Watkins v. Atlantic Coast Line R. Co.

• Decision Date: 20 April 1914
• Citation: 81 S.E. 426,97 S.C. 148
• Parties: WATKINS v. ATLANTIC COAST LINE R. CO.
• Court: South Carolina Supreme Court

81 S.E. 426

97 S.C. 148

WATKINS v. ATLANTIC COAST LINE R. CO.

Supreme Court of South Carolina

April 20, 1914

Appeal from Common Pleas Circuit Court of Marion County; H. F. Rice Judge.

Action by Oscar Watkins against the Atlantic Coast Line Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Henry E. Davis, of Florence, and L. D. Lide, of Marion, for appellant.

A. F Woods and W. F. Stackhouse, both of Marion, for respondent.

WATTS J.

This was an action for actual and punitive damages for an alleged unlawful ejection from a train by the defendant of the plaintiff, a passenger, and was tried at Marion, S. C., at the April term of court, 1913, before Judge Rice and a jury. The jury found a verdict for the plaintiff in the sum of $1,000. Before the case was submitted to the jury, and when all the evidence was in, the defendant moved the court to direct a verdict in its favor as to punitive damages on the ground that there was no evidence to support the same. This was refused. After verdict a motion for a new trial was made and refused. After entry of judgment defendant appeals.

The first exception is as follows: "(L) Because his honor erred, it is respectfully submitted, in refusing defendant's motion to strike out the testimony of the plaintiff's witness Stallings, to the effect that one Boatright attempted to bribe or improperly influence him, in that there was no evidence that Boatright was an agent of the defendant, or that the defendant subsequently ratified his acts, and the refusal to strike out such testimony was highly prejudicial to the defendant; and in refusing to grant defendant's motion for a new trial, upon the same ground and in holding that the refusal to strike out said testimony was not prejudicial to the defendant, in that plain inference from the testimony of the witness Stallings was that the said Boatright attempted to bribe or improperly influence him, and in holding as an additional reason for refusing to strike out the said testimony that it was in before objection, because the fact that the testimony of the witness was based solely upon the alleged declaration of the said Boatright did not appear until the cross-examination, when the motion to strike out was promptly made. The basis of this exception is that the judge refused to strike out the testimony of the witness Stallings that Boatright attempted to improperly influence him. No such conclusion could be drawn from his evidence, as a careful examination of it will show, and the evidence was received without objection, no motion was made to exclude or strike it out, until after cross-examination, he was allowed to say that he thought Boatright was the agent of the Atlantic Coast Line Railroad without objection, and later said that Boatright told him that he was. A statement of a person that he is the agent of another is not in itself sufficient to prove agency, but it is competent as a circumstance to be taken in connection with other evidence to prove agency. It was for the jury to say, under all the circumstances proven, as to whether Boatright was a volunteer, acting for himself, or the defendant, or some one else. There was a scintilla of evidence that he was the agent of the defendant in some capacity or other sufficient for the jury to determine whether he was or not. It was within the power of the defendant to have rebutted the evidence that he was the agent of the defendant, and shown that he was not, but the defendant failed to rebut, deny, or explain, when it introduced evidence, his connection, if any, with the case. Evidence introduced, without objection, becomes pertinent, and cannot be stricken out on motion. In this case the evidence was received unobjected to, and not until cross-examination was entered into was the motion to strike out made, and that was when witness said that he did not know who Boatright was working for, but he told him he was working for the defendant. While this was not sufficient to prove agency, it was a circumstance, and if, connected with other evidence, could establish the fact of agency, it would have been competent. As it was received without objection, we think his honor was not in error. Ingram v. Sumter Music House, 51 S.C. 282, 28 S.E....