Duckett v. Pool
13 S.E. 542
S.C.
1891
Check Treatment

The opinion of the court was delivered by

Mr. Justice McIver.

The action in this case was commenced on the 9th of January, 1889, and its purpose was to recover damages from the defendant, under the allegation that he had enticed an alleged servant of plaintiff, one Henry Murrell, to violate his contract with plaintiff, by leaving his service during the time he had contracted to serve the plaintiff and taking service with the defendant, who knew at the time that said Henry Murrell was under a contract to serve plaintiff as an agricultural laborer for the *320year 1889. This being the second appeal in this case, reference may be had to the case as reported in 33 S. C., 288, for a fuller statement of the pleadings and testimony than it is deemed necessary to make here. • The case was heard before his honor, Judge Wallace, and a jury, when a verdict in favor of plaintiff for two hundred dollars having been rendered, and judgment having been entered thereon, defendant appealed upon the following grounds: 1st. Because of error in admitting the declarations of Henry Murrell as to having entered into a contract with plaintiff. 2nd. Because of error in instructing the jury “that it was not necessary, in order to create the relationship of master and servant, that one receiving a share of the crops in lieu of- wages should be bound under his contract to render his exclusive personal service to his employer.” 3rd. Because of error in instructing the jury “that to entice a servant to leave his employer was a violation of our statutes, for which damages could be recovered.” 4th. Because of error in instructing the jury, “that if, in consequence of anything Mr. Pool did, Murrell left and violated his contract that did not bind him, still Pool is liable,” unless his honor had qualified this statement, by stating the time when the inducements must have been offered, and when they contemplated Murrell leaving Duckett’s employ. 5th. Because the jury were instructed “that they could award to the plaintiff punitive or exemplary damages.” 6th. Because the jury were instructed “that they could award to the plaintiff damages against the defendant by way of punishment.”

1 The first ground of appeal is manifestly misleading, as it seems to be based upon the assumption that the plaintiff was permitted, against the objection of defendant, to offer in evidence the declarations of Henry Mu'rrell to show that he was under contract with the plaintiff, when he left and took service with defendant, which is shown by the “Case” to be an entirely unfounded assumption. For, on the contrary, it there appears that when the plaintiff, in the development of his testimony in chief, undertook to prove the declarations of Murrell in regard to the alleged contract, the question was objected to by- defendant’s counsel, and his objection was sustained. Afterwards, when the defendant had offered Murrell as a witness to show that he *321had made no contract with plaintiff for the year 1889, and on the cross-examination he had been asked if he had not admitted the contract in a conversation with two specified persons, at a place and time designated, the plaintiff was very properly in reply permitted to prove by the persons thus specified, that he had made such admissions; for the plaintiff having laid the necessary foundation in the cross-examination of Murrell, was clearly entitled to offer in reply evidence to contradict him, and thus discredit his testimony as to one of the material issues in the case. Whether there was a contract between plaintiff and Murrell was certainly a material issue in the case — in fact, was the primal inquiry ; and certainly the plaintiff in reply had a right to resort to any of the recognized modes of discrediting the testimony adduced by defendant as to this material issue. This is plainly what was done, and hence the first ground of appeal cannot be sustained.

All of the other grounds impute error to the Circuit Judge in his several instructions to the jury, and it is therefore but fair to the judge that his charge, which is set out in full in the “Case,” should be incorporated by the reporter in his report of the case; especially when, as it seems to us, that, with the exception of the fifth and sixth grounds of appeal, which raise the same question, all of the other grounds, unless perhaps it be the third, are based upon a misconception of the charge, which in fact recognizes substantially the positions contended for by appellant in his second and fourth grounds of appeal.

2 It will be observed that each of the requests to charge submitted by both parties were first set out by the Circuit Judge in haec verba, and that every one of them was charged, with certain amplifications, explanations, and modifications given in the general charge, all of which we fully approve. For instance, take the second ground of appeal, which seems to rest upon the idea that to constitute the’relation of master and servant, it is necessary that the latter shall be bound by his contract to render his exclusive personal service to his employer. Now, the request upon which this ground is based was charged with “some explanations and modifications of it.” And these explanations and modifications simply amount to this, that *322the term “exclusive,” upon which stress seems to be laid by appellant, is not to be construed as preventing the servant from devoting a part of the time covered by his contract to his own purposes, or even to the service of another, provided he is under an obligation to devote so much of that time as may be necessary to perform properly and in the usual way the service for which he is employed by the master. For example, to vary the illustration used by the Circuit Judge, one who is employed to serve another, even under a written contract, as a farm laborer, for a given period of time, is not debarred from making baskets for his own use or profit at night, when his services as a farm laborer are not expected or required, and his doing so would be no violation of his contract with his master — the test being that he is required to render such service and devote such time as is usual and necessary to perform the work for which he is employed to the master exclusively, and he cannot, without a breach of his contract, devote any of the time in which he ought to be engaged in the service for which he is employed to the service of any one else. This is the only explanation or modification of defendant’s second request, and it is plainly warranted both by law and common sense.

3 The third ground of appeal cannot be sustained ; for even conceding that the judge may have erred technically, in saying to the jury that to entice a servant to leave the employment of his master “was a violation of our statute, for which damages could he recovered,” inasmuch as no statute giving an action for damages in such a case has been brought to our attention, yet it was such an error as could not possibly have prejudiced appellant,, and therefore affords no ground for the reversal of the judgment. It was wholly immaterial whether defendant’s liability arose by statute or at common law, so far as this case is concerned, and it is not questioned that the act with which defendant was charged, rendered one liable at common law to an action for damages.

4 *3235 *322It is somewhat difficult to understand the precise point intended to be raised by the fourth ground of appeal. This ground seems to impute an error of omission rather than of commission, and it would be sufficient to dispose of it by say*323ing that there was no distinct request to charge the special proposition there presented; But reading this ground in the light of the argument presented by counsel for appellant, the contention seems to be that the proposition submitted to the jury was erroneous, because it was not accompanied with the qualification contended for. It seems to us, however, that the whole tenor of the charge plainly recognizes this so-called qualification. It is impossible to conceive that the jury should have been led to suppose, from anything contained in the charge, that the defendant would have been liable if he had induced Murrell to enter his employment before he had contracted, with plaintiff, or after such contract had terminated. On the contrary, the idea plainly presented by the charge was, that if the defendant, knowing that Murrell was under contract with the plaintiff, induced Murrell to disregard such contract and leave plaintiff’s employment before the termination of such contract, the defendant would be liable, unless the contract was terminated byMurrell of his own free will and accord, before any inducement was offered him by the plaintiff to enter his service.. The contract not being in writing, and being an agreement not to be performed within a year, was not under the statute of frauds legally binding upon Murrell, and hence he could, without legal fault, abandon it at any time; but still, as was held under the former appeal in this case, if Murrell was induced by defendant to abandon the contract and enter into the service of defendant, he would be liable; and all this was plainly laid before the jury by his honor, Judge Wallace. We do not think, therefore, that the fourth ground of appeal can be' sustained.

6 It only remains to consider the question presented by the fifth and sixth grounds of appeal, viz., whether in a case of this kind-the jury is at liberty to award punitive or exemplary damages, by way of punishment to the wrong-doer, where the testimony shows that the defendant acted maliciously, or in. wanton disregard of the rights of the plaintiff. It is not to be denied that there is much conflict of authority elsewhere as to this question — so much so as to lead to quite a celebrated controversy between two eminent text writers, Sedgwick and Greenleaf, which may be found fully set forth in 7 Am. & Eng. Encyc. of Law, *324450-477, together with the comments of Mr. Justice Green, of the Supreme Court of West Virginia, favoring the view contended for by Greenleaf. But in that same valuable publication (5 Am. & Eng. Encyc. of Law, 21-23) the other view is presented as best sustained by the authorities. Now, while the writer of this opinion is disposed to think that the weight of the argument is in favor of the view contended for by Greenleaf — that in no case should damages be awarded against a defendant in a civil action, by way of punishment; and that if the quession were entirely an open one, he would be disposed to adopt that view, yet as it requires that the terms “exemplary,” “vindictive,” “punitive,” should be given a .signification entirely different from that which they usually and properly bear, it would be a grave question whether a court should take such liberties with the language, for the purpose of protecting a wrong-doer.

But without going into a discussion of this question, it is quite sufficient for us to say that in this State, at least, the doctrine is settled by a long line of unbroken authority, that in an. action of tort, where the testimony satisfies the jury that the defendant acted maliciously, wilfully, or in wanton disregard of the rights of the plaintiff, the jury may, in addition to such damages as will compensate the plaintiff for any loss or injury which he may have sustained by the wrongful act of the defendant, either in person, property, or feelings, award other damages, called indifferently exemplary, vindictive, or punitive, by way of punishment to the defendant, and as a means of deterring him and others from committing like wrongful and wanton acts. Johnson v. Hannahan (3 Strob., 432), where the idea of punishment of the defendant is plainly recognized as one of the elements entering into the assessment of damages. Spikes v. English (4 Strob., 37), where the same idea is distinctly presented. Hamilton v. Feemster, 4 Rich., 573; Wolff v. Cohen, 8 Id., 144; Rowe v. Moses, 9 Id., 423, where the case of Chanellor v. Vaughn, 2 Bay, 416, in which it was distinctly held that the jury were at liberty, after considering all the circumstances of the case, to award such damages “as they thought would be commensurate with the nature of the injury, and such as would effectually check such evil" (italics ours), was quoted with approval, and O’Neall, J., in delivering the opinion *325of the Court of Appeals, adds: “This direction has been, in all subsequent cases, followed, and it may be here remarked that, although the party defendant in assault and battery may be liable both civilly and criminally, yet the damages found on the civil side of the court, if they are regarded as a sufficient punishment, uniformly make the punishment criminally nominal.”

In Windham v. Rhame (11 Rich., 283), which was an action on the case for obstructing a way, the jury were -instructed on Circuit that punitive damages might be found in the sound discretion of the jury, “if evil motive or unworthy conduct deserving punishment had been established against the defendant;” and in response to an exception to this instruction, the Court of Appeals expressly affirm the right of a jury in such a case to give damages “by way of punishment.” In Jefcoat v. Knotts (11 Rich., 649), the same doctrine was held, and the case just cited was expressly approved. So also in Railroad Company v. Partlow (14 Rich., 287), the same doctrine was recognized, the court citing with approval the cases of Rowe v. Moses and Chanellor v. Vaughn, supra. In Burckhalter v. Coward (16 S. C., 435), which was an action of slander, the jury were instructed that the damages “should be sufficient to compensate the plaintiff for the injury done him, and to punish the defendant for his wrongful act;” and in response to an exception to this part of the charge, Mr. Justice McGowan, as the organ of the Supreme Court, after stating the general proposition that, in actions of the kind under consideration, the jury were authorized “to give what is called exemplary or vindictive damages,” uses this language: “The primary object in such cases is to obtain such a verdict as will compensate-the plaintiff for the injury done him, and (to?) operate as an example to others ; but it is also allowable to add something by way of punishment to the defendant.” To same effect see Epstein & Bro. v. Brown, 21 S. C., 599, and Hall v. Railway Co., 28 Id., 261. In view of this array of authoritative decisions, we have no hesitation in sustaining the instructions.to the jury upon the subject of damages.

The judgment of this court is, that the judgment of the Circuit Court be affirmed.