Enlee v. Seaboard A.L. Ry.

June 29, 1918. The opinion of the Court was delivered by This is an appeal from a judgment of $100 actual and $500 punitive damages based on the verdict of a jury of Richland county.

Plaintiff contended that on July 24, 1916, he went to defendant's depot in Columbia and paid the agent $2.50 for two tickets (for himself and wife) to Orangeburg; that the agent handed him a green strip of paper on which were several sections or divisions, which plaintiff assumed was a ticket for two persons; that plaintiff and his wife boarded the train, and were informed by the conductor that the ticket was good for only one person, attempted to explain the matter to the conductor, who refused to heed his reasonable explanation, and insisted upon plaintiff getting off near Cayce, the next station to Columbia.

Defendant contended that plaintiff paid for only one ticket, but further that, if he had paid for two, it was an inadvertent mistake of the ticket agent, easily ascertainable immediately by the plaintiff, as the ticket showed on its fact it was good for only one person, and plaintiff by exercising the slightest care would have ascertained this, called it to the attention of the ticket agent and had the same corrected. The exceptions, six in number subdivided, relate solely to errors in the charge of his Honor, alleging that his Honor charged on the facts in violation of section 26, art. V, of the Constitution of the State.

The first exception complains that his Honor explicitly told the jury that the plaintiff was under no duty to read his ticket, and that this was prejudicial to the appellant, because it deprived it of the defense that the plaintiff had not reasonably exerted himself to avoid or lessen the damage and acted differently to that of an ordinarily prudent and sensible person, who would have read the ticket and discovered the mistake of the ticket agent, innocent and unconscious of the mistake. The purpose of the section of the Constitution is to prevent the trial Judge from intimating to the jury his opinion of the case what weight or credence should be given to the evidence and participating in any manner with the jury's finding of fact. This the Judge cannot do. The Judge correctly charged the law applicable to the pleadings in this case, and did not intimate to the jury what facts the evidence established, but left that entirely to the jury. The charge of the Judge was in accordance with the law as laid down by this Court in Norman v. Railway, 65 S.C. 519,44 S.E. 83, 95 Am. St. Rep. 809; Dagnall v. Railway, 69 S.C. 110,48 S.E. 97; Levan v. Railway Co., 86 S.C. 514,68 S.E. 770; Smith v. Railway, 88 S.C. 421, 70 S.E. 1057, 34 L.R.A. (N.S.) 708; Teddars v. Railway, 97 S.C. 161,81 S.E. 474. If the defendant desired the benefit of further instructions on this point, it should have requested such instructions. Exception 1 is overruled.

Exceptions 2 and 3 complain of error on the part of his Honor in intimating and conveying to the jury the Judge's opinion that the plaintiffs had paid for two tickets, and that the ticket agent knew this, that these were stated by the Judge as being facts established by the evidence that plaintiff had made a reasonable explanation to the conductor, and conductor unreasonably declined to accept the explanation, and that this entitled the plaintiff to punitive damages without requiring the jury to find either that the alleged mistake of the ticket agent was conscious or wilful, that the explanation given the conductor was unreasonable, or that the action of the conductor was wilful, wanton or reckless. These exceptions are overruled.

His Honor's charge, taken as a whole, correctly stated the law, and did not contain any erroneous instruction to work reversible error as complained of in these exceptions. Tantv. Railway, 87 S.C. 184, 69 S.E. 158; McKeown v. Railway,98 S.C. 338, 82 S.E. 437; Teddars v. Railway,97 S.C. 161, 81 S.E. 474; Sanders v. Railway, 101 S.C. 11,85 S.E. 167.

Exceptions 5 and 6 are overruled. His Honor fairly submitted the question of appellant's liability to the jury for them to pass upon unhampered by any intimation by him of his opinion as to whether or not the plaintiff has established his right to recover at all, and, if so, how much. We cannot see anything in the Judge's charge that was a charge on the facts or an intimation to the jury as to his opinion of the case.

Judgment affirmed.