McKenzie v. Southern Railway Co.

Tile opinion of the Court was delivered by Mr. CitiEE Justice Gary. This is an action for damages on account of injuries sustained by plaintiff’s intestate from which she died, as the result of the wrongful acts of the defendants. Plaintiff’s intestate was a passenger in an automobile owned by the defendants, Holler & Hailey, which came in collision with the train of the defendant, Southern Railway Company, at a railroad crossing.' The case was tried four times. On the first and second trials the jury failed to agree upon a verdict. On the third trial the jury rendered the following verdict: “We find for the plaintiff against the defendants, Holler & I-Iailey, in the sum of $4,250. We fail to agree as to ’the Southern Railroad.” On the fourth trial the jury rendered a verdict against the Southern Railway Company in the sum of $7,500. The following statement appears in the record: “Before the case was called for trial against this defendant, and on due service of notice in writing, the defendant, Southern Railway Company, moved for a continuance of the case until the final determination of the appeal to the Supreme Court by the defendants, Holler & Plailey. This motion was overruled. “Thereafter, and before the jury was drawn, counsel for the defendant, Southern Railway Company, offered in evidence before the Court the verdict rendered against the-defendants, Holler & Hailey, and thereupon moved the Court for a construction of said verdict for the following reasons, to wit: “(a) Because the third cause of action set forth in the complaint was a joint cause of action against the defendant, Southern Railway Company, and the defendants, Ploller & [457] Hailey, as joint tort-feasors, and if the verdict against the defendants, Holler & Hailey, was upon said third cause of action, then its only legal effect was to determine that there was no joint tort established by the evidence, because no verdict, except a joint verdict, could be rendered on said third cause of action if a joint tort was established by the evidence. “(b) That the said verdict, as a matter of law under the pleadings, could only be referred to the second cause of action, which was a separate cause of action, against the defendants, Holler & Hailey, for the reason that such verdict was responsive only to the allegations of said second cause of action, and that, therefore, the only legal effect of such verdict was to acquit the defendant, Southern Railway Company, of any negligence, wilfulness, or wantonness alleged in the first and third causes of action to be the proximate cause of the death of plaintiff’s intestate. “This motion was also overruled, but the Court held that the plaintiff was entitled to proceed to trial against the Southern Railway Company on the first and third causes of action set forth in the complaint. “As part of its evidence counsel for the defendant offered in evidence the verdict of the jury against Holler & Hailey rendered on a previous trial. His Honor excluded it, so far as it was intended to be submitted to the jury as evidence, but stated that it would be admitted for the consideration by the Court, if the Court desired to consider it thereafter. At the close of all of the testimony counsel for the defendant, Southern Railway Company, made a motion to direct a verdict in its favor as to both actual and punitive damages, upon several grounds which are hereinafter fully set forth. This motion was overruled by the Court upon all of the grounds stated. “After the rendition of the verdict against the defendant, Southern Railway Company, its counsel moved for a new trial upon the minutes of the Court upon several grounds [458] hereinafter fully set forth. This motion was overruled by Judge Moore in an order, which is hereinafter fully set forth. Thereafter, in due time notice of appeal to this Court was served upon attorneys for the plaintiff.” The first question that will be considered is whether there was error on the part of his Honor, the presiding Judge, in refusing the motion for a continuance. 1 Such motions pertain to the conduct of the trial, and necessarily must be left in large measure to the discretion of the presiding Judge, which, it has not been made to appear, was erroneously exercised. 2-5 The next question that will be coixsidered is presented by the following exceptions: “Because his Honor erred in refusing this defendant’s motion for 'a construction of the verdict against Holler & Hailey before proceeding to trial, and erred in overruling the grounds upon which this deféndant requested such construction of said verdict, the error being that the verdict against Holler & Hailey could not be referred to the third cause of action, because no separate verdict could be rendered in a joint action against joint tort-feasors without thereby finding that there was no .joint tort established, and further, the said verdict was responsive only to the allegations of the second cause of action, and the legal effect thereof was a verdict in favor of the defendant, Southern Railway Company.” We fully agree with the appellant’s attorneys in their proposition : “That the said verdict, as a matter of law, under the pleadings, could only be referred to the second cause of action, which was a separate cause of action, against the defendants, Holler & Hailey, for the reason that such verdict was responsive only to the allegations of said second cause of action.” But we cannot concur in their conclusion that the only legal effect of such verdict was to acquit' the defendant, Southern Railway Company, of any negligence, wilfulness, or wantonness alleged in the first and third causes of action. [459] Of course, a recovery under the second cause of action against Holler & Hailey bars a recovery under the third cause of action, for the reason that joint tort-feasors cannot be sued both separately and jointly. The two actions are. inconsistent; and if the defendant had made a motion to require the plaintiff to elect whether he would rely upon the first and second causes of action (which were against the defendants separately), or upon the third (in which they were sued jointly), the motion would have been granted. Cartin v. Railway Co., 43 S. C. 221, 20 S. E. 979, 49 Am. St. Rep. 829. While the plaintiff had the right to sue both tort feasors in separate actions, he is only entitled to a single satisfaction, although having two separate judgments. There is no prejudicial error in the remaining exception, and the Court deems it unnecessary to assign any other reason why they cannot be sustained. Affirmed. Messrs. Justices Watts, Eraser and Gage concur.