest child. The funeral bill for to Nine Hundred Sixteen and 05/100 ($916.05) Dollars.'

It is well settled in this State that in actions for tort, where the verdict is grossly inadequate, a new trial may and should be granted for the same reasons and under the same principles as govern when a verdict is similarly excessive. Where a verdict gives grossly inadequate damages, it is as much a ground for a motion for a new trial by the plaintiff as a grossly excessive verdict would be a ground for such a motion by a defendant.

This Court has repeatedly quoted with approval from McDonald v. Walter, 40 N.Y. 551, the following language:

'A verdict for grossly inadequate amount stands upon no higher ground in legal principle, nor in the rules of law and justice, than a verdict for excessive or extravagant amount. It is doubtless true that instances of the former occur less frequently, because it is less frequently possible to make it clearly appear that the jury have grossly erred. But when the case does plainly show such a result, justice as plainly forbids that the plaintiff should be denied what is his due, as that the defendant should pay what he ought not to be charged.'

See Bodie v. Charleston & W.C.R. Co., 66 S.C. 302, 44 S.E. 943, 947; McKibben v. Anthony, 185 S.C. 459, 194 S.E. 446; Fuller v. Bailey, 237 S.C. 573, 118 S.E.2d 340.

Motions for a new trial on the ground of either excessiveness or inadequacy are addressed to the sound discretion of the trial judge. His exercise of such discretion, however, is not absolute and it is the duty of this Court in a proper case to review and determine whether there has been an abuse of discretion amounting to error of law. Williams v. Williams, 246 S.C. 158, 142 S.E.2d 858. The respondents contend that the question of whether the verdict was so grossly inadequate as to indicate 'caprice, prejudice, passion or other improper considerations on the part of the jury' is not presently before us because counsel for the plaintiff-appellant did not use those magic words in making his motion for a new trial.

An analysis of our pertinent decisions suggests that such contention is simply an exercise in semantics without any significance of substance. Appropriate, we think, is the following comment in the opinion of Grimsley v. Atlantic Coast Line R. Co., 189 S.C. 251, 1 S.E.2d 157, 161:

'One is here reminded of a saying of that great Judge, Mr. Justice Cardozo: 'The law has outgrown its primitive stage of formalism, when the precise word was the sovereign talisman and every slip was fatal.' Wood v. Duff-Gordon, 222 N.Y. 88, 91, 118 N.E. 214.'

Counsel making the motion said that 'the amount of the verdict is inadequate, completely and wholly inadequate, for the wrongful death of the child' and that the jury 'did not properly understand the elements of damage in considering the case.' While counsel did not use the words 'caprice, passion or prejudice', 'a verdict may properly be said to be capricious if it is against the overwhelming weight of the evidence.'...

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30 cases
  • Ravan v. Greenville County
    • United States
    • South Carolina Court of Appeals
    • February 17, 1993
    ... ... Clarkson, 267 S.C. 121, 126, 226 S.E.2d 696, 697 ... Page 302 ... (1976); Toole v. Toole, 260 S.C. 235, 239, 195 S.E.2d 389, 390 (1973). The test which guides this Court in the ... ...
  • Griffin v. Griffin
    • United States
    • South Carolina Court of Appeals
    • March 29, 1984
    ...in the exercise of his discretion, may grant a new trial upon the ground that the verdict is grossly inadequate. Toole v. Toole, 260 S.C. 235, 195 S.E.2d 389 (1973); Fuller v. Bailey, 237 S.C. 573, 118 S.E.2d 340 (1961). The exercise of that discretion, however, may be reviewed by the Court......
  • Krepps by Krepps v. Ausen
    • United States
    • South Carolina Court of Appeals
    • November 4, 1996
    ...show the jury was moved by considerations not founded on the evidence and/or the instructions of the trial judge. Toole v. Toole, 260 S.C. 235, 195 S.E.2d 389 (1973). heard the evidence and is more familiar with the evidentiary atmosphere at trial, possesses a better-informed view of the da......
  • Stevens v. Allen
    • United States
    • South Carolina Supreme Court
    • August 7, 2000
    ...314 S.C. 525, 431 S.E.2d 555 (1993). 3. Notably, Woodbury specifically declined to adopt the South Carolina approach of Toole v. Took, 260 S.C. 235, 195 S.E.2d 389 (1973) (holding jury's $2500.00 verdict in the plaintiff's wrongful death action for the death of their 11 year old son was who......
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