Bell v. Atlantic Coast Line Railroad , 202 S.C. 160 ( 1943 )

I am of the opinion that the lower Court should have granted the motion made by the defendant for a directed verdict as to punitive damages. For this reason I concur in the disposition made of this question by Mr. Chief Justice Bonham in his opinion.

I regret, however, that I am unable to agree with his holding that other issues raised by the exceptions as grounds of appeal cannot be considered because they were not included in the motion for a new trial made by the appellant in the lower Court. It is true that the defendant moved for a new trial solely upon the ground that a finding of punitive damages was unwarranted by the evidence, but this, I think, does not preclude the appellant from presenting for appellate review the other grounds covered by its exceptions. These exceptions assign error because of the refusal of the trial Court to direct a verdict on the ground that there is no evidence of actionable negligence on the part of the defendant; and failure to charge that neither Section 8433 nor Section 8473 of the Code applies to this cause since the sole purpose of these sections is to protect the members of the public in the use of the crossing.

By virtue of statutory provisions or rules of Court in many jurisdictions, it is necessary that errors occurring during the progress of the trial shall be made the basis of a motion for a new trial as a prerequisite to the consideration of such errors on appeal. 3 C.J., § 894, page 960; 4 C.J.S., Appeal and Error, § 352.

In South Carolina, however, we have no statutory provision or rule of Court governing such practice; and it has been held in many cases that errors committed by the Judge during the progress of the trial and duly excepted to at the time may be assigned as error in the appellate Court in the absence of a motion for a new trial. Even where a motion for a new trial is made, grounds other than those therein stated, may be reviewed and passed upon on appeal.

It was held in Redding v. South Carolina R. Co., 5 S.C. 67: "The various matters presented by the brief, as the record of proceedings in the Circuit Court upon a motion there for a new trial, are unimportant here. It was not necessary that the application for a new trial, so far as it was based on matters of law alone, should be made, in the first instance, to the Circuit Court. Such matters come properly before us by appeal without previous application to the Circuit Court. The motion before us comes up upon the record of the proceedings upon the trial of the cause, which, in the present instance, presents the single question, whether there was error in the charge and rulings of the Judge materially prejudicial to the appellants."

Mr. Chief Justice Stabler, in Hubbard v. Rowe, 192 S.C. 12,5 S.E.2d 187, 189, discussing at considerable length this question of appellate procedure, reviewed the prior decisions, and had this to say:

"There are thirty-one exceptions, but counsel for the appellant have reduced the questions for decision to sixteen, all of which we think are fairly presented by the appeal. Before beginning our consideration of them, however, we will dispose of the following contention of the respondent: ``The rule that in order to carry to this Court objections to rulings made in the course of the trial, such objections must first be presented to the trial Court on a motion for a new trial, and that the stated grounds of such a motion delimit the questions that may be raised on appeal (as to matters occurring during the trial) has been frequently declared by this Court. The application of that rule to the present case eliminates twenty-six of the exceptions (including subdivisions) in this case.'

"In matters of appeal, so far as it appears, all that this Court has ever required is that the questions presented for its decision must first have been fairly and properly raised in the lower Court and passed upon by that Court. Of course, as to questions specifically affecting the verdict, or other questions not specifically ruled on, the Court below must of necessity be given an opportunity on motion for a new trial of passing upon and correcting such matters before they can or will be reviewed by this Court on appeal. The decided cases relied on by the respondent go no further than that.

"In Detheridge v. Earle, 3 S.C. 396, cited by appellant, syllabus 2, which correctly states the holding of the Court, reads as follows: ``For error of law, a new trial may be granted on appeal from the judgment, though no motion for a new trial was made before the Circuit Judge.'

"In Brice v. Hamilton, 12 S.C. 32, decided in 1879, where a similar question was considered, the Court said: ``A general objection is made by the defendants to the effect that no application was made to the Circuit Judge for a new trial, but the appeal is directly from the judgment, and, therefore, as they contend, the exceptions taken at the trial cannot be heard. There is no ground for such an objection. It was competent for the plaintiffs to have moved before the Circuit Court for a new trial, but as the objections to the verdict relate to matters of law alone, and could be heard in this Court, the appellants were not bound to submit them to the Circuit Judge, on a motion for a new trial, before appealing to this court. There is no provision of the code exacting any such condition to an appeal to this court, and no antecedent practice from which such a rule could be inferred. An appeal from a judgment involves any intermediate order involving the merits and necessarily affecting the judgment (Code, § 11), and this includes all rulings and charges material to the judgment.'

"The rule as thus stated in the Brice case has never been changed, either by statute or otherwise, as far as the cited decisions disclose. The claim of the respondent, therefore, is held to be without merit."

In a later decision, Cummings v. Tweed, 195 S.C. 173,10 S.E.2d 322, 327, the Court, through Acting Associate Justice Lide, announced the same principle in the following words: "We do not agree with counsel for the respondent that the failure to include this (failure to charge) as a ground of the motion for a new trial precludes the appellant from raising the question on appeal; * * *."

An examination of our cases shows no departure from what appears to have become the settled practice in this State, until the case of Dinkins v. Robbins, 200 S.C. 475,21 S.E.2d 10, 12. In that case it was said: "Furthermore, although appellants have filed fifteen exceptions, a number of these cannot be considered here for the reason that they specify as error certain charges made, and the refusal of certain requests to charge, despite the fact that such commissions and omissions were not included among the grounds of the motion for a new trial."

The foregoing case (Dinkins v. Robbins) is cited in the opinion of Mr. Chief Justice Bonham, with the added citation of Griffin v. State Highway Department, 170 S.C. 403,170 S.E., 459, 460. But I do not think that the Griffin case supports the proposition that all grounds for appeal must be stated in a motion for a new trial before they may be considered by the appellate Court. In the Griffin case the appellant asked for a reversal of the judgment on the ground that the jury disregarded the instructions of the Court, and rendered a verdict against the Highway Department through sympathy for the plaintiff and her children. It was held that "as this question was not raised in the court below on motion for a new trial, it is not properly before us."

But the foregoing holding is not at all inconsistent with the previous decisions of the Court, as shown by the cases reviewed in Hubbard v. Rowe, supra, where it is stated: "Of course, as to questions specifically affecting the verdict or other questions not specifically ruled on, the Court below must of necessity be given an opportunity on motion for a new trial of passing upon and correcting such matters before they can or will be reviewed by this Court on appeal."

It seems to me clear that the rule announced in Dinkinsv. Robbins, supra, is altogether too broad, and is out of line with all of our previous decisions, and should not be followed. I do not believe that by this decision the Court intended to abandon a long established appellate practice and to overrule all of the cases which are hereinabove cited. Furthermore, in Dinkins v. Robbins it was not necessary to pass upon this question. The case was reversed upon other grounds.

In the light of the foregoing discussion, it is my opinion that all questions raised by the exceptions should be passed upon. Therefore, it is proper to deal with the assignments of error relating to actionable negligence and refusal to charge defendant's request that the two Code sections have no application to the case.

Upon a careful consideration of the record, I am satisfied that the Court committed no error in refusing to direct a verdict based upon the ground that the testimony showed no actionable negligence. In my view, the testimony supports the verdict for actual damages.

I think, too, that the sections of the Code referred to are applicable to the issues in this case, and that the trial Judge committed no error in refusing to charge the contrary. In addition to the full summary of the evidence stated in the opinion of Mr. Chief Justice Bonham, this appears in the narrative statement of the plaintiff's testimony: "On the night of 28th November, 1941, witness (the plaintiff) was on duty. He came up on the Sumter side of the crossing and stopped for a freight train to pass at a point twenty or twenty-one feet from the nearest track. ``There was a freight train coming, and I stopped for the train to pass.'"

From this, it may reasonably be inferred that the plaintiff was about to use the crossing, and was deterred from so doing only by reason of the oncoming freight train. In the light of this testimony, it may be inferred that the plaintiff's injury was caused by his exposure to a hazard which it was the purpose of the statute to protect him from.

The common law gives a right of action to everyone sustaining injuries caused proximately by the negligence of another. The case at bar seems to be based both upon the common law and upon the breach of a statutory duty. Negligence is the breach of a legal duty, and it is immaterial whether the duty is one imposed by the rule of the common law requiring the exercise of ordinary care not to injure another, or is imposed by a statute designed for the protection of others. In either case, the failure to perform the duty constitutes negligence, and renders the party liable for injuries resulting therefrom. All that the statute does is to establish a fixed standard by which the fact of negligence may be determined. Crawford v. AtlanticCoast Line R. Co., 179 S.C. 264, 184 S.E., 569.

Under the opinion of the Chief Justice, the verdict for actual damages stands because exceptions attacking it were not deemed properly before the Court. In my view, the judgment as to actual damages must stand, but upon a different theory: The exceptions were properly taken, but in my opinion they are without merit. As heretofore stated, the trial Judge should have directed a verdict in favor of the defendant as to punitive damages.

A majority of the members of the Court concurring, it is the judgment of the Court that the judgment below is affirmed as to actual damages, and reversed as to punitive damages.

MESSRS. ASSOCIATE JUSTICES BAKER and STUKES, and CIRCUIT JUDGE L.D. LIDE, ACTING ASSOCIATE JUSTICE, concur.