Greer v. Western Union Telegraph Co.

Section 216 of the Code is as follows:

"In all actions ex delicto in which vindictive, punitive or exemplary damages are claimed in the complaint, it shall be proper for the party to recover also his actual damages sustained, and no party shall be required to make any separate statement in the complaint in such action, nor shall any party be required to elect whether he will go to trial for actual or other damages, but shall be entitled to submit his whole case to the jury under the instruction of the Court.

"In all cases where two or more acts of negligence or other wrongs are set forth in the complaint, as causing or contributing to the injury, for which such suit is brought, the party plaintiff in such suit shall not be required to state such several acts separately, nor shall such party be required to elect upon which he will go to trial, but shall be entitled to submit his whole case to the jury under the instruction of the Court and to recover such damages as he has sustained, whether such damages arose from one or another or all of such acts or wrongs alleged in the complaint."

Prior to the adoption of the act of 1898 (now incorporated in the Code, as section 216), the plaintiff was not allowed, under the rulings of the Court, to commingle in his complaint allegations appropriate to an action for punitive damages based upon willfulness or recklessness and allegations appropriate to an action for actual or compensatory damages arising out of negligence; but he was required to state such causes of action separately. When the causes of action were separately stated, the plaintiff could be required to elect upon which cause of action he would rely. The statute was not intended to change, in any respect whatever, the fundamental distinction between causes of action arising out of a wilful wrong and those based on negligence; but it has reference solely to the pleadings and practice in actions arising ex delicto.

In an action based on negligence, the plaintiff can recover only actual or compensatory damages; and the only verdict which the jury can render in favor of the plaintiff is for such damages. In an action, however, founded upon willfulness, the jury may render a verdict, not only for punitive damages, but likewise for actual damages. Wilson v. Alderman,75 S.C. 299, 55 S.E. 447.

A verdict for punitive damages cannot be rendered, unless there is testimony tending to show that the plaintiff has suffered actual damages; and, when a verdict shows upon its face that it is a finding for punitive damages only, it is, in effect, dual in its nature. It is not only a finding for punitive damages, but, also, for actual damages which are not so substantial, as to necessitate their inclusion in the verdict. They must, nevertheless, be actual, and not such as are commonly known as nominal. Bethea v. Telegraph Co., 97 S.C. 385,81 S.E. 675; Robinson v. Telegraph Co., 101 S.C. 20,85 S.E. 436.

Nor can the plaintiff, in an action for a wilful tort, recover either actual or punitive damages, unless there was testimony tending to sustain the allegations of wilfulness. Chiles v. Railway, 69 S.C. 327, 48 S.E. 252.

When the complaint contains allegations appropriate to a cause of action for negligence, and likewise a cause of action for wilfulness, and the jury renders a verdict in favor of the plaintiff for punitive damages, also for actual damages, the verdict for actual damages must be referred to the cause of action based on wilfulness, and not to the cause of action founded on negligence. A verdict for punitive damages is wholly inconsistent with a verdict for actual damages founded on negligence; but a verdict for punitive damages is entirely consistent with a verdict for actual damages not based upon negligence. The verdict of the jury for punitive damages is necessarily a finding that the defendant was not guilty of negligence. When there is a verdict for punitive damages, and likewise for actual damages, and the verdict for punitive damages is set aside, it necessarily follows that the verdict for actual damages must also be set aside. and a new trial granted as to the question of wilfulness as well as that of actual damages.

It is true a plaintiff cannot, under the present practice, be required to elect upon which cause of action he will rely, but he can only recover on one cause of action; and when he recovers on one cause of action, the judgment thereon is conclusive of all questions arising out of the tort. The action becomes res adjudicata as to the cause of action for punitive and actual damages arising out of the wilful tort, as well as for the compensatory damages founded on negligence.

There is another reason why the appeal should be sustained. On the former appeal (96 S.C. 423, 81 S.E. 517) the judgment of the Court was: "The judgment of the Court below is reversed, and the complaint dismissed." All questions that were made, or could have been made, upon the former trial have become res adjudicata. Halsall v. Railway,100 S.C. 483, 85 S.E. 433.

For these reasons I concur in the opinion of MR. JUSTICE GAGE.

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