Cutter v. Mallard Lumber Co.

August 6, 1914. The opinion of the Court was delivered by The record contains the following statement:

"This action was commenced on the 28th day of August, 1913, by service of the usual summons and the complaint hereinafter set out, and is an action for $10,000 damages, on account of personal injuries sustained by plaintiff, alleged to have been caused by defendant, failing to provide plaintiff a reasonably safe place to work, and a reasonably safe appliance to work with, in the following particulars, to wit:

(a) In causing and allowing plaintiff to use a stick, for the purpose of stopping the machinery.

(b) In causing and allowing a belt to become own, so as to catch said stick.

(c) In failing and omitting to use such precautions, as under the circumstances, would have prevented injury to plaintiff. The defendant entered a general denial. The case was called for trial before his Honor, Judge T.S. Sease, and a jury, at the November term, 1913, of the Court of Common Pleas for Williamsburg county, at which time a motion was made for a continuance, on the ground that one of the defendant's attorneys, Capt. John A. Kelley, who was experienced in such cases, and who was expected to take charge of this case, and conduct the trial, had been taken suddenly ill, was confined to his bed, and could not attend the trial. This motion was overruled and the case ordered to trial. A jury was empanelled. The case was tried, and the jury rendered a verdict for the plaintiff for $5,000. A motion for a new trial was immediately made and argued on the grounds herein set forth, which motion was overruled, and judgment was duly entered against the defendant. Due notice of intention to appeal from said judgment, and from the rulings complained of in the exceptions, was given by defendant's attorney, and exceptions served in due time."

The exceptions will be incorporated in the report of the case, and considered in regular order.

First Exception. A motion for a continuance, is addressed to the discretion of the presiding Judge, and the appellant's attorneys have failed to satisfy this Court, that it was erroneously exercised.

Second Exception. The relevancy of testimony as to a collateral issue, must necessarily be left, in large measure, to the discretion of the presiding Judge in conducting the trial; and it has not been made to appear, that the ruling was prejudicial to the rights of the appellant.

Third Exception. His Honor, the presiding Judge, ruled that the testimony was admissible for the purpose of showing that the witness was prejudiced, which precludes the idea, that it was ruled to be admissible, for the purpose of appealing to the prejudice of the jury.

Fourth Exception. What was said, in considering the second exception, disposes of this exception.

Fifth Exception. The only error assigned is, that "no presumption of negligence on the part of the master arises from proof of injury, from defective machinery or appliances, in this case;" whereas the appellant's attorneys in their argument contend, that his Honor, the presiding Judge took from the jury the consideration of the question whether the machinery was defective.

It is only necessary to refer to the record to show that this view of the charge is untenable.

Sixth Exception. In ruling on the motion for a new trial, the presiding Judge thus stated his reasons, for refusing the appellant's 5th request:

"I charge all the propositions submitted by the defendant except one, which requested me to charge, that if the defendant did not know of the defect, why, then, he could not be held liable for it. Under my view of the law, that is not the law. If the request had said, he did not know it or could not have known it after due diligence, and after observation of due care, then he would not be bound by it, but the request was defective in that particular; and as to the next request, which I did charge, the defendant had lost nothing in regard to that — no instruction of that kind given to the jury. The motion will have to be overruled."

The case of Branch v. Ry., 35 S.C. 405, 14 S.E. 808, shows, that reason assigned by the Circuit Judge, for refusing to charge said request, was free from error. Furthermore, the defendant's 6th request, which was charged and the charge in its entirety, show that any error was not prejudicial.

Seventh Exception. In refusing the motion for a new trial, on the ground that there was error, in not granting the motion for a continuance, the Circuit Judge stated his reasons, as follows:

"Court: The motion is made on two grounds. First, that Capt. Kelly was not present at the trial, which is to be regretted, on account of his illness, but there is no assurance that Capt. Kelley would ever have been able to have appeared in the case, as appears in the conduct of a case before, two cases — one case before this — two or three cases before that, led me to believe he was not at himself, and his age and appearance, also, tended to show that he in fact would not have appeared in this case, if it had been continued. Besides the counsel who were conducting this case, had notes to which he referred constantly; he developed the testimony logically and promptly, and made the cross-examination as best they could and no one could have done better. His case was completely handled, and I never saw a case in Court handled any better, and his argument to the jury was superb. I don't care if Capt. Kelley or twenty other lawyers had been here, the case would not have been handled any better. He had his notes over there, and had it so logically made that once he called a witness and sent him back and took his list and called the proper witness, under the heading he had noted down, which was correct."

Subsequent events showed clearly that the views entertained by his Honor, the presiding Judge, in regard to the condition of Capt. Kelley were erroneous, for the probable reason, that he was not well acquainted with him. As a matter of justice to Capt. Kelly, it gives us pleasure to state that we regard him as an able and laborious lawyer, of highest integrity, and possessing every qualification necessary to commend his professional services to those in search of counsel.

We, however, are satisfied that as Mr. Lee was prepared and in all respects, fully capable of representing the defendant, the Circuit Judge did not erroneously exercise his discretion, in refusing the motion for a continuance.

Eighth Exception. The modification simply admonished the jury that the proposition contained in the request, was to be considered in connection with other portions of the charge.

Ninth Exception. There is nothing in the record, showing that the plaintiff's attorneys, commented on the testimony for any other purpose, than that for which it was held to be admissible.

Tenth Exception. The presiding Judge refused to consider the request, on the ground that it was not presented within the time required by rule XI of the Circuit Court and his ruling was free from error.

Eleventh Exception. It is unnecessary to cite authorities to sustain the proposition, that the presiding Judge was not bound to charge the law mentioned in the exception unless there was a request to that effect.

Judgment affirmed.

MESSRS. JUSTICES WATTS and FRASER concur in the opinion of the Court.