*1 (cid:127)236 Co. Horseord v.
Exceptions. [92 HORSFORD v. CAROLINA GLASS CO.
1. Nonsuit —Issues.—Where there is testimony on behalf of tending to support allegations material complaint, of the nonsuit ordered;
should not be and where the testimony contributory toas negligence and assumption susceptible of risks is than one more inference these defenses be jury. sent to the Appeal.—Where 2. Evidence — objected is on ground it tends to an compromise show offer of and when that is dis- it, claimed party offered, offering a general objection is specific objection will not be considered on appeal. Attorneys.—Where 3. attorneys Ibid. — bring out in evidence matter universally recognized as extraneous and 'highly prejudicial comment on in argument, although question not being subject to objection, general objection made the answer and no out, motion made to objection strike having been made argu- ment and the attorney having been permitted to on the comment adduced, evidence a new granted. trial should be Here a new trial granted plaintiff’s because attorney brought out tending evidence to show the master employer’s carried insurance and commented on the fact that might the verdict paid by the company. insurance 4. Ibid. —Master and Servant —Safe Place. —Under an allegation the master failed to furnish a safe place work, for the servant evidence that there was not on a shaft a pulley loose which would have rendered it safe to try put a belt aon revolving pulley, was competent. 5. Master and Servant —Safe Place. —The complained instruction here of as to duty master a safe furnishing place to work when with considered the whole charge is held free from error. 6. Jurors. —The may Court order the drawing of for trial of one proceeded case with while twenty-four jurors are present and before the extra venire ordered had been summoned and
answered. Before Wilson, Richland, J., term, October Reversed.
Action by G. Horsford W. E. against Carolina Glass Co. Defendant on appeals following exceptions:
1. “That evidence, his Honor erred admitting over objection certain declarations
Horsrord *2 officers made certain have been admissions claimed to Horsford, G. to the plaintiff, defendant W. E. company follows, to wit: ever not the company “‘Mr. Nelson: whether or State ? paid They said about you paying your wages anything Mr. me for a while. Why they stop? did my salary If they I Mr. Nelson: told Lyles: you why object. Brewer, Mr. if had conversation with stopped, you Seibels, it is com- or Mr. who was president, manager, I I went to the works to petent. glass get my pay, thought ; it; I still I there I Mr. Brewer was when saw receiving got he me he had a Mr. told conversation with Seibels he had Mr. : I object, said insurance companies— Lyles out; and ask that that be stricken if is objec- there anything tionable our a under law is in the nature of com- anything Mr. are not seeking not Nelson: competent. We promise; reason Mr. to show a want compromise. give Just him. The Court: Go him for not paying assigned Seibels Mr. he Lyles: Mr. Nelson: did say you? ahead. What This Lyles: I The Court: Note Mr. object. exception. accident, and I don’t know whether Mr. was after the long Brewer then an but Mr. company, Brewer was officer of the at admission of statement authority by had no right date, accident, this to bind late not connected with anywise Norton, think, I Mr. was the manager company. time; Mr. at that this after accident. was company long it seeks Nelson: Instead this being compromise, shirk the answer will show no attached liability; liability them, and will the reason. after out How give long you got before went down there? I had there sev- you been down this after Mr. Brewer had How soon eral times before. were hurt? after with you long you conversation —how he Mr. Brewer still down there? Was time. Was Some he been when were what had doing you in the office doing I he is what ? That what suppose doing there —that I he tell Mr. Lyles: object. he was did doing. you? What Horseord Exceptions. [92 S. C. Mr. Brewer said that Mr. him said to Seibels under liability of the insurance weren’t due me company anything else, would not me but Mr. pay anything Brewer he said to Mr. officeand that going Seibels’ he would Mr. bring back and let me talk Seibels to him myself. Mr. Nelson: He said the insurance Mr. company— I Lyles: object. The Court: He has stated what he said. Mr. already Nel- son : what he said. Mr. State Brewer told me Mr. Seibels about the said insurance something company, liability insurance, sum; not said not due me paying any anything me pay but Mr. Brewer said: I am anything, now, to Mr. office and I going Seibels’ will *3 bring Seibels time, wait, back a minutes’ few and to I told me and came, waited at the until Mr. and he factory came Seibels and he me— Seibels, told You had a talk with Mr. the Yes, president sir. He me company? told the insur- ance claimed were not company they due me anything time, would not me more the pay any company would not advance me that is when anything, my pay stopped. That conversation was with which Mr. Mr. Seibels? John Seibels, G. the president the company.’
“Whereas, his Honor should have the excluded for the reason: that such (a) declarations or admissions by officers of the time company after the long to plain- injury tiff were not competent evidence to bind the defendant com- reason, the pany, and further that were (b) they declara- tions to establish an tending the attempted compromise, and reason, further that (c) were to evidently attempted be introduced for the purpose contended establishing (as that the defendant carried accident insurance by plaintiff) to covering injury plaintiff, so would con- clude that verdict render they might would be paid by the accident insurance compan}'-and not the defendant. by
2. “That his Honor erred in the defendant’s refusing motion for a trial new made upon twelfth as ground, follows, to wit:
Horsrord “ to to testify plaintiff ‘That his erred allowing Honor to defendant Brewer the effect Mr. an admission of wanted, plaintiff and everything all pay expenses reason that Mr. objected had for after the defendant admis- to an by had bind defendant authority Brewer made after the accident.’ sion
“Whereas, verdict should have set aside the his' Honor trial therein stated. new reasons granted “That erred in the defendant’s his Honor refusing trial made ground, motion new upon eighth follows, to wit: “ over defendant’s allowing, ‘That his Honor erred to have to an admission testify alleged objection, plaintiff Brewer after long injury plaintiff, been made Mr. by over defendant’s also in testify, allowing after Mr. long an admission Seibels objection, alleged accident, to the accident of which reference both had counsel plaintiff’s insurance to which liability company, referred for the reason: in his argument, (a) admissions made after long were appeared and for that were not reason injury plaintiff, binding or Mr. Brewer Seibels neither circumstances, *4 make an admission under- authority that bring and the counsel (b) plaintiff’s thereby sought the before the the fact that he claims to exist jury insurance, the in defendant had order liability prejudice a the verdict would not jury by subsequent argument fall the but the insurance upon liability upon company.’
“Whereas, should and his Honor have set aside the verdict a new for the therein stated. trial reasons granted the defendant’s “That erred in refusing his Honor ninth ground, a trial made the motion for new upon follows, to wit: “ his ‘That the for the in plaintiff, closing argu- counsel drew inferences from to the made remarks and ment jury, Horseord Exceptions. [92 S. C. the not the in testimony, based evidence or the issues upon cause, the of a character calculated to inflame the passions and of prejudice after objection had been made to jury, the use of such the statements language and argument counsel, after Court instructed him confine record, himself to the said remarks to the effect being consider, in jury the amount determining verdict, their that it would sting Company, but fall upon the accident insurance company, being a practically repetition of the statements and argument which defendant’s counsel had objected and which his Honor had ruled improper.’
“Whereas, his Honor should have set aside the verdict trial granted new for the reasons therein stated. 5. “That his Honor erred in refusing motion for a new trial set upon ground forth in the notice duly served upon plaintiff’s attorneys, as follows: “ Nelson, Nelson & ‘To for Gettys, Attorneys Messrs. that, notice, Plaintiff: You will take please the motion upon trial, Honor, for new to be made before his S. John Wilson, the will rely, defendant addition to the grounds Court, based upon the minutes of upon point the counsel his to the went argument jury record, outside of the made improper remarks them, of such a character inflame prejudice and affidavit, and upon this will an point use which copy Shand, is hereto attached. & Lyles Shand & attor L3rles, defendant,’ for the neys and the affidavit B. Lyles, J. notice, attached to said P. H. statements W. S. and Nelson, are a which part of in this record cause.
“Whereas, his Honor should have motion granted a new trial and for the grounds reasons set forth therein. plaintiff's “That Honor allowing atton^, erred *5 defendant, outside of the record objection go
over that some accident insur- argue jury and improperly HorsRord April Term. 1912. cause,
anee to this would pay nowise company, party that be verdict rendered against might and persuade thus to that the defend- prejudice jury verdict; ant not and his Honor injured by any cautioning further erred in such remarks without allowing or that not them in they should consider or charging jury some other manner from the relieving defendant preju- dice thereby created in the minds of jury.
“Whereas, his Honor have required should plaintiff’s counsel to within the and refrain keep record from such on argument outside matter of a character to inflame and prejudice this, jury, failed in he having have cautioned and instructed such remarks were incompetent improper nothing do with case, and that the jury should consider them at all. “That his motion, Honor erred in refusing defendant’s at made the close of plaintiff’s for a testimony, nonsuit upon the cause of action for punitive follows, as damages, to wit: “ nonsuit; first, ‘Mr. ask for a Lyles: as to the We cause of action for on the exemplary punitive damages, ground is there evidence establish the cause tending ’ * * * action;
“The error being: There
“(a) was no evidence to establish such tending action; cause of That
“(b) by the failure of his Honor to grant motion, the defendant was misled and in the prejudiced presentation evidence, its case meet some supposed when Court, plaintiff, counsel in open at the close of all the testimony, voluntarily acknowledged there was no such testimony, and withdrew cause of action. erred in
8. “That his Honor the refusing a new trial made motion for the second ground, follows, to wit: “ erred, it submitted, ‘That his Honor respectfully follows, defendant’s eleventh request refusing charge, 16 —92 *6 v. Co. HorsRord
Exceptions. [92 furnished “The in the appliances to wit: defect only alleged short.” too is that the belt was too plaintiff tight in alleged that the defective only appliance error being error, it too or too and was was a belt short tight, complaint to therefore, allow instruct the and to them jury not to so defect.’ consider other
“Whereas, have the motion for his Honor should granted the reasons therein stated. refusing “That in defendant’s
9. his Honor erred follows, request, eleventh as to wit: “ in the furnished ‘The defect appliances only alleged belt was too short.’ too tight plaintiff “The that this forth request error set being proper construction of the and the defendant was entitled complaint, to'have cause under such jury proper submitted construction, is, to limited to the issues jury have raised which were the issues of which pleadings, notice. defendant’s Honor erred refusing “That his the first as fol- ground, for a trial made upon motion new lows, to wit: “ defendant’s his Honor to refusing charge ‘That erred follows, wit: is no evidence tenth to “There request, to furnish with plaintiff its duty the defendant violated submitted and allowed thereby work.” place safe And counsel to consider allegation argument furnish the the effect that had failed to plain defendant wTork, no there tiff safe when reasonably place with to sustain this allegation evidence adduced competent complaint.’
“Whereas, motion his Honor should have granted therein stated. grounds erred in refusing 11. “That his Honor follows, to wit: request charge, tenth “ duty that the defendant violated its ‘There is evidence a safe to work.’ place with plaintiff furnish HorsRORd
“The error that there was no evidence from which being a reasonable juror conclude could that the defendant had work, failed to furnish with a safe place and the *7 this, plaintiff, the burden of bearing the defend- establishing ant was entitled to have this issue withdrawn from the jury.
12. “That his Honor erred in over the admitting, objec- tion .of testimony by plaintiff, G. W. E. Horsford, to effect that the defendant had no loose or on the shifting pulleys shafting question, and with such loose or shifting pulleys accident could not -have happened, follows, said testimony being to wit: or loose shifting “‘What used for? Mr. pulley I object. The Lyles: only allegation delict in this any with the complaint, was anything wrong machinery, that the belt was too short. Incompetent them to prove any other too short. particular except The only con- allegation tained in one these any subdivisions is that the belt was Mr. too short. Nelson: In to furnish a . safe to failing place work him to work requiring to a endeavoring place belt around the two one of which pulleys, was revolving we submit it is rapidly, proper show wherein that was unsafe. to show if a loose Proper there, or lever was pulley that that was the proper construction and that would have made it safe. The I Court: think so. Mr. Note Lyles: exception. Mr. Nelson: whether State or not there was No, sir, ? loose there no loose If a pulley pulley. loose there it would that make safe? Mr. pulley perfectly I The Court: Mr. Lyles: object. Leading. Nelson: State if whether or not a loose was there it pulley would it make there, If a safe? loose had been a pulley would have had lever to belt on and it push would have been safe. Mr. lever, Nelson: That loose is the pulley what operation the belt from a loose to a ? changing pulley revolving pulley I Mr. there is Lyles: object; of such defective allegation in the A safe machinery complaint. a place work is from separate unsafe thing appliances. only allegation Horsford
Exceptions. [92 that the which we have notice is of unsafe machinery was too short. It does not say machinery belt Mr. defective in that there was no Nelson: shifting pulley. to make more Counsel had to move this right complaint definite; he have certain and could done and we would have been and in to furnish a safe obliged say, failing ahead, Mr. Nelson. Mr. The Court: Go work. place and lever or have loose pulley Nelson: Where from the shifter, to transfer the belt is the operation what I object. pulley? Lyles: stationary loose pulley so lever or shifter is fixed If have loose pulley, you and that will over you push the shifter press that when you from the loose pulley pulley, slide the belt on to tight belt, to touch the this just and don’t have tight pulley, lever, us If no loose or shifter or tell pulley lever. have you *8 hand your have to handle with pulley whether or not you sir, Yes, if haven’t a loose to the pulley? you got on put hands on. it on without putting your cannot pulley you get is there in trans- any danger have loose they pulley Where that shifts No, the lever over and just pull the belt? ferring or a lever down there a loose pulley have belt. Did No, Honor under- Your Lyles: sir. that time? at The Court: all these questions? I am objecting stands In the belt over Nelson: Yes; ahead. Mr. pulling go air was it compressor, necessary which operated pulley Yes, sir.’ use the hand? have
“Whereas, objec- Honor should sustained (a) defendant, in the that there was allegation tion of the other any that the was defective machinery complaint was too short or too tight, than that the belt respect in his the .delict or thus specified complaint having plaintiff, defendant, have his Honor should acts of negligence and should have excluded incompetent ruled this testimony same; established plaintiff, having and (b) at all to have or shifting or loose customary necessary it was was in manner not reason- machinery any or that the pulleys, HoesRORd them,
ably safe without his Honor should have excluded for the testimony reason that it did not tend to establish negligence on the part of the defendant in the particulars specified in the complaint.
13. “That his Honor erred in refusing motion for a new trial made upon the follows, third ground, wit: “ ‘That his Honor erred in over admitting, the objection effect that there were no loose or on shifting pulleys shafting question. The error being: (a) defect in the in the machinery alleged was that complaint the belt was too short or too tight and no defect in the or shafting pulleys alleged, and (b) the plaintiff did not endeavor to establish that shafting pulleys of this char- acter, without the shifting were pulleys, unsafe unreasonably or that dangerous were shifting pulleys customary reasonably necessary purpose, and the testimony merely tended confuse and mislead the violation his Honor’s charge the defendant was merely under a duty furnish reasonably safe machinery reasonably safe place work.’
“Whereas, his Honor have set aside the verdict a new trial granted for the reasons therein stated. 14. “That his Honor erred in refusing defendant’s motion, made at the close of plaintiff’s *9 for a non- testimony, case, follows, suit the whole as upon to wit: “ * * * ; ‘Mr. we ask for a Lyles: nonsuit on the whole case, upon two first grounds, of which is that there is no evidence to establish the violation tending of any duty owed the defendant to the by resulted approximately in or the damages plaintiff, violation of any duty servant, owed by any for the violation of which duty * * * is responsible defendant under law .’ “Whereas, his Honor have granted the motion therein stated. grounds HorsfoRd
Exceptions. [92 a verdict to direct refusing erred in his Honor 15. “That third in its the defendant by as requested the defendant follows, as wit: request charge, “ defendant, a verdict for to find is instructed ‘The jury the violation to establish tending there is no as evidence defendant, directly proxi- plaintiff by owed any duty to plaintiff.’ in or injury resulting damage mately a verdict “Whereas, should have directed his Honor requested. as therein the defendant to direct verdict Honor erred in refusing 16. “That his requested request as in fourth for the defendant defendant’s follows, to as wit: charge, “ defendant to find a verdict for ‘The instructed jury the infer- admits for the reason that evidence injuries negli- ence -that were caused plaintiff’s by duty of a fellow-servant not in the performance any gence owed defendant by plaintiff.’ “Whereas, have a verdict for his Honor should directed as therein requested. defendant charged his Honor having “That in follows, ‘A defect as to wit: ninth request charge, the master is not furnished by or machinery appliances failed or broke the mere fact that it 'from be presumed by pre- must establish defect The plaintiff use. to direct he erred testimony,’ failing ponderance in defendant’s requested for the defendant a verdict follows, to wit: first request, “ to find a verdict for defendant’ ‘The is instructed Honor, for the adopted that his having error being “The ninth set forth in defendant’s the rule case law of man a reasonable evidence from which there was request, machinery defect any that there infer copld was, there there- furnished appliances defect in the evidence to establish fore, a failure failure to consequently or appliances, machinery *10 Guass HoesRoed the to defendant by owed duty breach establish complaint. the allegations under or changing modifying erred in his “That Honor ‘The follows: read which request, seventh his servant to furnish duty an absolute 'under is not master and appli- machinery and safe to work a safe place with do to care ordinary the duty merely owes ances. He and such work to such is, place a of furnishing so—that and sense ordinary as man machinery appliances circumstances,’ and similar under furnish would prudence form: following the same in the in charging “ “7. as follows: defense, I you charge ‘Now for his servant furnish to duty an absolute under is not master and appli- machinery and safe work to place a safe with because, I tried as have duty, an absolute under ances”—not cannot the master that work illustrate, be such it may to employee, to the safety cannot guarantee safety, guarantee suitable safe and reasonably furnish what only but that.’ I charge you circumstances. suitable under stated requested charge that being error “The to the law, absolutely applicable proposition correct which testimony, the pleadings by raised issues . the form charged to have entitled was defendant by changed it was to which form but requested; test under the proper from away took Honor whether question determined have which plain- furnish the failing negligent was the defendant appliances, machinery safe to work place tiff a safe is, care that care, that ordinary wit, test of and pru- sense ordinary a man exercised the master effect the jury dence, instructed place furnish safe duty absolute an under was where in cases and appliances machinery and safe work not guarantee the master could the work them thus instructing employee, safety cases. in other duty an absolute under master *11 HorsfoRd v. Co. Glass Exceptions. [92 19. “That his Honor erred iti a direct verdict refusing for the defendant as requested in defendant’s fifth request follows, as charge, to wit: “ ‘The jury is instructed find the reason that the evidence admits of 'the only inference that plaintiff was guilty negligence which contributed as a proximate cause of his own injuries.’
“Whereas, his Honor should have granted the request and directed a verdict for the reasons therein stated.
30. “That his Honor erred in refusing defendant’s motion for a new trial made upon the fifth as ground, follows, to wit: “ Honor, ‘That his having charged the defendant’s eigh- follows, teenth request, as to wit: “If plaintiff had a choice of two to do work in the ways of which he doing was injured safe and one dangerous he voluntarily —one —and chose the dangerous way was injured aas thereby, proximate consequence of the work doing in this danger- ous he then cannot way, recover.” And this having case, become law the thereby and the evidence having conclusively affirmative, established in the the facts upon which this law was must, hypothecated, Honor aas law, matter of set aside the verdict as being contrary law.’
“Whereas, his Honor should have granted the motion for the reasons therein stated. “That his Honor having charged
21. ‘If as follows: a request, plaintiff had choice of eighteenth the work in the to do of which ways doing two he was safe and one dangerous he injured voluntarily —and —one and was way injured the dangerous chose a thereby, as the work doing in this consequence proximate dangerous recover,’ he cannot and this then thus way, having become case, it error was for his the law of Honor to refuse to a to find verdict for jury direct defendant as follows, first request, in defendant’s requested wit: Horsrord
“ a verdict for defendant.’ ‘The is instructed find from that could be “Because the inference drawn a choice between safe work, and that he volun- way doing and dangerous way, injured proxi- chose dangerous tarily in this consequence way. mate work doing “That his Honor erred in the plaintiff’s charging *12 follows, fourth as to wit: request, “ ‘A servant is not of ordinarily neg- guilty contributory master, in an order or rule of his unless ligence obeying or of such rule or order is so danger peril obeying imminent that a or obvious man of ordinary prudence incur it. would not To show under negligence contributory circumstances, it is not sufficient that employee the order should and have believe receiving misgivings hazardous, act to be unless is so immi- required danger that nent and obvious a man ordinary prudence not incur it. If there is difference ground reasonable as to the opinion the servant is not to set danger, bound master, his that up judgment of the orders against whose he is but he on the required obey, may rely judgment his superior.’ no from that there was evidence which
“The error being infer that the had man could been plaintiff a reasonable it, manner in work in the which he did ordered to do the not claim that he did even had been since the plaintiff the work in servant officer do superior instructed by was, therefore, his manner which caused and injury, the issue whether his obedience to submit error him from the of the danger such an order excused work he undertook. plaintiff’s charging erred Honor “That follows, to wit: request, sixth “ assume and rely inspection, without may, ‘A servant fur- and machinery appliances assumption suitable, and are safe and he the master him by nished Horsford Exceptions. [92 care to ascertain bound to exercise ordinarily ordinary if are sod
“The error being: That the evidence admitted of the inference
“(a) full much opportunity, certainly so as his defects the machin- superiors, observing any him, furnished and it was not a case of ery appliances master; superior defect on knowledge part That there was no evidence which a reason- “(b) from able man infer that could there was defect in the machin- ery appliances; That servant is to exercise ordinarily bound ordi-
“(c) care to arid ascertain if there nary inspect are defects in the him, machinery appliances furnished certainly except in cases of on the superior knowledge of the master of part defects, hidden there was evidence this case bringing within the exception.
24. “That his Honor erred refusing *13 nonsuit, motion for a made at the of testi- close plaintiff’s the mony upon to wit: following grounds, “ * * * ‘Mr. ask for a nonsuit on the whole Lyles: We * * * second, case, ; on the case. two whole upon grounds It is his by is clear that the barred of plaintiff assumption risk.’ held,
“Whereas, his Honor should have from the plain- the the tiff’s had assumed risk of testimony, plaintiff sustained, and the he should have the injury granted motion. erred in to direct verdict refusing Honor “That his
25. as in defendant’s sixth requested request the defendant for follows, to wit: to charge, “ for the instructed to find verdict defend- ‘The evidence admits of the ant, only reason that the for the the risks the assumed of he injuries that plaintiff inference sustained.’
HoRSKoed Glass 1912. request the granted have “Whereas, should his Honor reasons the for the defendant verdict and directed stated. therein refusing erred Honor his “That eleventh ground, trial, the upon made a new
motion follows, to wit: “ the that, with coupled is so excessive verdict ‘That than one-half in less the jury returned it was fact that them, and further submitted was case hour after dollars thousand fifteen only sought that the fact of puni- the exclusion consented voluntarily and damages of prejudice the result that it was it shows damages, tive delibera- a mature founded upon and caprice, and issue presented.’ tion facts that the have held
“Whereas, Honor should his cause, estab- in the of record stated, appear which therein result verdict of law aas proposition lished granted have should prejudice, caprice ground. motion this requiring ordering erred his Honor “That with counsel, to proceed of its objection over case, there when trial and the the jury
the drawing erred and he present, veniremen twenty-four were been had extra venire until the trial to postpone refusing answered. and had summoned objection upheld have
“Whereas, Honor trial a postponement allowed the defendant had summoned been venire extra until the benefit have had the defendant answered, so *14 the jury.” draw which to from venire a full of for appel- Lyles, & Lyles & Shand Shand Messrs. the acts should The evidence lant, cite: confined 278; C. 198; 55 S. 45 C. S. C. 33 S. alleged: negligence not Issues 557; C. 89 378. 435; C. S. S. 76 C. 489; 67 S. 62 C: S. jury: be sent pleadings raised 252 HoRsíoRd v. Co,
Argument of Counsel.
[92
C.
S.
1;
66 S. C.
246;
67 C.
S.
74 C.
136;
S.
102;
S. C. 407.
80
is not
machinery
presumed
its
Defect
breaking
from
its
to perform:
72 C.S.
78 C.
101;
A
S.
472.
failure
safe
place
and the
machinery
allegation
one
differs from safe
does not include the other:
C.
S.
457;
C.
15
S.
470;
70
C.S.
100, 126,
72
346;
Master’s
Bailey
Liability, sec. 79.
There is
presumption
negligence in
cutting
belt
too short: 81 S. C.
31;
S. C.
78
481.
must show
Plaintiff
the negligent servant zvas not a
his: 51
fellow-servant of
92; C.S.
84 C.S.
286. Who are
72 C.S.
fellow-servantsf
71 C.
237;
S.
53;
22 C.
S.
87 C.
558;
S.
449;
70 C.S.
95;
C.S.
53;
77 S. C. 427. The
71
his fellow-
servant were performing routine
C.S.
duty:
101,
264,
72
243;
77 C.S.
78 C. 472.
432;
S.
injury
caused by
plaintiff's
negligence
an
adopting
C.S.
way:
61
unsafe
468;
C. S.
69;
86
S.
78
C. 472.
Instruction as to duty of
servant to
obey
master in apparent danger should not
have been given
S.
93;
15
here:
C.
1;
C. S.
62
C. S.
66
246, 16;
S.
C.
What
67
risks
servant assumes:
S.
470;
70 C.
237,
C. S.
264,
72
347;
238;
S.
80 C.
C. S.
84
287;
70;
S.
86
S.
C.
424;
S.
74
C.
64
C. 212.
Statements
made by
the company
are not
injury
officers of
after
Ev.,
on
it:
binding
270,
on
360;
secs.
Cook on Corp.,
Jones
26 R.
726;
S.
I. sec.
373;
19 C.
compromise
Offers of
are not generally
Ev.,
admissible:
on
293;
sec.
82
Jones
C. S.
465;
88 S. C. 453. Bvidence as to employer’s insur-
ance was improperly admitted:
507;
3 A. & E.
172 N. Y.
552;
Ann. Cas.
80
340;
50 S.
Miss.
602;
73;
W.
36 Wash.
271;
290;
86 Pac.
38 Wash.
N.
81
Y.
381;
Div.
App.
201
Y.N.
479. Remarks
counsel as to employer’s insurance
should have been omitted: 80
S.
352;
C.
84
108;
S. C.
408;
135;
N. Y.
369;
90 Me.
3 A. & E. Ann. Cas.
552;
630;
66 Hun.
81 Pac. 131;
Messrs. Nelson & Gettys, contra, cite: Conver- sations relating payment expenses and wages were a *15 258 v. Co.
Horseord Grass 1912. C. 253. 650; Ruling Rich. S. the res 12 72 part gestae: of trial motion new in presiding Judge reprising of it ivas must on which regarded against facts C. 784; 534; Pa. R. 80 S.) S. moved: 85 16 A. L. (N. 352; 786, 911; 54 1042. was not E. 55 Verdict S. E. S. C. 117; 65 26 S. argument: prejudiced by testimony C. 242. There to S. was no in sending error C. an 440. issue master 41 S. furnishing place: unsafe need not custom other mills loose show having Plaintiff C. C. 420; 60 C. 61 C. 153; 468; S. 86 S. S. S. pulleys: 72 229. was the work to the rule doing according Plaintiff C. C. 56; the master: 61 489. S. S. 71 Instruction as C. place master is correct: 84 S. duty of 89 furnish safe 283; C. 387; 65 C. C. 161; 450; S. C. S. S. S. 72 78 may Servant assume master has ordinary exercised 482; 346; care in 66 S. C.S. selecting machinery: C. 72 12, 1912. The first was delivered opinion by
August an for dam- Gary. This is action Chief Justice to have ages, plaintiff through been sustained alleged by defendant, acts of the he employed while was wrongful to work its in glass factory. ques- material complaint, of the allegations involved, are as follows:
tions 1910, May, “That the 6th day on or about room of blowing was employ ordered manager, its said factory, work, factory, blacksmith'shop do in the said certain which assist in on to wit: belt placing pulley air said blacksmith shop, operates compresser, an belt around small which pulley, operated by being motor, which was revolving rapidly; plaintiff, electric pulley workmen, belt other was ordered said put with together the air operated compresser. around the which larger pulley, Hohsrord *16 Opinion [92 of the Court. S. C. “That said belt was too short or to be on tight, operated around, said its pulleys, upon and or being placed nearly therefrom, said around it was thrown large pulley, violently head, and struck this on the and violently face and plaintiff him floor, knocked senseless to the and the small con- pulley to revolve at a to beat tinuing great speed, caused said belt and whip this all over plaintiff his and bat- person, bruising him from head foot. tering to “That the aforesaid injuries and damage plaintiff, careless, were reckless, caused wilful and negligent, wanton conduct of the defendant.
“In to failing work, furnish a safe plaintiff to place and at, him work requiring and endeavor to a belt place around two pulleys, one of which was revolving rapidly.
“In to furnish failing plaintiff safe appliances with which work, and a furnishing plaintiff belt which was too tight short, or too to be with operated safety.
“In and ordering requiring plaihtiff, to said belt on put said pulleys, knew, when defendant known, should have that it was too tight and dangerous operate.
“In ordering requiring plaintiff and other employees, to place said belt on said pulley, while one of said pulleys was in motion.”
The defendant denied allegations of negligence recklessness, set up defenses of contributory negli- gence, and assumption of risk. nonsuit,
The defendant made a for a motion was which Honor, It requested refused. also his the presiding Judge, defendant, direct the to find a verdict in favor jury which was also refused. request
The a rendered verdict in favor plaintiff $12,500. trial, for new which made motion
The defendant Honor, His refused, presid- one particular. except trial be unless the that a new granted, ordered ing Judge, the record that the verdict would consent plaintiff Horsíord Term, 1912. consent, $10,000.
reduced gave verdict was reduced. accordingly
The defendant which will-be exceptions, appealed upon reported. specifically, exceptions to consider the
Before proceeding error, part on of those assigning we will first dispose nonsuit, motions in refusing the Circuit Judge, the grounds, on for the to direct a verdict the material sustain that there testimony tending *17 showed that the testimony the or complaint, allegations negligence the guilty contributory the risk. assumed consequently
The contains 140 and pages, “Case” it carefully, have considered is voluminous. testimony We conclusion, testimony have reached the that there was and the material to sustain allegations tending nonsuit, and that the motions for complaint, refused; verdict, also of a were properly direction show to testimony tending contributory negligence risk, than one of more was susceptible and assumption inference, defenses submitted properly and that these were to the jury. this
A statement of the would testimony, prolong detailed to a no useful opinion great length, purpose be subserved. thereby to the consideration proceed specific exceptions.
We First, These exceptions exceptions. and third second The objec testimony. of certain admissibility relate to the case, the trial of upon to testimony tions corre do not exceptions, in those errors assigned was, to the testimony The first objection 2 spond. compromise, to show an to it tended effort pur disclaimed attorneys whereupon plaintiff’s to state the The other failed pose. objections grounds thereof, and, this are before consequently, properly for consideration. Court Horsford
Opinion [92 of the Court. S. Fourth, fifth sixth These exceptions. exceptions to relate remarks made one of jury by plaintiff’s to attorneys. attorneys, in their appellant’s argument, “The these are say: language exceptions which 3 directed is somewhat in and reference must dispute,
be had to affidavit of B. Lyles, and statement of S. J. and P. H. W. Nelson. For the purposes S. of this argu ment, are ourselves, we to confine perfectly willing Nelson, statement of the Messrs. as we have no desire to raise an issue counsel.” between then quote from the
They statement of Mr. Nel- S.W. son, follows, base their argument the facts therein stated: his
“In argument to Mr. jury, Nelson referred to tes- (checks timony and vouchers offered show plaintiff), after payment Horsford his injuries, and referred to the that Mr. Horsford, had told Seibels insurance. I was liability within feet of sitting few Mr. Nelson, and directed attention this part argu- ment. At this B. point Lyles objected J. *18 the request and asked Court to argument, counsel to keep within the record. Mr. Nelson called the attention of the Court to the the Court tó testimony, whereupon ruled about ‘Yes, this effect: keep within the record.’ Mr. Nelson effect, stated the to that he did not jury, wish to out go record, of the for it be a would if he reversal ground did, he thought jury the such a verdict give good that he did wish to run chance of it reversed. any having this, Mr. Nelson state What did to the jury was about Mr. had stated that insurance; Seibels had they liability that we did not whether know these payments came from insurance I company. the not under- glass company did Court Mr. Nelson to desist from stand the directed argu- the ment lines which was along interrupted by Lyles, Mr. further than but after interruption, making jury statement, record, that he not wish out I did to of the go
Horsrord this line of argu- am Mr. Nelson not dwell upon sure did ment, was, all Carolina Glass and about he did say it has made certain payments plain- claims Company vouchers offered evidence), tiff to checks and (referring insurance, but Mr. said had and we do liability Seibels or insurance not know whether the glass company company, know, amounts; these as we do not whether paid actually these or the insurance company, paid glass company bills, we did not the verdict would be paid, know whom by if the rendered one for the plaintiff.” Mr. remarks objected Lyles When B. J. insurance, and as to the matter of liability P. H. Nelson within counsel to keep asked the Court to request dis- record, counsel so requested, whereupon Court further out of the record. No go claimed desire objection was made to the line of argument pursued circumstances, the must these exceptions counsel. Under be overruled. dam- action for punitive The cause of exception.
Seventh have withdrawn, attorneys the appellant’s ages to the rights this was prejudicial show wherein failed to the defendant. refer necessary It is ninth exceptions.
Eighth these to show complaint allegations be sustained. cannot exceptions has been already eleventh exceptions.
Tenlh and What of these exceptions. said disposes One of exceptions. allega thirteenth
Twelfth and the failure of defendant tions negligence, work, a safe place 4 to furnish for the of show was competent, purpose *19 of the place. the condition ing fifteenth,
Fourteenth, and seventeenth excep- sixteenth make the that there was point, These exceptions tions. has to establish negligence. What testimony tending of these exceptions. been disposes said already 258 Horseord
Separate Opinion. [92 S. C. . Eighteenth this exception. is con exception When sidered, in connection with the it entire will charge, be found to free be from error.
Nineteenth, twentieth, twenty-first twenty-second In these contends that exceptions. exceptions appellant the evidence admitted of the inference that which his as guilty negligence, contributed to injury cause. proximate
What has been said of this already disposes question. Twenty-third has exception. What been said dis- already poses of this exception.
Twenty-fourth twenty-fifth These exceptions. excep- error, tions on assign of the Circuit part in not Judge, risk, holding plaintiff assumed and are disposed of by what has been said. already
Twenty-sixth exception. There is in the record nothing tending show that the verdict was the result of prejudice or caprice.
Twenty-seventh exception. attor appellant’s did not neys this argue exception, but waiving objection, cannot be sustained.
I think the be Circuit Court should judgment affirmed, but other members of the Court are of fourth, opinion fifth and sixth exceptions sustained, reversed, of the Circuit Court is judgment and the remanded case for new trial. I am unable to resist the con Woods. Justice
clusion matter universally recognized extraneous in the trial of highly prejudicial, issues like those case, in this
involved into the evidence brought 3 and argument against objection of defendant’s
counsel, and that for that reason the defendant did a fair not have trial. There can be no doubt on the bench or at the bar that an action an employee against employer recover damages 'both personal injury *20 £ v. Co. HorsRord Grass Term, 1912. into the evidence reason forbid authority bringing employer’s fact that is protected by the defendant argument a mani- has insurance. or argument evidence liability Such from the fest the carry jury away and strong tendency the legal real issue and to lead them to regard carelessly else the that some one of the defendant on rights ground reason that will have to This is the only the verdict. pay testimony can be to use assigned attempting duties and pressing the most manifest One of argument. influences of is prevent not of Courts but lawyers only into the administration their way this kind from finding entire common- In the of this justice. discharge duty concerned, in evidence for the use wealth is deeply and waste injustice, of such influences produces argument at public and labor Courts and juries great time cost. out under
In this instance evidence was brought Seibels, conversation between guise Brewer, the of the defendant president, manager a conversation as to any germane matter company. Such issue on trial but subject objection, was here used as a medium for before getting issue. There to the prejudicial testimony entirely foreign was no object the defendant’s counsel to ground to educe as to insurance questions tending testimony because contained no reference to the questions subject and counsel could not that the answers would be anticipate came, incompetent. answer counsel incompetent When did but object generally, the Court responded by saying the answer was out. already however, said,
It that the objection sustained, because counsel did not move to strike cannot be that, rule is established when out. The general indisputably a trial statements of witnesses incompetent in the course of either from accident or when are brought might counsel to be erroneously, thought by reasonably, though Horsford Separate Opinion. [92 S. C. is to can afford Court competent, remedy *21 to disre instruct the jury motion to strike out and grant jury from the the gard testimony. injury resulting statement is but heard the having incompetent regrettable, and trial accidents the cannot be because of such stopped Wideman, mistakes liable to occur trial. v. every in State 421, 119, 769; Adams, 68 68 C. 46 v. S. S. State S. E. 216, 676; Co., 47 v. Ins. 72 C. Hagins S. E. Ætna S. Life 683; 284, Co., 51 v. S. Winnsboro Granite 76 C. Keys E. S. E. But when and testimony manifestly incompetent preju- dicial is adduced for the such testimony purpose having influence the the who adduces it will not be jury, party allowed to hold his verdict that do and assert the Court can the unfair the nothing against state- advantage having ment the before jury, it out and beyond striking instructing in it does not lie the it. In such case jury disregard has that, he mouth of the to say, although offending party the Court in testimony, irrelevant and brought prejudicial It makes cannot him the benefit of it. entirely deprive not move no difference defendant’s counsel did strike made and out the Had the motion been testimony. advan- still have the unfair had granted he before the which tage ought having testimony jury have not to offered. can be satisfied only by Justice relief of a to the complete subject new trial. Reference was still more In written argument objectionable. Nelson, statement of facts made Mr. by accepted W. S. defendant, P. H. Nelson is said that Mr. counsel for by Horsford had told that “Mr. stated in Seibels argument insurance,” for' that Mr. Lyles had they liability asked the Court “objected argument record,” Mr. Nel- within keep counsel request on attention to called the Court’s son “Yes, record;” within the keep said: Court subject, remarks, statement Mr. Nelson’s up summing Horspord
Rep.3 that the Carolina Glass all he “about did say continues: certain plain- claims it has made payments Company offered evidence), tiff to checks and vouchers (referring we insurance and but Mr. said had liability Seibels com- do not or insurance know whether the glass company bills, did not whom the these know pany paid rendered one for verdict would be if paid plaintiff.” that a
The inevitable conclusion party allowed to hold verdict obtained under such circumstances enforced and illustrated in cases. many respect With testimony as to -insurance the Court of employer’s Supreme *22 340, said, ill Herrin v. 80 Miss. 31 Mississippi Daly, So. issue, on the throw light “It not conceivably 790 : could than to seduce verdict no other tendency and could have company, on the that an insurance ground In v. defendants, be affected.” Cosselmon Dunfee, asked, 507, 494, “Do N. was question Y. 65 172 N. E. insurance for accidents carry know whether you the extent of hold- went to their the Court employees?” to hold his ver- not be allowed should ing plaintiff was ruled out because question dict although on the mind question improperly produced had In such insurance. there was impression 73, McDonnell, Pac. v. 36 78 Iverson Wash. the cases of Brick 82 etc. Co. (Wash.), 202, Washington v. and Westby were held to be 271, ground questions similar Pac. inadmissible evidence holding cases Other reversal. 563, Co., 140 Cal. 74 Iron Works Llewellyn Roche v. are: Woodall, v. 115 Tenn. Co. 147; Prewill-Spurr Mfg. Pac. 623; Barrett v. Bonham Oil and Cotton Co. 605, 90 W. S. 602; Co., v. 38 Seattle Lumber Lowsuit 57 S. W. (Tex.), 431; v. Blanchard Olds Gasoline 290, Engine Pac. 80 Wash. 319, 126 Works, W. App. 142 Mo. to the applied been argument. rule has
The same Woodell, supra; v. Hollis v. Mfg. Co. Prewill-Spurr 262 v. Horsford Co.
Concurring Opinion.
[92 S. C.
United
Co.,
States
49,
55;
320 Pa.
69 Atl.
A.
George
Fuller 664;
v.
Darragh,
Ill. App.
v.
Trembly
Harden,
383,
162 Mass.
972;
38 N. E.
Brewing
Lone Star
Co. v. Voith (Tex.
City App.),
1100; Coe et al.
S. W.
v. Van
315,
33Why,
Col.
On the other I points concur in the opinion the Chief Justice. concurs. Watts Justice *23 concurs in the result.
Mr. Fraser Justice Hydrick. I concur in this opinion Justice applied to facts of this case. But I reserve my opinion as to whether such not be admissible in a case where appeared plaintiff’s resulted injury from reckless, wilful or malicious acts of defendant. In such a case, it might reasonably inferred such conduct was insurance, and, induced reliance if punitive awarded, are damages general rule is that all the facts and circumstances should be laid before the order the more they may intelligently and award justly proper punishment.