Hughey v. Ausborn ( 1967 )

Bussey, Justice

(dissenting) :

While there is admittedly some authority, from other jurisdictions, supporting the conclusions reached in the opinion of the Chief Justice as to the punitive damage aspects of this case, the issues involved are not, in my view, ones of completely novel impression in this state, and the result reached is not in harmony with the principles of law firmly established by prior decisions of this court.

When basic and fundamental differences between the established law of this jurisdiction and that of the jurisdictions from which authorities are cited are considered, such authorities become of very doubtful persuasive value. To briefly state certain well established basic principles in this state, punitive damages are regarded not only as a punishment for wrong, but as a vindication of private right, and when one proves a wanton, willful or malicious violation of a right, he is entitled to punitive damages as a matter of law. The rendition of punitive damages under such circumstances is a part of the established public policy of this state and such damages involve a compensatory aspect. Hicks v. Herring, 246 S. C. 429, 144 S. E. (2d) 151; Davenport v. Woodside Cotton Mills Co., 225 S. C. 52, 80 S. E. (2d) 740; Rogers v. Florence Printing Co., 233 S. C. 567, 106 S. E. (2d) 258.

Contrary to the rule prevailing in many jurisdictions, in this state the plaintiff’s cause of action for the injury to his child was completely separate from and independent of the child’s cause of action for damages, Hall v. Waters, 132 S. C. 117, 128 S. E. 860, and his cause of action for loss of consortium was completely separate from and independent of his wife’s cause of action for her personal injuries, Priester v. Southern R. Co., 151 S. C. 433, 149 S. E. 226. Briefly stated, under our well established law, when the defendant injured the wife and the child of the plaintiff, the rights of the plaintiff were violated and completely independent causes of action arose. Simply stated, such causes of action arose because his rights with respect to his wife and child were violated. Can it be soundly argued that a man is entitled to recover punitive damages when his rights as to his horse, his cow or his wagon, are willfully violated, but may have no vindication of his willfully and wantonly violated rights as to his wife or his child?

Such an argument is, I think, soundly refuted by a long line of decisions in this state. As was cogently said in Johnson v. Atlantic Coast Line R. Co., et al., 142 S. C. 125, 140 S. E. 443, 447,

“It follows that the state, as the guardian and protector of the rights of her citizens, is therefore interested in the assessment of punitive damages, and that all the people may look to the law of their land to defend them from wrongful invasions of both their personal and property rights.”

The case of the plaintiff as parent is, I think, not distinguishable in principle from the decision of this court in Webb v. Southern R. Co., 104 S. C. 89, 88 S. E. 297, and his case as husband is, in principle, not distinguishable from the decision of this court in Fennell v. Littlejohn, 240 S. C. 189, 125 S. E. (2d) 408.

In the Webb case a recovery of both actual and punitive damages was affirmed in favor of a mother whose son had been induced, against her will, to work in dangerous employment and sustained an injury by a train, with resulting, or consequential, damage to the mother.

The Fennell case was a suit for loss of consortium, and other allowable elements of damage, based on criminal conversation, in which a verdict for actual and punitive damages was rendered and affirmed.

While admittedly the causes of action were different in each of the cited cases, the basis upon which punitive damages rested in each of them was the willful and wanton invasion of the rights of the respective plaintiffs and not the particular means or instrumentality by which such rights were invaded.

As long as plaintiff’s rights were wilfully and wantonly invaded and violated by the defendant, I think it makes no difference whether such rights were invaded by the use of an automobile, as here; invaded by enticement, as in Fennell; or invaded by enticement, with the damage being actually inflicted by a train, as in Webb. Entitlement to punitive damages arises out of the willful and wanton violation of a right and not out of the means or instrumentality used to violate such right and/or inflict damage.

For the foregoing reasons, I respectfully dissent.