Weeks v. Carolina Power & Light Co.

• Decision Date: 11 April 1930
• Docket Number: 12889.
• Citation: 153 S.E. 119,156 S.C. 158
• Parties: WEEKS v. CAROLINA POWER & LIGHT CO. et al.
• Court: South Carolina Supreme Court

153 S.E. 119

156 S.C. 158

WEEKS v. CAROLINA POWER & LIGHT CO. et al.

No. 12889.

Supreme Court of South Carolina

April 11, 1930

Appeal from Common Pleas Circuit Court of Sumter County; C.J Ramage, Judge.

Action by Robert S. Weeks, by J. H. Weeks, his guardian ad litem against the Carolina Power & Light Company and another. Judgment for plaintiff, and the named defendant appeals.

Affirmed.

Dargan & Paulling, of Darlington, and Lee & Moise, of Sumter, for appellant.

Epps & Levy and Cuttino & Cuttino, all of Sumter, for respondent.

BLEASE J.

This action on tort was brought on behalf of Robert S. Weeks seventeen years of age, against Carolina Power & Light Company, a corporation, and M. A. Doughty, local manager at Sumter of the power company. The trial in the court of common pleas for Sumter county, before his honor, Circuit Judge Ramage, and a jury, resulted in a verdict and judgment in favor of the plaintiff against Carolina Power & Light Company alone, for the sum of $3,500 actual damages, and $5,000 punitive damages.

The defendant the power company has appealed from the verdict and judgment against it on seven exceptions, but, as only four questions are raised, some of the exceptions may be grouped in our disposition of them.

We take up first the third exception, which imputes error to the trial judge because he charged the jury to the effect that they might render a verdict against the power company alone, and in favor of the defendant Doughty, or against Doughty alone, and in favor of the power company. The appellant insists there was no allegation in the complaint of separate and independent acts of negligence on the part of the two defendants, but that, on the contrary, the complaint alleged that the negligence charged against the two defendants was the negligence of Doughty, the agent of the power company, and that the power company could not be held liable if Doughty was not first liable.

It is our opinion that the appellant is mistaken as to the allegations of the complaint. In paragraph V of that pleading, negligence was alleged against both the defendants as to the manner of stringing certain wires carrying electric current. The plaintiff charged that these wires were strung " under the actual supervision and direction of the defendant M. A. Doughty, and with the help of a number of other servants of the defendant company; *** and the defendants thereafter maintained said wires in this dangerous position." In paragraph VI, it was alleged: "Although the defendants knew that said wires would be charged with electricity for the creation of light and power, and would be highly dangerous to any one coming in contact with them, etc., *** still notwithstanding all this, they used for said construction uninsulated wires and used absolutely no protection against injury to persons using said verandas, and gave no warning of said danger." Referring to previous injuries, alleged to have occurred because of the negligent placing and maintaining of the wires, which caused plaintiff's alleged injuries, it was stated in paragraph VII of the complaint: " That these facts had been reported to the defendants, but they had done nothing to prevent their recurrence and had provided no warning or protection against injury to the public." In paragraph XI, the plaintiff charged: "That all of said acts and omissions on the part of the defendants and the agents and servants of the defendant company, were negligent, wilful, wanton and grossly negligent, and they caused and contributed to the injury aforesaid of Robert S. Weeks, both jointly and concurrently."

There was some evidence in the case, adduced by the defendants from the testimony of the defendant Doughty, tending to show that the negligent construction and maintenance of the electric wires, with which the plaintiff came in contract, and as a result of which contact he suffered his injuries, were due to the acts of Mr. Bullard, a construction engineer of the power company, who, in construction work, was higher than Doughty; and that Doughty received instructions from the company that Bullard was coming to make the changes in the wires, and that Bullard could not have done this without the authority of "people higher up." There was evidence also going to establish the fact that if the wires had remained where Doughty had caused them to be placed, plaintiff's injuries would not have been sustained; and these injuries were entirely due to wires being placed where Bullard, the construction engineer, had directed them to be placed.

Undoubtedly, as the appellant contends, the law is that where a master and his servant are sued together for the same act of negligence or willful tort, and the master's liability rests solely on the servant's conduct, a verdict against the master alone is illogical and cannot stand. Johnson v. A. C. L. Railroad Co., 142 S.C. 125, 140 S.E. 443, and cases there cited.

Under the stated principle of the Johnson Case, if the proof in this case had shown that the plaintiff's injuries were due solely to an act of negligence or willful tort of Doughty, the agent of the power company, the jury could not have rendered a verdict against the power company alone.

But this case is not controlled alone by the rule of law to which we have referred, for some reasons already pointed out. And another principle, well recognized by this court, is involved. If a delict be charged against both the master and the servant, or against the master and the servant and other agents of the master, and it is shown by the evidence that the delict was committed by the master through some other servant than the servant sued with the master, a verdict against the master alone may be rendered. Rhodes v. Southern Railway Co. et al., 139 S.C. 139, 137 S.E. 434, and cases there cited.

After the jury had been considering the case for some time, they came into court and asked, in case they found a verdict against the defendants, could the defendants be separated. The foreman inquired: "In other words, can a verdict be found against one exclusive of the other?" The trial judge, in reply to that inquiry, instructed the jury as follows: "All I can tell you, gentlemen, is that you go and find such verdict against one or more of the defendants, or none of them, as you see fit from the testimony. In other words, it is a matter for you entirely."

By its exceptions 1 and 2, the appellant contends that the charge was erroneous, as that was a matter of law to be decided by the court, and not one for the determination of the jury, except under instructions from the court as to what the law was. And the appellant raises in its second exception practically the same question referred to in its third exception, already disposed of.

What we have said as to the third exception covers almost sufficiently the matters raised in these two exceptions.

If there had been no allegation in the complaint, or no evidence in the case, justifying a verdict against one of the defendants alone, it would have been a matter of law, as argued by the appellant, for the court to declare that the jury could not render a verdict against the power company, unless a verdict against its agent, Doughty, was also returned. But when the pleadings and the evidence both warranted a finding against both defendants, or against only one of the defendants, then the judge was absolutely correct in submitting the verdict to be returned to the wisdom of the jury, under the law as he had declared it and the evidence adduced in the case. The authorities already cited sustain this holding.

The fourth exception charges error because the trial judge refused to instruct the jury that no punitive damages could be recovered, as there was no evidence of willfulness on the part of the defendants. Exception 5 complains of error in refusing to direct a verdict as to punitive damages in favor of both defendants. The sixth exception is based on the refusal of the trial judge to grant a new trial, on the ground that there was no proof of willfulness or wantonness on the appellant. These exceptions may be considered, as they were argued, at one time. They require a brief review of the evidence in the case, which supported the allegations of the complaint. The evidence, of course, so far as we are concerned, must be looked upon in the light most favorable to the plaintiff.

" Pocalla," operated by M. H. Beck, is a famous and attractive resort, near the city of Sumter, to which are attracted thousands of persons, old and young, men, women, and children. There are camping grounds, picnic grounds, a large swimming pool, and a dance hall. The public generally is invited and attracted. The principal building at the resort consists of a store building downstairs, with a dance hall upstairs. On either side of the dance hall is a veranda, extending the length of the dance hall, and on a line with the front of the building, and these verandas are commonly used by the public who come for amusement and sight-seeing. The appellant power company furnished electric light and power to Pocalla, and Mr. Doughty, a defendant, is its local manager at Sumter. Originally, the necessary wires were placed below the floor of the veranda, where no one could reach them without getting over the railing of the veranda and reaching around the end of the floor. Mr. Doughty thought that a perfectly safe place for the location of the wires, and, so far as the evidence disclosed, his judgment was correct. The wires at that time were not insulated, and, perhaps, it was not necessary for them so to be. About three months after the placing by Mr. Doughty, Bullard, a construction engineer of the appellant, inspected the wires; determined that they had not been put up...