Watts v. South Bound R. Co.

• Decision Date: 28 March 1901
• Citation: 38 S.E. 240,60 S.C. 67
• Parties: WATTS v. SOUTH BOUND R. CO.
• Court: South Carolina Supreme Court

38 S.E. 240

60 S.C. 67

WATTS v. SOUTH BOUND R. CO.

Supreme Court of South Carolina

March 28, 1901

Appeal from common pleas circuit court of Barnwell county; George W Gage, Judge.

Action by George W. Watts, Jr., against the South Bound Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

S. G Mayfield and W. H. Lyles, for appellant.

Bellinger Townsend & O'Bannon and P. H. Nelson, for respondent.

JONES J.

This appeal is from a judgment on a verdict against defendant for $7,500 in an action for damages for alleged negligence in leaving open and unguarded a cut across Wayne street in the city of Columbia, into, which the plaintiff alleged he fell, and was thereby injured, on the 19th of January, 1900, while walking along said street at night, in the darkness, and without warning of the cut.

The first five exceptions relate to rulings on the admission and exclusion of certain testimony and are as follows:

"(1) Because, against the objection of the defendant, the plaintiff was allowed to testify what he did with the money earned by him while serving in the army." This exception cannot be sustained: First, because it fails to point out any specific rule of evidence which was violated; and, second, if it was merely irrelevant, much must be left to the discretion of the trial judge in the admission of such testimony, and his ruling thereon will not be reversed, and a new trial granted, unless it clearly appears to have been harmful to appellant; which does not at all appear in this case.

The second exception is: "Because, against the objection of the defendant, the plaintiff was allowed to testify that he had been discharged from the army, and had a certificate of discharge." This exception is likewise faulty in failing to assign specific error, and should, for that reason, be overruled. Furthermore, we may say that, plaintiff having testified without objection that he was examined when he entered the army and examined when he came away, we cannot see that any prejudice could result to defendant by the testimony that he had a certificate of discharge, even though there was an issue whether the injury from which plaintiff claimed to be suffering existed, in part at least, before the alleged fall into the cut, as the mere having a certificate of discharge could add nothing to the testimony already admitted without objection, there being no suggestion, even, that plaintiff returned from the army without leave.

The third exception is: "Because, upon objection of the plaintiff, his honor refused to allow the witness Dr. J. J. Watson to testify in response to the question: 'When Dr. Guerry came in, was any remark made about his condition of the back? What did Dr. Guerry say?"' This exception is also too general in failing to designate the rule of evidence violated. If we must speculate as to the design of the proposed statement by Dr. Guerry, that it was made in the presence of the plaintiff, and was sought to be introduced in order to create an inference that plaintiff, by his silence, admitted the truth of the statement, we may say that, in order to warrant the admission of such testimony, it ought to be made to appear that the statement was made under circumstances naturally calling for a statement or denial from plaintiff, and that plaintiff was so situated as to hear, comprehend, and reply to such statement. It seems that the proposed statement was made by one physician to another, while in the room where plaintiff was lying, shortly after the alleged injury, either under the influence of morphine, or suffering from pain which morphine did not relieve. The judge ruled that the testimony was irrelevant, and we cannot, from the record, say that it was relevant and material.

The fourth exception is: "Because, upon objection of the plaintiff, his honor, the presiding judge, ruled out the question to the witness Dr. J. J. Watson, 'What did you say to Dr. Guerry, as to the condition of that back, in Mr. Watts' presence?"' This exception is also too general, and for this reason, as well as for reasons stated above in reference to the third exception, must be overruled.

The fifth exception is as follows: "(5) Because, upon the objection of the plaintiff, his honor refused to allow the witnesses J. P. Wade and Allen Williams to testify as to what was said to them by the person whom they saw going to the cut on the night of the accident, and who was supposed to be plaintiff." We overrule this exception (1) because it does not point out what rule of law was violated, (2) because the witnesses failed to identify the "person" they saw going into the cut as the plaintiff, and (3) because the respondent withdrew his objection to the testimony of the witness Williams.

The sixth and seventh exceptions relate to the charge to the jury, and are as follows: "(6) Because his honor charged the jury as follows, to wit: 'I illustrate it in this way: If you are driving your buggy, and by the failure on your part to exercise due care (that is, the care which a person of ordinary intelligence and prudence would exercise) you struck your neighbor's buggy, and broke it, you are liable for the damage (the actual damage) to the buggy; but if you do it willfully, out of a wicked heart, out of utter carelessness of the rights of your neighbor, you will be liable not only to the actual damage to the buggy, but for such other damages as will amount to punishment,'--thereby indicating that it was within the province of the jury, to award damages to the plaintiff against the defendant as punishment for the wrong done. (7) Because his honor likewise charged the jury as follows, to wit: 'And that's what a jury are allowed to inflict upon parties who do willful acts; not only the lack of ordinary care, but willful; if it comes out of that sort of heart, and injury results from that sort of spirit, the jury may give such vindictive damages as are proper in their judgment, but not in compensation for the man who brings the suit, but as punishment for the man who did the wrong,'--thereby indicating that it was within the province of the jury to award to the plaintiff damages, not as satisfaction of the wrong committed to him, but as a punishment to the defendant committing the wrong, when it is respectfully submitted that all punishment under the constitution and laws of the state of South Carolina are matters to be visited on behalf of the public, and that one's liability therefor is to be determined only according to the methods prescribed for criminal practice." Appellant properly admits that exemplary or punitive damages may be awarded in this state for injuries willfully inflicted, but contends that such damages can only be awarded to vindicate the right of the plaintiff, and only in case actual injury has been inflicted; and that, in the absence of actual injury to plaintiff, such damages cannot be given merely in punishment for a wrong to the public. The appellant is manifestly correct in this view, since, if no actual injury has been inflicted on the plaintiff, he has no cause of action upon which any damage may be awarded. But we do not think the charges complained of violate the principle contended for. The charge quoted in the sixth exception shows by the illustration given and the language used that the judge deemed it essential that actual damages be sustained by the plaintiff to justify a recovery, and in the charge quoted in the seventh exception it is also made clear that the judge instructed the jury...