Trimmier v. Atlanta & Charlotte Air Line Ry.

Opinion. The opinion of the Court was delivered by. Mr. Justice Gary (after stating the facts). We will not discuss the exceptions in detail, but under the heads adopted by the appellant’s attorneys. The first question that will be considered is whether his Honor, the presiding Judge, erred in overruling the grounds numbered 1, 2, 3 and 4, in the motion made by the defendant for the Circuit Judge to direct a verdict in favor of the defendant. 1 These grounds relate to the legal capacity of the plaintiff to bring the action. If there is a defect of parties, the objection should be taken by demurrer or answer (which was not done in this case), otherwise the right to make the objection is waived. Dawkins v. Mathis, 47 S. C., 64, 24 S. E., 990; Blackwell v. Mortgage Co., 65 S. C., 105, 43 S. E., 395 ; Delleney v. Granite Co., 72 S. C., 39, 51 S. E., 531. We proceed to consider whether there was any testimony tending to showi negligence on the part of the defendant. 2 It was the duty of the defendant to keep switch in such position as to render the tracks in the yard safe while the trains were being made up; and if the plaintiff’s intestate was injured while engaged in the performance of his duties as conductor, as a direct and proximate cause of negligence on the part of the defendant in failing to keep the switch in proper position, then the defendant became liable for such injury. Richey v. Ry., 69 S. C., 387, 48 S. E., 285. *211 The 'appellant’s attorneys, in their argument say: “The death of Allison was caused by this switch being changed by some one; no one knows who did change it;” thus conceding. that the switch was not in proper position when plaintiff’s intestate was killed, and that was the direct and proximate cause of his death. This made a prima facie case of negligence against the defendant. Branch v. Ry., 35 S. C., 405, 14 S. E., 808; Hicks v. Ry., 63 S. C., 559, 41 S. E., 753. Furthermore, the testimony of the witnesses, as stated by the presiding Judge in refusing the motion for a new trial, tended to show negligence on the part of the defendant. It is, however, unnecessary to refer to the testimony in detail, as we have already shown that there was a prima facie case of negligence against the company. 3 The next question that will be determined is whether the testimony showed that the plaintiff’s intestate was guilty of contributory negligence. As there was negligence on the part of the defendant, the question whether that, or the negligence of Allison, was the direct and proximate cause of the injury was properly submitted to the jury. The next question is presented by the following exception : 4 “Because his Honor erred in refusing to charge defendant’s fifteenth request, to wit: ‘The jury are instructed that they can not give any damages for vindictive or punitive damages in this case;’ the error being, that there being no evidence of any wilfulness or wantonness on the part of the defendant, it was error on the part of the Court to submit the question of vindictive or punitive damages to the jury.” The appellant’s attorneys presented numerous requests to charge (including the fifteenth), and, after reading them to the jury, the presiding Judge said: “Now, .gentlemen, I charge you all of these requests, as being good law, except *212 as modified- by my general charge later on.” Upon this point the majority of the Court is of the opinion that there was no evidence of wilfulness or wantonness-, and that there was reversible error in submitting the question of punitive damages to the jury, contrary to the request of the defendant. The writer, however, dissents, entertaining the view that, conceding there was no evidence of wilfulness or wantomness on the part of the defendant, it has not been made to appear that a submisison of such question was prejudicial to the rights of the appellant. And, if there was no such evidence, it can not be assumed that the jury rendered a verdict including punitive damages. Furthermore, there was not a modification of the request, but a distinct proposition was announced, in the general charge. Harbert v. R. R., 78 S. C., 537. We proceed to dispose of the question presented by the following exception: - 5 “Because his Honor erred in modifying the defendant’s seventeenth request to charge, and in instructing the jury as follows: ‘Now, I charge you, as a matter of law. that if plaintiff’s intestate was injured through the negligence of the railroad company, and that this negligence was the direct and proximate cause of the injury, and he did not in any manner contribute towards bis injury, then he would be entitled to recover such damages as you think he is entitled to.’ The error being, as it is respectfully submitted, that by this charge and modification of defendant’s request his Honor permitted the jury to give any amount of damages they might think fit, instead of limiting them to an amount proportional to- the injury, resulting from such death, to the person- for whose benefit the action was brought.” The presiding Judge has already charged the law, as requested by the defendant. One charge was specific, while the other was general. The general charge was particularly *213 directed to the question of negligence, and not tO' the person for whose benefit the action was brought. When the charge is considered in 'its entirety, there is no reasonable ground for supposing that the jury may have been misled. The last question for determination arises out of the following exception: 6 “Because his Honor, in refusing to grant a new trial on the ground that the verdict was excessive, considered only the life expectancy of the deceased, and his probable earnings during such expectancy, whereas, it is respectfully submitted, his Honor should have considered the life expectancy of the father, for whose benefit the action was brought, and the injury done the father, as shown by the evidence, it being respectfully submitted that there was no proof as to such life expectancy, or as to any injury done the father, or as to any amount contributed, by the deceased, for the support of the father, nor was there any proof of anything, either in money or otherwise, given or contributed by the deceased to the father.” We fail to see wherein the probable duration of the father’s life has any relevancy to the issues involved, as the amount recovered is the absolute property of the beneficiary, under the terms of the statute. The cases of Barksdale v. R. R., 76 S. C., 183, 56 S. E., 906, and Hull v. R. R., 76 S. C., 278, 51 S. E., 28, 10 L. R. A. (N. S.), 1213, sustain the proposition that it is not essential to the recovery of damages that the person for whose benefit the action is brought should be dependent upon the deceased for support or that the beneficiary should suffer pecuniary loss. But even if the reasons assigned by the Circuit Judge in refusing the motion for a new trial were erroneous, it does not necessarily follow that this Court will order a new trial. *214 7 *213 “The effect of erroneous reasons assigned in refusing motions for new trials may be divided into three classes: *214 1st. When the motion is refused on the ground 'that the Court is without power to entertain it; 2d. When the motion is based upon a question of law, in which this Court will look to the ground upon which the motion was made for the purpose of determining whether it was erroneously overruled; and 3d. When the motion involves a question of fact, in which case it must appear that the presiding* Judge would have ordered a new trial but for the erroneous reasons, otherwise it will be presumed that other reasons would have been assigned if those had not been deemed sufficient.” Reed v. Ry., 75 S. C., 162, 170, 55 S.E., 218. The motion for a new trial involved a question of fact; and, even if the reasons assigned by the Circuit Judge in refusing the motion were erroneous, it has not been made to appear that he would have ordered a new trial but for such reasons. The foregoing views practically dispose of all the questions presented by the exceptions. The majority of the Court being of the opinion that there was error in not instructing the jury that there was no evidence to warrant punitive damages, it is the judgment of this Court that the judgment of the Circuit Court be reversed and the case remanded for a new trial.