Simpson v. Mills Mfg. Co. , 104 S.C. 78 ( 1916 )

The opinion of the Court was delivered by

Mr: Justice Watts.

This was an action by the plaintiff against the defendant for $5,000 alleged actual and punitive damages. The complaint alleges that plaintiff is a widow and the mother of Marshall Simpson, a minor son 17 years of age, who, on March 21, 1914, and some time prior thereto, was employed by the defendant at $1.50 per day. On that day, March 21, 1914, plaintiff moved to another manufacturing village, and directed defendant to cease the employment of her minor son, which instructions were disregarded by the defendant. The answer denied notice, but alleged plaintiff consented for her son to remain in the employ of the defendant, and alleged that the minor had the right to work for his own living, as the plaintiff had failed to furnish him a home and support. At the close of the plaintiff’s evidence a motion was made for a nonsuit as to punitive damages, as there was no evidence to sustain the allegation of wilfulness or warn tonness, and also a motion for nonsuit as to the actual damages. These motions were refused. At the close of all the evidence a motion was made by the defendant for a directed verdict in its behalf, which was refused. The jury found a verdict for the plaintiff for $175. After entry of judgment, defendant appeals.

The first exception complains of error in not granting a nonsuit'as tó punitive damages and in failing to direct a verdict for defendant as to.punitive damages.

1, 2 A reading of the complaint shows that the action was under the statute, and not under the common law. The plaintiff could have alleged such facts so as to try the case under the statute or common law, but there is no allegation as to loss of time, affection, being deprived of his company and companionship, and no allegation of enticement, and under the allegations of the complaint she was only entitled to recover the penalty provided for by statute. Neither the allegation nor proof in the case entitled her to recover anything other than the penalty provided for by the statute. His Honor was in error in not granting the nonsuit as to punitive damages. His Honor was in further error in the particulars complained of in exceptions 3, 4, and 5, as they were not responsive to the allegations of the plaintiff’s complaint.

Judgment reversed. New trial granted.

Mr. Chief Justice Gary and Messrs. Justices Fraser and Gage concur in the opinion of the Court. Mr. Justice Hydrick dissents.

Footnote. — As to common law action by parent for enticement of minor from him, see Webb v. So. Ry. Go., 103 S. C. —, 88 S. E. 297, and references in footnote.