Norris v. Greenville, S. & A. Ry. Co.

January 13, 1919. The opinion of the Court was delivered by First, second and third exceptions: These exceptions cannot be sustained, for the reason that not only is the conscious invasion of the rights of another in a wanton, wilful, and reckless manner an act of wrong, but also when the wrongdoer does not actually realize that he is invading the rights of another, provided the act is committed in such a manner that a person of ordinary reason and prudence would say that it was a reckless disregard of another's rights.

Fourth and fifty exceptions: The defendant's request, which was not charged, and the plaintiff's third request were linked together by the words "Qualify plaintiff's third request as follows," which preceded the defendant's request. His Honor, the presiding Judge, assigned the following as a reason for failing to charge the defendant's request:

"I had marked on the original requests of plaintiff at the third request to call my attention to the modification asked by defendant, but, when plaintiff withdrew the written request to charge, my mind was not drawn to the requested modification."

When the original request was withdrawn, it was only natural for his Honor, the presiding Judge, to conclude that the modification was no longer requested.

The rule is correctly stated in Herskovitz v. Baird,59 S.C. 307, 37 S.C. 922, that it is not the duty of counsel presenting the requests to call the attention of the Court to the fact that they have not been charged, unless they know the reason why they were not charged.

When a person has notice of such facts as are sufficient to put him upon inquiry, which, if pursued with due diligence, would lead to knowledge of other facts, he must be presumed to have knowledge of the undisclosed facts. In the present case the defendant, after reading the plaintiff's third request, prepared a request which commenced with the words, "Qualify plaintiff's third request as follows." Then follows the request in question. Both the requests were presented. The defendant's request was conditional in its nature, depending upon the fact that the plaintiff's third request was charged. The defendant's attorneys knew that the plaintiff's third request had been withdrawn, and that his Honor, the presiding Judge, had not charged the request that was intended to qualify it. Under such circumstances it was their duty to notify his Honor that they still insisted upon their qualified request.

Sixth exception: The appellant makes merely a passing remark in regard to this exception, concluding as follows: "We do not care to enter into an extended argument upon this proposition."

We deem it only necessary to say that we do not deem it necessary to enter into an extended argument to show that it cannot be sustained.

Seventh exception: Even if there was error, it was harmless. Clifford v. Railway, 87 S.C. 324,69 S.E. 513.

Eighth exception: Having reached the conclusion that the defendant's request was not erroneously overlooked by the Circuit Judge, this exception becomes immaterial.

Affirmed.

MESSRS. JUSTICES HYDRICK, FRAMER and GAGE concur.

MR. JUSTICE WATTS did not sit.