Opinion
10047
July 19, 1918.
Before SHIPP, J., York, Spring term, 1917. Appeal dismissed.
Action by Zula Horton against the Pullman Company. From an order setting aside verdict for punitive damages, plaintiff appeals.
Mr. J. Harry Foster, for appellant, submits: There was evidence tending to support the verdict: 105 S.C. 287; 73 S.C. 503; 68 S.C. 55; 25 S.C. 133; 63 S.C. 576; 103 S.C. 113; 23 Am. St. Rep. 356; 42 Fed. Rep. 484; 129 Am. St. Rep. 67; 89 S.C. 286; 100 S.C. 284; 98 S.C. 338; 101 S.C. 11; 91 S.C. 71; 89 S.C. 432; 34 L.R.A. 205; 59 Am. St. Rep. 896; 24 Am. St. Rep. 437; 74 Miss. 782, 2 Neg. Rep. 586; 24 Em. St. Rep. 434; 58 Ga. 216; 24 Am.Rep. 689; 53 Miss. 200; 24 Am. Rep. 437; 2 Am. Rep. 39; 100 Am. St. Rep. 915; 15 Am. St. Rep. 753; 26 Cyc. 1519; Thompson on Corporations, 2d Ed. 5456; 59 Am. St. Rep. 897; 15 Am. St. Rep. 753. That granting new trial on issues not raised was error: 72 S.C. 419; 86 S.C. 544; 88 S.C. 88; 84 S.C. 477; Rule 77; Rule 18 Circuit Court; 72 S.C. 411; 35 S.C. 609; 55 S.C. 450; 53 S.C. 132; 78 S.C. 127. An order granting a new trial when based on an error of law, is appealable: 102 S.C. 2; 92 S.C. 368. As to motion, by respondent, to dismiss appeal: Code of Procedure of 1912, sec. 216; 96 S.C. 403; 65 S.C. 443; 54 S.C. 498; 72 S.C. 262; 66 S.C. 542; 65 S.C. 444; 64 S.C. 113; 66 S.C. 130; 63 S.C. 397.
Messrs. Hart Hart, for respondent, submit: That the two causes of action alleged in the complaint, united at the ad damnum clause: 73 S.C. 522-523; 65 S.C. 448; 105 S.C. 151-154. As to the journey having been interstate: 147 U.S. 101-117; 105 S.C. 287-291; 106 S.C. 155-158.
July 19, 1918. The opinion of the Court was delivered by
Plaintiff brought this action to recover actual and punitive damages. She testified that in September, 1916, she was a passenger on one of defendant's cars from Charlotte, N.C., to New York City; that, although the conductor and porter who had charge of the car knew her destination, they put her off at Newark, N.J., a station about six miles from New York, telling her that she had arrived at her destination; that she did not discover the mistake until after the train was moving off from the station, when she called to the Pullman conductor, who was standing on the end of a car, and told him that she had been put off at the wrong station, and he called back to her to take the next train into New York, which she did, arriving there about 30 minutes later; but she says the later train had no Pullman accommodations, and the cars were crowded with negroes and drunken men, and she was unable to get a seat, and had to stand up — at least part of the time.
Defendant moved for a directed verdict as to punitive damages for insufficiency of evidence. The motion was refused, and the jury found for plaintiff $500 actual damages, and $1,000 punitive damages. Defendant moved for a new trial on several grounds, and, in any event, for a reduction of the verdict as excessive.
After having had the motion under consideration for some time, the trial Judge stated his intention to grant a new trial, unless the verdict for punitive damages should be remitted, and directed the attorneys to prepare an order to that effect. Defendant's attorney proposed and submitted an order which absolutely set aside the verdict for punitive damages, and giving as the sole reason therefor that, as plaintiff was on an interstate journey, the case was brought within the Federal law, under which the verdict for punitive damages could not be sustained in the absence of ratification by defendant of the tort of its servants. Plaintiff's attorney gave notice of intention to appeal from that order, and defendant's attorney gave notice that he would ask that it be sustained on the additional ground that the evidence was insufficient to sustain it. In the meantime, plaintiff's attorney entered up judgment on the verdict for actual damages, issued execution therefor, and ordered the sheriff to make the money. Thereupon defendant paid the judgment, had it marked satisfied of record, and then moved this Court to dismiss plaintiff's appeal, on the ground that all damages for a single tort must be recovered in one action, and that a new trial cannot be had for punitive damages after the judgment for actual damages has been satisfied. We reserved decision of the motion to dismiss until after the hearing on the merits.
We are of the opinion that the motion to dismiss must be sustained on the authority of Greer v. Western Union Telegraph Co., 105 S.C. 147, 89 S.E. 782. While the facts of the two cases are slightly different, the principle involved and decided in the Greer case is identically the same as that upon which defendant's motion is based.
While this view of the case makes it unnecessary to consider defendant's sustaining ground, nevertheless, to save plaintiff's attorney any embarrassment growing out of the situation, we do not hesitate to say that the evidence was not sufficient to sustain the verdict for punitive damages under the law as applied in this State, because it does not warrant any reasonable inference of an intentional or wilful dereliction of duty on the part of either the conductor or porter. We express no opinion as to whether the facts brought the case under the Federal law, or whether under that law they were sufficient to sustain a verdict for punitive damages.
Appeal dismissed.