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+"{\"id\": \"12121833\", \"name\": \"PARKER v. BATES, TREASURER, ET AL.\", \"name_abbreviation\": \"Parker v. Bates\", \"decision_date\": \"1949-11-18\", \"docket_number\": \"16284\", \"first_page\": \"52\", \"last_page\": \"79\", \"citations\": \"216 S.C. 52\", \"volume\": \"216\", \"reporter\": \"South Carolina Reports\", \"court\": \"Supreme Court of South Carolina\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-11T02:48:34.820669+00:00\", \"provenance\": \"CAP\", \"judges\": \"Baker, C. J., and Fishburne, J., concur.\", \"parties\": \"PARKER v. BATES, TREASURER, ET AL.\", \"head_matter\": \"16284\\nPARKER v. BATES, TREASURER, ET AL.\\n(56 S. E. (2d) 723)\\nMessrs. Nettles & Horton and Benj. A. Bolt, of Green-ville, for Plaintiff,\\nMessrs. John M. Daniel, Attorney General, T. C. Callison and R. Hoke Robinson, Assistant Attorneys General, of Columbia, for defendants, and Robt. McC. Figg and O. T. Wallace, of Charleston, and Edgar A. Brozan, of Barnwell, of Counsel for Defendants,\\nNovember 18, 1949.\", \"word_count\": \"7846\", \"char_count\": \"46251\", \"text\": \"Stukes, Justice.\\nThis action was brought in the original jurisdiction, in accord with prior permission, and heard at a special term in September 1949. It embodies attack by a Greenville citizen and taxpayer upon the validity of Act No. 344 of the Acts of the General Assembly of 1949, 46 Stat. 768.\\nIt was entitled, \\\"An Act to allocate funds to the counties of the State for the construction of health centers, hospitals or for other public purposes; and further relating to the fiscal affairs of the State.\\\" Section 1 appropriated from the general funds of the State, admittedly surplus, $2,584,000.00 to the respective counties at the rate of $40,000.00 per county plus $6,000.00 for each member of the House of Representatives. It was provided that the appropriations were, quoting, \\\"for use in: (a) the erection of hospitals and/or health cen ters and/or for matching grants by the bederal Government for the erection of hospital and/or health centers, (b) for the purpose of paying off existing bonds sold for the erection and/or equipping of hospital and/or health centers, (c) for operation of county hospitals and/or health centers, (d). for purchase of equipment and supplies for hospitals and/or health centers, (e) for hospitalization of indigent citizens, (f) for any other eleemosynary hospitals in said counties whether or not such hospital is a county or municipal owned institution, (g) or in the event any health center or hospital has been erected and/or equipped with county funds, the sums herein provided may be used as reimbursement to such county of costs of such erecting and equipping thereof, and (h) and/or for other public uses.\\\"\\nUpon passage the Governor vetoed original provisions which gave control of expenditures in the counties to the respective legislative delegations, and these vetoes were sustained. Item (h) above was also vetoed by the Executive but the veto was overridden and it is a part of the law before us. The mechanics of this procedure were followed as outlined in the State Constitution of 1895, Art. IV, sec. 23. The veto power is a part of the legislative process. Doran v. Robertson, 203 S. C. 434, 27 S. E. (2d) 714.\\nIn the brief of plaintiff the constitutionality of the act is challenged as follows:\\nI. The provision of the Act permitting the money to be used for privately owned eleemosynary hospitals is invalid because it is a grant of public funds for a sectarian purpose.\\nII. The provisions of the Act permitting the money to be used \\\"for other public uses\\\" is invalid because it fails to specify the uses.\\nIII. The hospital and health center provisions of the Act are invalid because they constitute a use of State funds for a county purpose.\\nOur consideration might well be limited to the foregoing but other relatively minor points arose in oral argument, to which we shall also make brief reference. General observations which are applicable will be first stated and then plaintiff's specifications of alleged unconstitutionality, reproduced above, will be discussed and decided seriatim.\\nOf primary importance are the long established rules which were concisely set forth in Moseley v. Welch, 209 S. C. 19, 39 S. E. (2d) 133, 137, as follows: \\\"We approach the consideration of the various constitutional grounds upon which this legislation is challenged with the following well settled principles in mind: The supreme legislative power of the State is vested in the General Assembly; the provisions of our State Constitution are not a grant but a limitation of legislative power, so that the General Assembly may enact any law not expressly, or by clear implication, prohibited by the State or Federal Constitution; a statute will, if possible, be construed so as to render it valid; every presumption will be made in favor of the constitutionality of a legislative enactment; and a statute will be declared unconstitutional only when its invalidity appears so clearly as to leave no room for reasonable doubt that it violates some provision of the Constitution. Santee Mills et al. v. Query et al., 122 S. C. 158, 115 S. E. 202; Clarke v. S. C. Public Service Authority et al., 177 S. C. 427, 181 S. E. 481; Ellerbe v. David, County Treasurer, et al., 193 S. C. 332, 8 S. E. (2d) 518; Pickelsimer v. Pratt et al., 198 S. C. 225, 17 S. E. (2d) 524.\\\" This quotation was also approvingly included in the opinion in the very recent decision of Gaud v. Walker, 214 S. C. 451, 53 S. E. (2d) 316.\\nCounties are subdivisions of the State, subordinate and subject to legislative control, created and existing with a view to the policy of the State and serving as its agencies. Generally speaking they function as such and as instrumentalities of the State for purposes of political organization and local administration. 14 Am. Jur. 185, 186, 188, Counties, \\u00a7 3, 5. This conception of a county is supported by our decisions and many others which are cited in the footnotes to the text. Chesterfield County v. State High way Department, 191 S. C. 19, 3 S. E. (2d) 686, 698, and earlier cases cited in the opinion. There it was said: \\\"The County is but an agency or arm of the State for governmental purposes, and privileges conferred upon counties and grants to them by the State, such as those here said to exist, are merely for the more convenient performance of the State's governmental functions\\\". Plaintiff is prone in argument to disregard the true status of a county and to treat it as a sovereignty separate and apart from the State with distinct revenues and purposes, which it is not. 20 C. J. S., Counties, \\u00a7 1 p. 755. Except for the constitutional provisions relating to counties they are subject to the plenary control of the legislature of the State, even to the extent of abolishment.\\n\\\"Generally, where a surplus remains after the accomplishment of the purpose for which an appropriation is made, it may be diverted to other causes,\\\" which means \\\"causes\\\" for which taxes may have originally been levied. 42 Am. Jur. 776, Public Funds, \\u00a7 80. Annotation, Ann. Cas. 1917B, 867. Manifestly there can be no unconstitutional diversion of surplus funds, as there was in the legislation condemned in State ex rel. Edwards v. Osborne, 193 S. C. 158, 7 S. E. (2d) 526, and in the second suit of the same title, State ex rel. Edwards v. Osborne, 195 S. C. 295, 11 S. E. (2d) 260. See the tangent case of State ex rel. Brown v. Bates, 198 S. C. 430, 18 S. E. (2d) 346.\\nThere is no established segregation of tax sources between State and counties. Both may levy ad valorem taxes on property but the State has found it unnecessary to do so in recent years, depending upon excises, income taxes and the like. Likewise the counties may, and do, derive income from licenses of various kinds, road taxes, etc. In impressive amounts the proceeds of numerous levies by the State are in part divided annually among the counties by varying formulae, which proves the inaccuracy of the argument that the counties are confined in the accomplishment of their constitutional purposes to \\\"county taxes.\\\" The follow ing is from the State appropriation act of 1948, sec. 69, 45 Stat. at Large, page 2178:\\n\\\"Item 1. Aid to Counties:\\nIncome Tax.$ 1,875,000.00\\nAlcoholic Liquors Tax . 2,546,000.00\\nBeer and Wine Tax . 378,000.00\\nInsurance Tax. 475,000.00\\nBank Tax. 120,000.00\\nMotor Vehicle Dealers' Licenses . 40,000.00\\nGasoline Tax. 3,400,000.00\\nGame Protection Fund. 110,000.00\\nTotal (Item 1) Aid to Counties .$8,944,000.00\\\"\\nHospitalization and other aid to the sick harm constituted approved governmental activities for many generations and this court had recent occasion to expressly declare that expenditures therefor by state and county may be validly made under our constitution. Smith v. Robertson, 210 S. C. 99, 41 S. F. (2d) 631. To the same effect is the older case of Battle v. Willcox, 128 S. C. 500, 122 S. E. 516.\\nSince hospitalization and other aid to indigent sick is a proper state purpose there is no constitutional or other legal reason why the State could not from its tax funds erect and maintain a hospital in every county, of uniform size and expense. This will hardly be done for the needs vary in the counties on account of their respective populations and available existing hospitals and other health conditions and facilities. However, the consideration demonstrates the validity of the lump sum appropriation of $40,-000.00 per county. The legislature went further, in recognition of the larger needs of the heavier populated counties, and provided $6,000.00 additional to each county per member of the House of Representatives, and the number of members per county is measured by relative county population. Const., Art. Ill, sec. 3. This partial uniformity in the distribution among the counties is not embraced in plain tiff's \\\"questions involved\\\" but it was referred to in oral argument and has been considered without avail to plaintiff. It cannot fairly be said to be arbitrary or capricious.\\nThere is a compelling, practical reason for a uniform starting sum for each county, here $40,000.00. A health center building is apt to cost as much to build in a small, poor county as in a comparatively large, rich one; and as much to equip and maintain. Administrative expense is also likely to vary little, compensation of skilled personnel, etc. Health centers have been here referred to rather than hospitals because the aggregate sum which will accrue to the largest county is pitifully inadequate in relation to the present-day cost of a hospital. It can at best be but a modest contribution to such an institution. The statement went unchallenged in argument that the current construction cost of hospitals- is about $10,000.00 per patient-bed.\\nPlaintiff's first point of attack anticipates use of the appropriated funds for the aid of sectarian hospitals but no instance of attempt or intention to so apply any part of the funds is specified. The pertinent constitutional provision is quite broad, Art. XI, sec. 9, as follows: \\\"The property or credit of the State of South Carolina, or of any county, city, town, township, school district, or other subdivision of the said State, or any public money, from whatever source derived, shall not, by gift, donation, loan, contract, appropriation, or otherwise, be used, directly or indirectly, in aid or maintenance of any college, school, hospital, orphan house, or other institution, society or organization, of whatever kind, which is wholly or in part under the direction or control of any church or of any religious or sectarian denomination, society or organization.\\\"\\nThe following is quoted from 42 Am. Jur. 767, Public Funds, \\u00a7 66 : \\\"Under a constitutional prohibition that no appropriations shall be made for charitable purposes to any denominational or sectarian institution, it has been held that the department of welfare cannot contract, or expend funds appropriated for its use, for the treatment of indigent sick in sectarian hospitals. The fact that a sectarian hospital makes no profit from treatment of indigent sick does not prevent the operation of the constitutional provision that no appropriations shall be made for charitable purposes to any denominational or sectarian institution.\\\" See also, annotation, 142 A. L. R. 1083.\\nIn the recent (1949) case of Kentucky Building Commission v. Effron, 310 Ky. 355, 220 S. W. (2d) 836, the Court of Appeals of Kentucky had before it an act of the legislature of that state which was passed, like ours before us now, to take advantage of the federal act, 42 U. S. C. A. \\u00a7 291 et seq.. providing aid to States and their subdivisions in the construction and operation of hospitals and medical centers, whereby allocation of State tax funds to non-profit, non-publicly owned hospitals was authorized. It was held that church-founded and controlled hospitals might be included in the allocation if they were operated on a non-profit basis, open to the public of all creeds and not teaching religion or preferring any one sect over another. We are not prepared to go so far and we think the plain meaning of our constitution is that no public funds may be allocated in any manner to any hospital or health center which is, quoting, \\\"wholly or in part under the direction or control of any' church or of any religious or sectarian denomination, society' or organization.\\\" Distinction is found in the varying provisions of the Kentucky and South Carolina constitutions, which will appear from a reading of the cited decision.\\nHowever, as indicated, no attempted or intended violation is alleged as in view and it may not be assumed that the governing board of any county will violate the constitution in the application of funds. If such situation should arise in the future in any county, the courts are open for appropriate preventive action.\\nThe second point made by plaintiff has given more concern. It avers the unconstitutionality of item (h) which, quoted above, is an alternative appropriation for other public uses. We have seen that the seven preceding items all relate to public health, hospitals and health centers and payment or refund of the cost of construction, equipment and maintenance of them. It is argued by the defendants that item (h) constitutes a valid grant of state funds in aid of the counties for comity purposes, to wit, any purposes within the constitutional sphere of the county. However, we are constrained to hold that the argument is untenable in view of the expressed public health purpose of the act which is evidenced by the numerous preceding provisions all closely knit to that end. The legislative purpose is not evident to make a blanket grant in aid of the counties as is regularly done in the general appropriation acts, to which we have adverted, and the appropriation here cannot fairly be taken to be such, but is one, as seen, for aid of the counties in solution of the problem of public health. Item (h) is foreign to the manifest purpose of the act, and for that reason invalid. If allowed to stand, it might cause defeat of the purpose in one or more counties.\\nPlaintiff particularly invokes an excerpt from sec. 23 of Art. IV of the constitution, constituting one sentence of a lengthy paragraph, as follows: \\\"Bills appropriating money out of the Treasury shall specify the objects and purposes for which the same are made, and appropriate to them respectively their several amounts in distinct items and Sections.\\\" More will be later said concerning the section from which the quoted sentence is taken and the context will clarify the intent of it. This final item (h) is, as has been said, a departure from the scheme of the act and, in that setting, does riot comport with the cited provision, which was undertaken in this instance to be followed by the legislature, and should, we think, be stricken as unconstitutional. This holding should not be construed to question the ordinary grants in unspecified aid to the counties contained in the State general appropriation acts. Plaintiff concedes the propriety of the latter which his counsel denominated in argument \\\"kickbacks\\\" to the counties.\\nReason for the distinction exists in the fact that the now customary grants in aid to the counties are taken into ac count in the general State appropriation acts (see quotation from that of 1948, supra), and are also regularly anticipated in the several county supply acts which provide for the expenditure of the grants and other county funds in conformity with the constitutional plan of State appropriations upon which plaintiff relies. In the act before us the legislature set out to itemize, which was done to include seven kindred, specified public uses or purposes, but all of that careful handiwork would be undone by sustention of the alternative, incongruous appropriation for \\\"other public use.\\\"\\nThe Governor accurately appraised the legislation and said in his veto message, in part, as follows: \\\"I am in entire agreement with the fundamental purpose of this legislation, which is to encourage the development of South Carolina's health program by furnishing State funds to assist the counties of the State in providing hospital and health center facilities, as a means of giving the people of every section of South Carolina an opportunity to obtain better medical and surgical care and treatment.\\n\\\"Because of the importance of this health program to our people, I approve this Act with the exception of the following items, which I hereby veto: \\\"\\nPart of plaintiff's attack upon this item, which is based upon the foregoing quotation from Art. IV, sec. 23, of the constitution, is attempted to be also related by him to sec. 3 of Art. X which is: \\\"No tax shall be levied except in pursuance of a law which shall distinctly state the object of the same; to which object the tax shall be applied.\\\" This provision was successfully invoked in the gasoline tax diversion cases of State v. Osborne, supra, but is irrelevant here because the funds appropriated are surplus funds. The point is elaborated in the outset observations, supra. To the authorities there cited to that point may be added the opinion of Justice McIver in State ex rel. Branch v. Leaphart, 11 S. C. 458, which involved State treasury surplus and the applicable constitution (of 1868) was the same in this respect as the present (1895). The taxes which resulted in the surplus now appropriated were levied for the support of the government and it was expressly held in Alderman v. Wells, 85 S. C. 507, 67 S. E. 781, 785, 27 L. R. A., N. S., 864, 21 Ann. Cas. 193, that an act entitled \\\"to raise revenue for the support of the state government \\\" is, quoting, \\\"a distinct statement of the object to which the tax shall be applied.\\\" Thus plaintiff's contention of unconstitutionality of item (h) is not precisely in point but the substance of it is upheld for the reason and upon the ground which we have stated.\\nIn view of the foregoing sustention of plaintiff's point II his point III may properly be disposed of almost as briefly as he states it. The contention is that the entire appropriation is invalid because it would constitute a use of State funds for county purposes. But hospitals and health centers, to which the appropriation will be limited under this decision, are a State purpose as well as a county purpose and there is no constitutional or other legal barrier of which we know that prevents the State from dealing with the problem through the agency of its governmental subdivisions, to wit, the counties. There is no comfort to plaintiff in this contention to be found in Smith v. Robertson, supra, 210 S. C. 99, 41 S. E. (2d) 631. It merely involved the power of the county to issue bonds and use the proceeds in aid of the establishment of a State hospital within the county, which has no material bearing upon the question which plaintiff would make. The argument is that the decision was in contemplation of a supposed principle that State funds must be used for State purposes and county funds for county purposes. However, that case expressly held that a hospital is a proper State purpose and likewise a proper county purpose as, we add, a health center is. A citizen and taxpayer is no less a citizen of the State because he happens to live in one county rather than another. Plaintiff fallaciously says in his brief: \\\"The State builds and operates hospitals for the benefit of the people of the State, whereas a county builds and operates a hospital for the bene fit of the people of that county.\\\" There is no such distinctive citizenship. The people of every county are the people of the State, and it is quite common knowledge that frequently people are patients in hospitals of other than their respective, counties.\\nEquality of the burden of taxation is, we agree, a fundamental requirement of the constitution. Art. X. And further we recognize the existence of the principle that the rule of equality and uniformity may be violated by a discriminatory method of distribution of the proceeds of taxation. 51 Am. Jur. 219, 220, Taxation, sec. 165. Commonwealth v. Alden Coal Co., 251 Pa. 134, 96 A. 246, L. R. A. 1916 F., 154. However, this case does not present any such unfair distribution of the benefits of taxation as is condemned by the cited authorities. On the contrary, it comports with the rule stated with reference to the distribution of funds in aid of public education in Murph v. Landrum, 76 S. C. 21, 33, 56 S. E. 850, 854, as follows: \\\"The idea of apportionment of the public school fund involves a division or distribution among counties or school districts according to some reasonable and uniform rule. It is true the General Assembly has discretion to determine the particular rule of apportionment, as, for example, whether it shall be according to population of school age in the respective counties, or according to the enrollment of pupils, or according to the average attendance, or according to some other rule having reasonable relation to the purpose to be subserved by a public school fund and operating throughout the state upon all counties or school districts falling within the reasonable rule or classification. (If) it is to be conceded that while a classification may be adopted so as to deny to one county and give to another the rule of apportionment must be based upon reasonable difference of condition or situation, as, for example, greater illiteracy or less ability to meet the education demands in one county than in another; but the rule of apportionment shall have uniform application to all within the designated class.\\\"\\nThere arises the question whether the conclusion that item (h) is invalid vitiates the whole law or it subsists with that elimination. There are two independent and equally sound reasons for the decision we reach that the law survives the striking out of item (h). First, it falls within the general rule which was last applied in Gaud v. Walker, supra, 214 S. C. 451, 53 S. E. (2d) 316, 329. A substantial and important part of the act involved in that case was stricken as unconstitutional and the remainder sustained with the comment, without citation of authority, as follows: \\\"When this portion of the Act is eliminated, that which remains is capable of being executed in accordance with the legislative intent, wholly independent of that which has been rejected.\\\" Shortly prior to that decision we said in Moseley v. Welch, supra, 209 S. C. 19, 39 S. E. (2d) 133, 144, where a county school act was upheld after numerous provisions were condemned as unconstitutional, again deeming citation of authority unnecessary, that the remaining valid portions constituted, quoting, \\\"a complete act in itself, capable of being executed independently of the unconstitutional parts without doing undue violence to the legislative intent.\\\" Neither of these decisions referred to the saving clause, much less relied upon it.\\nMany other similar decisions from this court may be found by reference to 30 S. E. Dig. 717 et seq. and pocket part supplement, Statutes, Par. 64. The subject is there captioned as follows: \\\"Although a statute may be invalid or unconstitutional in part, the part that is valid will be sustained where it can be separated from that part which is void.\\\" Here the legislature itself has separated the item which we hold void and without it the Act is entirely complete and capable of being executed in accordance with the legislative intent. It will be noted from a reading of the decisions which have been cited and referred to that the rule is not dependent upon the modern legislative device of a saving clause, mentioned above. The rule originated long before such clause came into occasional use. 11 Am. Jur. 834 et seq., 846 et seq.\\nIndeed, the doctrine of partial invalidity very soon followed the recognition of the power of a court to void legislation for unconstitutionality at all. The establishment of this very delicate judicial power was gradual because of regard for the constitutional plan of equality and independence of the three separate departments of government, namely, the legislative, the executive and the judicial. The doctrine under discussion, to wit, partial invalidity, naturally and quickly followed because of the ideal of separation and independence of each of the several branches of government and the reluctance of the courts to encroach upon it. It is universally held that a court should proceed most carefully in the exercise of this, its highest, prerogative, and go no further than it deems absolutely necessary in declaring unconstitutional and void the considered action of the legislature which is composed of the people's popularly elected representatives; but it is justified in going that far, and no further, in order to uphold the constitution because it is the charter of government adopted by the people directly or through their representatives. Properly hesitant to proceed at all in such cases, a court will go no further than it feels impelled in order to uphold the constitution. Invalidation of a separable part of a legislative act without impairment of the remainder logically results. Illustrative cases from our courts which are much older than the invention of the saving clause are the following: State v. Carew, 13 Rich. 498, 91 Am. Dec. 245; and Wardlaw v. Buzzard, 15 Rich. 158, 94 Am. Dec. 148, where it was said: \\\"It was not contended seriously that if one part of an Act was unconstitutional, it vitiated the whole .\\\"\\nPlaintiff argues that the stated rule is not applicable to this Act because the fact that the legislature overrode the veto of item (h) shows that the body would not have passed the Act without inclusion of it and therefore sustention of the remainder would violate the legislative intent. We think this is an assumption without supporting fact or reason and no precedent is cited. On the contrary, in the case of appropriation acts the legislature is quite used to executive vetoes and support or defeat of a veto has never been considered of importance in determining the legislative intent concerning passage of such an act, regardless of the fate of the vetoes. Impotence of the argument is seen in the light of the consideration that the legislative intent is thwarted in part in every case of invalidation of a portion of an act for unconstitutionality, yet validity of the remainder is the rule rather than the exception as is seen by the results of the cases collected in 30 S. E. Dig. and supplement, cited supra.\\nThe second consideration which we apply to the question whether the act is a valid law sans item (h) is likewise conclusive in itself of validity. It is the effect of the provisions of section 23 of Art. IV of the constitution. They are in much detail with reference to the participation of the Executive in legislation, his power of veto and how such shall be handled by the legislature. It is plain with respect to the authorization of the veto of any item or section of an appropriation bill, which that before us is. The pertinent portion of the constitution is here quoted from the cited section: \\\"Bills appropriating money out of the Treasury shall specify the objects and purposes for which the same are made, and appropriate to them respectively their several amounts in distinct items and Sections. If the Governor shall not approve any one or more of the items or Sections contained in any Bill, but shall approve of the residue thereof, it shall become a law as to the residue in like manner as if he had signed it. The Governor shall then return the Bill with his objections to the items or Sections of the same not approved by him to the House in which the Bill originated, which House shall enter the objections at large upon its Journal and proceed to reconsider so much of said Bill as is not approved by the Governor. The same proceedings shall be had in both Houses in reconsidering the same as is provided in case of an entire Bill returned by the Governor with his objections; and if any item or Section of Said Bill not approved by the Governor shall be passed by two thirds of each House of the General Assembly, it shall become a part of said law notwithstanding the objections of the Governor.\\\"\\nIf the residue of an appropriation bill is a valid act after veto of items or sections, and the veto or vetoes upheld, it should follow that the court is ordinarily bound to similarly uphold an appropriation act after voiding an item or section for unconstitutionality. This course seems to be dictated by the provisions of the constitution, to which of course the courts are subject. This difference between a bill or act appropriating money from the State treasury and other bills or acts was noted in the opinion in Doran v. Robertson, supra, 203 S. C. 434, 443, 27 S. E. (2d) 714, 717. The Executive power of veto is ordinarily exercised only with respect to the whole of a bill or joint resolution but with reference to bills appropriating money from the State treasury the constitution expressly makes an exception to the rule and as to them the veto may go to any items or sections without impairing the residue. Surely the courts should generally follow suit and not invalidate an entire appropriation act because of the necessity to declare unconstitutional one or more items or sections of the act.\\nIt was alleged in the complaint and suggested in oral argument that the questioned appropriation is invalid for lack of designated administrators in the counties to discreetly expend the funds, but no authority was cited and we know of none which would sustain the objection. Certainly an appropriation by the State to a county implies the right of expenditure in accord with the terms of the appropriation act, and they are rather detailed here. Every county has a governing board or commission, by whatever name called. Chapter 116, Civil Code of 1942, Vol. 2, p. 1042 ct seq. It happens that the broad powers of the governing board of plaintiff's county were discussed in Ex parte Greenville County, 190 S. C. 188, 2 S. E. (2d) 47. Undoubtedly it is empowered to administer the funds which will be distributed to that county. We have just held that the legislature may vest a county governing board with power to levy taxes, make appropriations, incur indebtedness and issue bonds for county purposes. Gaud v. Walker, supra, 214 S. C. 451, 53 S. E. (2d) 316. In comparison, the implied power to expend this appropriation under the terms of the act appears picayune. There will accrue to Greenville, the largest county, $94,000; to the smallest, $46,000. See apportionment in the House of Representatives, Act 602, 1942. 42 Stat. 1510. The sum appropriated when divided in almost any fashion among the forty-six counties will not yield a very large quotient.\\nIt may be noted that the problems presented by this litigation are not apt to often recur. A sizable State surplus is something new under the sun in South Carolina and at the rate illustrated by this Act will not long survive.\\nOur judgment is that the act under attack, No. 344 of 1949, is valid except the appropriation item (h) which is stricken as unconstitutional; injunction is denied with respect to the other, valid provisions of the act, and the temporary restraining order heretofore issued is dissolved.\\nBaker, C. J., and Fishburne, J., concur.\\nTaylor and Oxner, JJ., dissent.\"}"

sc/12121957.json

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+"{\"id\": \"12121957\", \"name\": \"James K. Douglas v. Robert Fraser, Executor of J. B. Fraser\", \"name_abbreviation\": \"Douglas v. Fraser\", \"decision_date\": \"1827-02\", \"docket_number\": \"\", \"first_page\": \"397\", \"last_page\": \"400\", \"citations\": \"2 McCord Eq. 106\", \"volume\": \"7\", \"reporter\": \"South Carolina Equity Reports\", \"court\": \"South Carolina Court of Appeals\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T22:59:30.456036+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"James K. Douglas v. Robert Fraser, Executor of J. B. Fraser.\", \"head_matter\": \"James K. Douglas v. Robert Fraser, Executor of J. B. Fraser.\\nWhere a bill was filed against an executor for a debt due the complainant by the estate for which the executor had given his own note, it was held, the bill was well brought, and that it was unnecessary to mate the legatees parties, no distribution having taken place, or being alleged] and an order of reference to inquire into the amounts received by the legatees set aside, not being within the allegations of the bill, and the legatees not being parties. An executor having given his own note for a debt due by the estate, does not exempt the estate from liability, and he may be sued in equity, as executor for it.\\nThe bill stated that J. B. Fraser, the defendant\\u2019s testator, in his life time became indebted to Hugh M\\u2019Call & Co,, merchants in Camden, the sum of 8462 70 cents, for goods, wares and merchandise ; that the defendant, after his death, as his executor, took up other goods, wares and merchandise to the amount of 8422 99 cents, for the use and benefit of the estate. That the defendant ^afterwards liquidated the demand by giving- his note for both accounts, amounting in the whole to 8885 69 cents. That the copartnership of Hugh M\\u2019Call & Co., of which the complainant was one, was after-wards dissolved, and upon a division of the effects this note was transferred to the complainant. That a suit liad been brought and a judgment and execution obtained upon the said note, and that the Sheriff' had returned nulla bona upon the execution, by which it appeared that the defendant was insolvent.\\nThe object of the bill was to subject the estate of J. B. Fraser, in the hands of his executor, to the payment of this debt. The defendant put in no answer, but suffered the bill, January, 1825, to be taken pro confesso, against him.\\nAt February term 1825, Chancellor DeSaussure made the following order :\\nOrdered, That tins case be referred to the commissioner to ascertain and report whether the account is properly charged against the estate of J. B. Fraser; also, whether the executor has delivered over the estate to the several persons interested, under the will of the testator; and whether any of them and which of them have settled with the executor for his particular claim against the estate; and whether there are any, and what facts in the case, which discharge such of them as have settled with the executor from the payment of their proportion of the said claim.\\nUpon the reference, the Commissioner Mr. Miller, on the 1st of November, 1825, made the following report:\\n\\\"In obedience to the order of reference in this case, I have been attended by the parties, and find that the account against John B. Fraser, deceased, for articles furnished to him, in his lifetime, by the complainant, and those under whom he claims, amounts to 8462 70 cents. I further find, that after the death of the said J. B. Fraser* his Robert Jane now wife of Thomas Boone, Mary Fraser, now wife of G. S. C. Descharnps, Ladson Fraser, and Elias L. Fraser lived together for some time, during which time the balance of the account exhibited by complainant, amounted to \\u00a7422 99 cents, was contracted by the executor of the said J. B. Fraser for the benefit of his estate and for his children, and is properly charged against the estate. I further find that the executor has not delivered over to the several persons interested, under the will of the testator, the whole of the property to which they are entitled. I further report that the wife of Mr. Deschamps has a receipt from the executor, dated the 2d of December, 1823, for her proportionable part of the judgment obtained by A. M\\u2019Donald, endorsee of Hugh M\\u2019Call & Co., against Robert Fraser, the executor of the estate of J. B. Fraser, on the note given by him for the account against the estate. But as the receipt recognises the judgment as an existing demand against the estate; and as no discharge of the estate by Hugh M\\u2019Call & Co., or the complainant, has been offered in evidence, I deem this receipt given by the executor, insufficient to discharge the estate, or that portion of it to which Mrs. Deschamps is entitled. I further find that Thomas Boone has a receipt from the executor, dated the 3d of January, 1825, nearly five months after the filing of the bill in this case, for his wife\\u2019s proportion of the debts of the estate of J. B. Fraser. None of the other heirs of the estate have exhibited any testimony before me. Upon a review of the evidence, I am of opinion, that the estate of the testator, in the hands of the executor, or of those to whom he has delivered any part of it, is still liable to complainant for $885 09 cents, the amount of his account. I am further of opinion that, under the circumstances of the case, the complainant is entitled to interest on his account from the 1st day of January, 1821, when the account was stated by the executor.\\u201d\\n*On ^le 2CHh of February, 1826, the commissioner made a further report, as follows :\\n\\u201c In addition to my first report, I beg leave further to report, that since that report was made out, the Sheriff of Orangeburg has returned, on the execution of A. M\\u2019Donald, indorsee of J. K. Douglas v. Robert Fraser, that by the sale of the defendant\\u2019s property, he has made upon the said execution $695 83\\u215b, which he has paid over to the plaintiff, J. K. Douglas.\\nThe principal of the debt, in said case, was..$1,051 07\\nInterest on \\u00a7885 69 from 10th October 1823,\\nto the 7th of November, 1825, two years and one month. 129 14\\n$1,180 21\\nCost of said suit. 37 48\\n$1,217 69\\nThen collected by sale. 695 83\\u00bd \\u2014 $521 86\\u00bd\\n\\u201c I beg leave to report that the balance due to the said complainant is $521 86\\u00bd, with interest thereon from the 7th of November, 1825.\\u201d\\nTo these reports the defendant\\u2019s solicitor filed the following exceptions :\\n\\u201c The defendant excepts to so much of the report as charges G. S. C. Deschamps and Boone. And on the ground that interest was allowed on the open account. And, likewise, that there was no evidence before the commissioner as to the priority of M\\u2019Call and Douglas\\u2019 debt.\\u201d\\n*On the 21st of February, 1826, Chancellor Thompson made the following decree :\\n\\u201c The commissioner submitted two reports in this case, to which exceptions were made and argued. It is ordered and decreed, that the complainant James K. Douglas do receive from the said Robert Fraser, as executor of the last will and testament of John B. Fraser, \\u00a7521.86\\u00bd and\\u2019interest thereon from the 7th of November, 1825, being the balance reported by the commissioner as due to the complainant by the estate of the said John B. Fraser.\\u201d\\nFrom that decree, the following grounds of appeal were taken by Miller for the defendant :\\nFirst. That the legatees ought to have been made parties.\\nSecond. That some of the legatees showed that they had accounted with the executor for their proportion of this debt, and others of the legatees had no notice.\\nThird. That complainant had elected to take this debt as a personal one on the executor, and had discharged the estate, and enabled the executor to charge the legatees for this debt; and, therefore, the executor must account and show that the estate is indebted to him, before any degree ought to pass against the property of the legatees.\\nJ. G. Holmes, contra,\\nurged that,\\n1. The executor alone is defendant, and properly so, as the sole representative of the estate.\\n2. The demand is not disputed by the executor, and is regularly against the estate.\\n3. The heirs of the estate are not, and ought not to be parties.\\n4. The executor does not, and the heirs cannot appeal.\\n5. The order of Chancellor DeSaussure was improper, but being interlocutory could not be appealed from.\\n*6. The first report of the commissioner, and the only important one, was made out six months before the meeting of the court, and no exceptions had been filed to it; although the counsel for the heirs had full and explicit notice of it.\\n7. The last report was a mere credit, founded on the return of the sheriff on an execution, which was in court and exhibited to the counsel. But strike out that report, and the only question that can then occur is upon the first report.\\nThe facts stated in that report and admitted by the exceptions show,\\nThat the debt was due by the estate.\\nThat the executor gave a note signed by him as executor for the amount of the account.\\nThat no discharge was given of the debt or account.\\nThat the executor being sued on his note in his individual capacity was insolvent.\\nThat the account is still a subsisting one against the estate.\\nThat the account of Deschamps and wife, heirs of the estate, is a receipt from the executor for money to be applied to the payment of the judgment to him on the note, and, therefore, recognizes the debt after the note was given as a subsisting debt against the estate.\\nThat the receipt of Fraser, another of the heirs, is five months subsequent to the filing of the bill.\\nFeb., 1827.\", \"word_count\": \"2168\", \"char_count\": \"12247\", \"text\": \"Curia, per\\nNott, J.\\nThe only difficulty which has presented itself to the court in this case, has arisen from certain irregularities which occurred in the progress of the cause. The only object of the bill was to subject the estate of the testator to the payment of a certain debt, which it is alleged was contracted for the benefit of the estate; and for which the defendant, as executor, has made himself personally liable. The legatees, or *next of kin to the testator, are not made parties. They are not called upon to contribute. It is not alleged that there is not property enough in the hands of the executor unadministered to pay the debt. It is not alleged that the executor has paid over the estate, or indeed any part of the estate to the persons interested in the distribution. The simple question, therefore, for the consideration of the chancellor was, whether the estate was properly chargeable with this debt. The order of reference of February, 1825, directing- the commissioner to make enquiry and report the evidence in relation to that question, ivas unquestionably correct and proper. But the other part of the order related to matters not embraceed in the bill; and went to involve the interests of persons not parties to the proceedings. That part of the order, therefore, and all the proceedings upon it, must be reversed. The persons ultimately interested in the distribution of the estate have an interest in the payment of this debt, as it goes to diminish the dividends which they will receive. But they have the same interest in every debt which the executor is called upon to pay. If the executor is wasting the estate, or if he is entering into collusion with the complainant to impair their rights, they have their remedy. But it does not belong to the court to volunteer its aid unasked upon the presumption that they are entitled to such relief.\\nThis view of the subject disposes of the two first grounds of the appeal. Indeed it disposes of the whole case. For as it regards the executor, he admits all the allegations in the bill, and is satisfied with the decree. And the court cannot entertain an appeal at the instance of persons not parties to the proceedings. The decree cannot affect them except in the manner abovementioned, and in which they cannot have relief without being made parties, which they have not asked. But I apprehend that the mere circumstance of the executor having *liquidated demand, cannot exempt the estate from the pay-merit of a debt otherwise chargeable upon it. The executor as trustee to trust estate. Carter v. Eveleigh, 4 Desaus. Rep. 19. James v. Mayrant, 4 Desaus. Rep. 591. Montgomery v. Eveliegh, 1 M'Cord's Cha. Rep. 267.\\nThe counsel appear to consider this as a decree against the legatees ; and taken with reference to the proceedings as they originally stood in connection with the reports of the commissioner, it might have admitted of that construction. But modified as the proceedings now are, it can only affect the estate of the testator in the hands of the executor to be administered; and as such must be affirmed.\\nIt is, therefore, ordered and decreed that the decree of the chancellor be affirmed, so far as it went to charge the estate of the deceased in the hands of the defendant as executor.\\nDecree modified.\"}"

sc/12123829.json

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+"{\"id\": \"12123829\", \"name\": \"Joseph Teague, Administrator v. Patsey Dendy and Others\", \"name_abbreviation\": \"Teague v. Dendy\", \"decision_date\": \"1827-05-28\", \"docket_number\": \"\", \"first_page\": \"455\", \"last_page\": \"460\", \"citations\": \"2 McCord Eq. 207\", \"volume\": \"7\", \"reporter\": \"South Carolina Equity Reports\", \"court\": \"South Carolina Court of Appeals\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T22:59:30.456036+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"*Joseph Teague, Administrator v. Patsey Dendy and Others.\", \"head_matter\": \"*Joseph Teague, Administrator v. Patsey Dendy and Others.\\nA suit inequity cannot be maintained against the sureties on an administration bond. The remedy is at law. The sureties after answering in full as to the merits, may object in the answer to the jurisdiction. An answer to the merits does not deprive the defendants of any legal objection insisted on in the answer. It is a sufficient answer to a bill to account, for an administrator, whose administration had been revoked and given to another, to show that he had settled in full with his successor. If there is a mistake in the settlement, it will be opened, notwithstanding the release, The rights of distributees are iixed and prescribed by the state of things at the death ofthe intestate. Maintenance to be paid out of the income. See M\\u2019DowelH\\u2019. Caldwell, ante, p. 43, for the rule. A trustee should, as a prudent man coniine the maintenance of his ward within his income. Cases of necessity may compel one to depart from this rule; but before the court will permit a guardian, trustee, executor or administrator, to break in upon the capital, it will require them to show the necessity, clearly and distinctly. The court must be consulted as to the expediency, before the act is done, when application can be made without defeating the object. Where no accounts have been kept, the court will not suffer a trustee to go into a conjectural estimate to show the necessity of his having broken in upon the capital. The mode of calculating interest is to deduct the credits, at the time the payments or disbursements (as allowance for maintenance) are made from the sum in hand, whether of principal, interest, or income. The remainder constitutes the balance due. If the current expenses exceed the income, the balance must be deducted from the principal, and interest on the remainder allowed. If the income exceed the expenditure, the excess becomes principal to bear interest. An administrator will not be allowed an extra charge for expenses incurred in the ordinary course of administration, but when professional skill or extraordinary aid is required, to which the administrator is not to be supposed competent, his expenses will be reimbursed.\\nThis bill stated that on the death of William Dendy in 1816 or 1817, administration of his estate was granted to the defendants Patsey Dendy and James Young, and that they entered into bond to the ordinary with the defendants Gallanus Winn and Andrew- Winn, as sureties for the faithful discharge of their duties. That in 1819 that administration was revoked, and a new administration granted to the defendant Patsey Dendy alone ; and that she then entered into a second bond with the defendants Andrew Winn and Daniel M. Winn, as sureties. And that in 1823 this administration was also revoked, and administration de bonis non granted to the complainant; and the object of the bill was to compel the defendants to account for the several administrations granted to Patsey Dendy and James Young, and Patsey Dendy alone, &c.\\nThe case came before Chancellor DeSausstjre, on exceptions to the report of the commissioner. As all these exceptions are stated in the judgment of the court, it is unnecessary to repeat them. The chancellor decided on the exceptions, and they were now taken to this court on appeal from this decree.\\nMay 28, 1827.\\nO\\u2019Neall, for the complainants.\\nThe general principle is clear that parents must support their children if they are competent, and not draw upon the separate estate of the child. Cudworth v. Hall, 3 Desaus. Rep. 259. Cruger v. Heyward, 3 Desaus. Rep. 94. Dower is granted to the mother for that purpose. The income of *the child's estate, if the parent is unable to support the child, is the proper fund for maintenance. The executor will not he allowed to break into the capital. M\\u2019Dowell v. Caldwell, ante, p. 43. All necessary expenses are to be allowed. An administrator is always allowed fees which he lias properly paid to counsel, where it was necessary that he should have counsel. Warden v. Burts, ante, p. 78.\\nIrby, contra.\\nThis case involves the rights of the sureties principally. The administratrix is the widow and mother of the children, and besides she is insolvent, and therefore cares not%bout the issue of the suit. If the sureties are to pay the funds laid out by the adminis-tratrix to maintain her family, surely the sureties ought not tobe made liable, unless they have the right to discount the support and maintenance. The income was not competent to the support of the family. If interest be charged on the funds in the hands of the the administratrix, the same rate of interest must be allowed her on the sums she laid out for maintenance. It must be mutual. But the defendants, James Young and Gallanus Winn, settled with Patsey Dendy during her administration, and her discharge is good; and sureties could be made liable only for funds which she may have received from James Young, her administrator. These sureties of the first administrator having settled with the subsequent administra-trix, that settlement is conclusive, no error being alleged. Adequate remedy could have been obtained at law on Mrs. Dendy\\u2019s administration bond. These defendants, the sureties, cannot be sued before she has been called to account and a decree taken against her. Howell v, Blanchard, 4 Desaus. Rep. 5.\\nO\\u2019Neall, in reply.\\nIt is too late, after answering and *going into the accounts to except to the jurisdiction. Wilson v. Cheshire, 1 M\\u2019Cord\\u2019s Cha. Rep. 340.\", \"word_count\": \"2576\", \"char_count\": \"14915\", \"text\": \"Curia, per\\nJohnson, J.\\nBefore entering into the several questions which have been made on the part of the complainant, it will be necessary to dispose of the objections which have been raised on the parts of the defendants, Gallanus, Andrew and D. M. Winn, who stand in the relation of sureties only to the administration bond.\\nThe defendant Patsey Dendy has not answered; nor has she rendered any account of her administration : and these defendants, in their answer, go into an account; but they insist in the conclusion, that, although they have fully answered the bill, \\\"this court ought not to take cognizance of the matter, because the complainant has an adequate remedy at law against them on the administration bonds/' and pray the same benefit from this objection, as if it had been specially pleaded, &c.\\nIn the case of Hoit v. Blanchard, 4 Desaus. Rep. 25, the court lays it down, that a suit in equity cannot be maintained against the sureties on an administration bond, and that the remedy against them is at law : and in the latter case of Glenn v. Connor, decided in the court of appeals, at December term, 1824, the court confirmed the decree of the circuit judge dismissing the bill as to the sureties of an administration bond. That was a case going all fours with this. There the administrator had neglected to put in an answer. The sureties did answer; and, as in this case, insisted on the objection, by way of defence: and Chancellor DeSaussure remarks that the decision was in conformity with the decided cases, and was founded in reason and justice.\\nI have labored to get rid of the objection raised in this case, believing that it was to the interest of these ^defendants, if they were in danger of ultimate liability, that they should be in court to investigate their accounts, as their principal had neglected to do so : and I at one time thought that the circumstance of their having accounted would enable me to do so; but it is a well settled rule of practice, that an answer to the merits does not deprive the defendants of any legal objection insisted on in the answer. We are bound by the decided cases, and it is the defendants' own concern how far they will be affected by it. As to them, therefore, the bill must be dismissed.\\nOn the part of James Young it is insisted, that the bill, as to him, ought to be dismissed ; on the ground that he had fully settled with Patsey Dendy, his successor, all his actions and doings after the revocation of the administration granted to him, and whilst she was the sole administratrix.\\nThere is no doubt of the correctness of this position. It was his duty, on the revocation of the administration granted to him, to pay over the funds in his hands to his successor; and if he had done so, and obtained a release, he would have been discharged. But the evidence on this subject has not been reported; and it is impossible that we can judge of the fact. It was suggested in the argument, that it had been ascertained that some mistake had occurred in that settlement; which if corrected would show that a balance was still in his hands. If that is the case, he is still liable notwithstanding the settlement and release.\\nHaving disposed of these questions, I will now proceed to consider the grounds taken on the part of the complainant.\\n1. That the commissioner ought to have been directed to charge the estate with the maintenance of the children, before he deducted the widow's distributive share.\\n*It is evident that this objection to the decree has originated in confounding the administration of the widow with her interest in the estate. The rights of the distributees are controlled and limited by the state of things that existed at the death of the ancestor: and if the administration in this case had been granted to a stranger, it never would have occurred to any one, that the distributive share of the widow was to be withheld until the children had been maintained and educated; for the grant of the administration to her could not impair her rights. This objection was therefore properly overruled.\\n2. That the commissioner ought to have been directed to set apart the income of the estate for the maintenance of the children, and allow nothing beyond it.\\nIn the case of M'Dowell and others v. The Administrators of Caldwell, decided at the sittings in January last, the views of the court on this question are fully expressed, ante, 43.\\nA prudent man would always proportion his expenditures in such a manner as to bring them within his income; and the law imposes the same obligation on him to whom it confides the management of the affairs of others. Cases may and frequently do occur, in which prudent men are from necessity compelled to depart from this rule; but they are out of the ordinary course of events : and before the court will permit a guardian, trustee, executor or administrator to break in upon the capital for subsistence, it will require them to show clearly and distinctly its necessity. In cases of u rgent necessity, the court would not hold from the administrator the power of exercising a discretion over the subject; but generally it claims the right to be consulted as to the expediency before the act is done, when application can be made without defeating the object. In this case, as in that of M'Dowell v. Caldwell, no account had been *kept, and no vouchers were produced to show the amount of disbursements on account of maintenance : and the defendants go into a conjectural estimate of what might have been the probable amount; and in the result it appears, that they have not only swallowed up the income, but a large portion of the capital. This is inadmissible, and in this respect, the decree must be reformed.\\n3. That the commissioner should have been directed not to allow interest on the allowance for maintenance.\\nReferring to the case of Wright v. Wright, decided during the present term, ante, 185, for the general rule as to the mode of calculating interest, it will be sufficient to remark, in reference to this case, that the mode of calculating interest is to deduct the credits at the time the payments or disbursements were made from the sum in hand, whether it consist of principal, interest or income; and the remainder constitutes the balance due. See the case of Black v. Blakely, ante, page 1.\\n4. That the commissioner should have been directed to deduct from the funds in the complainant's hands a counsel's fee of one hundred dollars, for the case of Teague v. Dunlap, and the present case.\\nIt is not seen, how the defendants are interested in that question. When the complainant is called on to account for his own administration, it will be time enough to enquire into the merits of this claim.\\n5. That the commissioner should have been directed to charge interest on the whole amount of funds in the hands of the adminis-tratrix, and not on the annual balances only.\\nAnd here again I must refer to the case of Wright v. Wright, for the rule. If the current expenditures of the year exceeded the income, the balance of course must be deducted from the principal, and interest on the remainder could only be charged to the defendant. And if on the contrary the income exceeded the expenditure, *the excess became principal, on which the defendant was chargeable with interest.\\nThe sixth and last ground of objection is, that the commissioner should have been directed to disallow the charges for extra expenses in settling with the bank, and the charge for the maintenance of old Bob.\\nWith respect to the extra expenses of settling with the bank, it may be observed, that the undertaking of the administratrix was to discharge all the duties that devolved on her in that character; and if these expenses were incurred in the ordinary course of administration, the compensation allowed by law was intended to cover it. It is, for instance, the duty of an administrator to keep and render a just account of his administration ; and if he is incompetent or too indolent to do so, and thinks proper to keep a clerk or employ an accountant for that purpose, he must do it at his own expense.\\nThere is, it is true, a distinction between those services for which a compensation is allowed by the statute, and the expenses incurred in the course of the administration. The former referred to those duties which an administrator is supposed to undertake; and the latter to such as require the aid of professional skill, to which he is not supposed to be competent. The conduct and management of a law suit is an illustration of the latter.\\nIt does not appear, however, that the settlement with the bank in volved any difficulty or required the aid of counsel. That charge was therefore improperly allowed.\\nThe defendants' third exception relates to the support of an useless old slave named Bob. The commissioner allowed the administrator for his support. The chancellor says, \\\"in his opinion most justly. To refuse it would be to compel executors and administrators to be gross inhumanity. The estate was bound to ^support an old worn out slave. The administrator did his duty and he must be allowed the charge.\\\" This court concurs with the chancellor.\\nThe case is ordered back to the commissioner to settle an account between the parties conformably to this opinion.\\nCase sent back to the commissioner.\\nLogan v. Logan, 1 M'Cord's Cha. R.ep. 1.\"}"

sc/12168366.json

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+"{\"id\": \"12168366\", \"name\": \"Charles Lavasseur, v. P. Ligniez\", \"name_abbreviation\": \"Lavasseur v. Ligniez\", \"decision_date\": \"1847-02\", \"docket_number\": \"\", \"first_page\": \"326\", \"last_page\": \"329\", \"citations\": \"1 Strob. 326\", \"volume\": \"32\", \"reporter\": \"South Carolina Law Reports\", \"court\": \"South Carolina Court of Appeals\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T20:54:05.377344+00:00\", \"provenance\": \"CAP\", \"judges\": \"Evans J., Waedlaw J., Feost J., and Withers J. concurred.\", \"parties\": \"Charles Lavasseur, v. P. Ligniez.\", \"head_matter\": \"Charles Lavasseur, v. P. Ligniez.\\nWhere both parties are \\u201cbeyond seas\\u201d at the making of the contract, and the defendant comes within the State, leaving the plaintiff \\u201cbeyond seas,\\u201d the plaintiff has five years, within which to bring his action, computing from the time at which the defendant came into the State.\\nTried before Mr. Justice Butler, at Charleston, May Term, 1846.\\nThis was an action of assumpsit against the maker of several promissory notes. At the time of their execution, both the parties lived in Paris, and the plaintiff, the payee, still lives there, never having lived in this State. About the time that these notes fell due, to wit, in July, 1839, the defendant left France, and arrived in Charleston on the 12th of September, 1839. This action was commenced on the 18th September, 1844. Upon this statement of facts, verified by the verdict of the jury, the defendant contended, under his plea, that the action was barred by our limitation act. The plaintiff\\u2019s counsel, under his replication, contended, that as the defendant was abroad when the cause of action accrued, the case was taken from under the operation of the act of limitations of 1712, and came under the provisions of 4th Ann. His Honor, the presiding Judge, ruled, that the defendant was entitled to the provisions of the Act of 1712, and that plaintiff\\u2019s action has been barred, more than five years having elapsed since the time the defendant settled in this city.\\nFrom this judgment the plaintiff appealed, and moved for a new trial, on the ground, that his Honor ruled that the act of limitations of 1712 applied to this case: whereas, it is submitted, that the facts bring it under the operation of the statute of 4th Ann, section 19, which, cannot bar the plaintiff.\\nT. P. Magratii, for the motion,\\ncontended that the judgment of the Circuit Court was erroneous, for the following reasons:\\n1. Because, where the defendant is abroad when the cause of action accrues, he cannot plead the statute of limitation. Statute 4th Anne, sec. 19; 2 Stat, 436; Smith v. Mitchell, Rice. 316. This statute extends as well to those who were foreigners at the lime of the accrual of the cause of action, and have come subsequently into the State, as to those who have only gone abroad temporarily. Ruggles a. Keeler, 3 Johns., 267; Fowler v. Hunt, 10 Johns., 464; Angel\\u00ed on Limitations, 223.\\n2. Because the statute of limitation of 1712, cannot apply to this case either by itself or by construction with the statute of 4th Anne. Not by itself, because it is governed particularly by the latter statute; and if the former act should apply, the latter is not of force, but being of force in this particular class of cases, and speci al provision being made therein, the former act, which is general, is inoperative; not by construction with the statute of 4th Anne, because they are inconsistent, repugnant, and cannot be construed together.\\n3. Because the time mentioned in the 4th section of the statute of 21 James^ wherein suits are tobe brought, is incorporated in the 19th section of the statute of 4th Anne, by express reference, and is to be taken as part of the said statute, according to the construction of references in statutes; Viner, 523, And also by analogy to the cons ruction of references in deeds, &c.; Izard \\u00be. Middleton; 1 N. & M\\u2019C., 381; statute 21 James 1; 2 Brev. Dig., 19.\\n4. Because the 2d section of A. A. of 1712, makes of force in this State the 4th section of the statute of 21 James; A. A. 1712; 2d section; 2 Statutes, 413.\\n5. Because, as the statute of 4th Anne is only operative against resident plaintiffs, it cannot run against a foreigner who has never been in the State; Angel\\u00ed on Limitation, 216-18-19.\\nH. P. Walker, contra.\\nThe question which presents itself is, whether in this State there is any limitation to suits against parties who were abroad when the cause of action accrued? In England, the statute of 21 James 1, (A. D. 1623,) enacts, that six years should be the term of limitation; but lest creditors should lose their just demands by the departure of debtors frem the country before the accrual of the cause of action\\u2014as in the instance of a note at a long date, before its maturity; and fail to return within the limited time\\u2014the Act of 4 Anne, c. 16, (A. D. 1705) was passed, which gave creditors the same time after their debtors return, which they would have had if such debtors had not absented themselves. The statute of James is not of force in this State, but the statute of limitations of this State, which, in the case of Smith v. Mitchell, (Rice 316) is declared to have been \\u201ccopied from and substituted\\u201d for the statute of James, limits the term to four years; and on the same day that the statute of limitations of this State was passed (12th December, 1712,) another Act was also passed, which made of force inter alia, the section already referred to, of 4 Anne, c. 16. It is obvious that the object of that Legislature was precisely the same as the object of the Parliament which originally made it a law, i. e., that when the debtor is beyond the seas, at the time the cause of action accrues, the creditor shall have the same time after his return, which he would have been entitled to, if his debtor had not been absent; to ascertain the time allowed, the Act substituted for the21 James l,must be referred to; and in the substituted Act, it is found to be four years; but we also find in that Act a clause in favor of creditors who happen to be beyond the seas, at the time of the accrual of their cause of action, and as that clause may be considered applicable to this case, the plaintiff is not barred if he brought his action within five years after its accrual, and taking the first arrival of the defendant, in this State, as the time of such accrual, it appears by the verdict that ho failed to do so.\", \"word_count\": \"1581\", \"char_count\": \"8795\", \"text\": \"O'Neall J.\\ndelivered the opinion of the Court.\\nThe decision in Smith v. Mitchell, Rice's Rep., 316, decided, that where the defendant, before the cause of action accrued, went beyond the State, the statute of limitations did not begin to run until his return under the 19th section of 4th Anne, c. 16. This case claims that where both parties are beyond seas at the making of the contract, and the defendant comes within the State, leaving the plaintiff beyond seas, that in that case the plaintiff is either without limitation, or has six years.\\nI am satisfied that the ruling of the Judge below is right. The statute of Anne was made of force, and the Act of 1712 was passed the same day. Where not inconsistent, it has been held that both may operate. It is true that the statute of Anne gives to a plaintiff, having a cause of action accrued against a person while he is out of the State, (or beyond seas, as the statute expresses it,) the period, limited by the statute of James, six years within which to bring his action after the party shall return to the State; but the Act of 1712 was intended to abridge the time given by the statute of James, and instead of six years, gave only four years. This would necessarily enter into the construction of the statute of Anne, and instead of allowing the period of' the statute of James, which was adopted by it as the then existing period o\\u00ed limitation, would take in its place that settled by the Act of 1712. The principle of \\\".Leges posteriores priores abroga,nl,\\\" would lead to this result. For although the statute of Anne was made of force the same day the statute of 1712 was passed, yet all inconsistent provisions of the letter must be regarded, as they are in fact later expressions of the legislative will. The 10 sec. of the Act of 1712, P. L. 102, 2 Statute at Large, 588, must govern this case; it provides, \\\"that if any person or persons is or shall be entitled to any' such action of trespass, detinue, action in trover, replevin, actions of account, debt, covenant, actions of assault, menace, battery, wounding, or imprisonment, actions upon the case for words, and at the time of any such cause of action given or accrued, shall be beyond seas, feme covert, or imprisoned, shall be at liberty to bring their action within five years after such cause of actions given or accrued.\\\" It is singular, that in this clause the action upon the case generally comprehending the action of assumpsit, should be omitted; and it is therefore possible that a plaintiff beyond seas, in such action, may, whenever it be necessary to look to that, find it difficult to claim more than four years. I, however, here give the plaintiff the benefit of five years, and allowed him to compute that time from the time at which the defendant came into this State. Doing so, it is plain that he is barred.\\nThe motion is dismissed.\\nEvans J., Waedlaw J., Feost J., and Withers J. concurred.\"}"

sc/12169290.json

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+"{\"id\": \"12169290\", \"name\": \"Joseph Pearson vs. James B. Davis\", \"name_abbreviation\": \"Pearson v. Davis\", \"decision_date\": \"1840-12\", \"docket_number\": \"\", \"first_page\": \"24\", \"last_page\": \"25\", \"citations\": \"1 McMul. 37\", \"volume\": \"26\", \"reporter\": \"South Carolina Law Reports\", \"court\": \"South Carolina Court of Appeals\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T22:24:17.419872+00:00\", \"provenance\": \"CAP\", \"judges\": \"the whole court concurring.\", \"parties\": \"Joseph Pearson vs. James B. Davis.\", \"head_matter\": \"Joseph Pearson vs. James B. Davis.\\nIn caso of eviction, by title paramount, the measure of damages is the price paid for the land, with interest.\\nConsequential damages cannot be recovered for any inconvenience or loss which the vendee may sustain in his improvements, however expensive or permanent. (The case of Henning, Executor, v. Withers, (3 Brev. Rep. 458,) considered and confirmed.)\\nSee 1 Bay. 18, 92, 265. 3 Bus. 2 Tread. 584. 1 McC. 384, 466. 2 McC. 413. Chir. 128. An.\\nBefore Earle, J., at Fairfield, Fall Term, 1840.\\nAssumpsit on a note of hand, given for the purchase money of a tract of land, conveyed by the plaintiff to the defendant.\\nThe defendant, by suit at law, had been evicted, by title paramount, of twelve acres, lying about the middle of the tract, and running in a narrow slip, nearly through it; the defendant, by way of discount claimed an abatement, not only for the actual value of the land thus recovered from him, in proportion to the price given for the whole, but additional damages for the injury and inconvenience which the person in possession must suffer.\\nI overruled this latter claim, and instructed the jury to allow an abatement pro tanto, for the actual value of the land, who found accordingly.\\n*CROUNDS OP APPEAL.\\n1. That the presiding Judge erred in charging the jury, that they could not allow the defendant any discount beyond the value of the deficient land.\\n2. Because the verdict was contrary to law and evidence.\", \"word_count\": \"827\", \"char_count\": \"4685\", \"text\": \"Curia, per\\nEarle, J.\\nThe Act of 1824, provides that incases, \\\" the true measure of damages shall be the amount of purchase money, at the time of alienation, with legal interest.\\\" Such has been the settled rule at law, since the case Furman vs. Elmore, The defendant, under his discount, has under that rule, been allowed damages, proportioned to the actual value of the land recovered from him. Independently of the Act, and the previous settled rule, it would be difficult to sustain, on any principle, or by any argument, the proposition, that damages could be recovered for the inconvenience complained of, as resulting from the loss, in addition to the value of the land. The standard of damages should not only be uniform, but such as to enable it to be applied to every case of eviction, by title paramount. There is no reason why the rule for assessing damages, where the land recovered lies in one part of the tract conveyed, should be different from what it would be if the land lay in another place. Indeed, it is a conclusive answer to the proposition, to say, that there can be no standard, or rule, for assessing damages, for the inconvenience here complained of. They are altogether speculative and uncertain. If it should suit the interest of the vendee to sell the remainder of the tract in two parcels, then there is no damage at all. If he cultivates on one side only, the inconvenience is trifling ; if on both sides, it is greater. If a person were to purchase a tract of land adjoining one whereon he resided, and should be evicted from a portion of his purchase, nearest his residence, he too might claim additional consequential damages, to a greater amount than if the loss accrued on the side of the tract most remote ; and in every case, the assessment would depend on the accidental circumstances of residence and cultivation. It is well settled, that a vendee cannot recover for actual improvements, however expensive or permanent; and for a much stronger reason, he should not be allowed to recover for a mere inconvenience, arising from a change in the shape of his tract, or the Relative position of his fields. This question was settled in the case of Henning vs. Withers, (3 Brev. Rep. 458) which was very well considered. The defendant purchased a tract of land, with a stream of water running through it, on which, but lower down, and without the boundaries of the tract, he built a saw mill. He was evicted by title paramount, of a narrow strip of the land, on the side nearest the mill, and extending across the stream ; in consequence of which, he was obliged to lessen the height of his dam, and of course the quantity of water in his pond ; whereby the profits of his saw mill were greatly diminished. Being- sued on the bond for the purchase money, he claimed by way of discount, not only an abatement for the actual value of land, but for the consequential damage, resulting from the loss, in its effect upon the profits of the mill. But it was held, the whole Court concurring, that he was entitled only to an abatement for the value of the land.\\nWoodward, for the motion. Fair, contra,\\nThe motion is refused :\\nthe whole court concurring.\\n4 Stat. 238. An.\\n2 N. & McC. 189. An.\"}"

sc/12278678.json

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+"{\"id\": \"12278678\", \"name\": \"The STATE, Appellant, v. Steven Hoss WALTERS, Jr., Respondent\", \"name_abbreviation\": \"State v. Walters\", \"decision_date\": \"2016-09-28\", \"docket_number\": \"Appellate Case No. 2014-002770; Opinion No. 5443\", \"first_page\": \"303\", \"last_page\": \"307\", \"citations\": \"418 S.C. 303\", \"volume\": \"418\", \"reporter\": \"South Carolina Reports\", \"court\": \"South Carolina Court of Appeals\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T23:02:10.709598+00:00\", \"provenance\": \"CAP\", \"judges\": \"KONDUROS and MCDONALD, JJ., concur.\", \"parties\": \"The STATE, Appellant, v. Steven Hoss WALTERS, Jr., Respondent.\", \"head_matter\": \"The STATE, Appellant, v. Steven Hoss WALTERS, Jr., Respondent.\\nAppellate Case No. 2014-002770\\nOpinion No. 5443\\nCourt of Appeals of South Carolina.\\nHeard September 8, 2016\\nFiled September 28, 2016\\nRehearing Denied November 17, 2016\\nAttorney General Alan McCrory Wilson and Assistant Attorney General William M. Blitch, Jr., both of Columbia; and Solicitor Kevin Scott Brackett, of York, for Appellant.\\nJames W. Boyd, of James W. Boyd, Attorney, of Rock Hill, for Respondent.\", \"word_count\": \"1280\", \"char_count\": \"7770\", \"text\": \"LOCKEMY, C.J.:\\nThe State appeals the circuit court's dismissal of its case against Steven Hoss Walters, Jr. for driving under the influence (DUI), second offense. The State argues the circuit court erred in finding (1) the video recording of the incident site failed to comply with the requirements of section 56-5-2953(A) of the South Carolina Code (Supp. 2015) and (2) section 56\\u20145\\u2014 2953(B) of the South Carolina Code (Supp. 2015) was not applicable. We reverse and remand.\\nFACTS/PROCEDURAL BACKGROUND\\nOn July 13, 2014, Walters was arrested for DUI in York County. On that date, Trooper Mike McAdams, the arresting officer, administered a horizontal gaze nystagmus (HGN) test. While his dashboard camera was recording, Trooper Mc-Adams positioned Walters in front of his patrol car facing away from the camera and conducted the test. According to Trooper McAdams, Walters was turned away from the patrol car to prevent the flashing lights from causing a false positive on the HGN test.\\nOn December 16, 2014, this case proceeded to trial in the circuit court. During a pretrial hearing, the circuit court dismissed the case, finding the video recording did not comply with section 56-5-2953(A) of the South Carolina Code (Supp. 2015) because it did not fully show the administration of the HGN test. The court found because Walters was facing away from the camera, it could not determine whether Trooper McAdams and Walters were in the proper position or whether Trooper McAdams was moving his finger at the proper pace. The circuit court further held section 56-5-2953(B) of the South Carolina Code (Supp. 2015) did not apply because the video recording was not missing or malfunctioning. This appeal followed.\\nSTANDARD OF REVIEW\\n\\\"In criminal cases, the appellate court sits to review errors of law only.\\\" State v. Baccus, 367 S.C. 41, 48, 625 S.E.2d 216, 220 (2006). Therefore, this court is bound by the trial court's factual findings unless the appellant can demonstrate that the trial court's conclusions either lack evidentiary support or are controlled by an error of law. State v. Laney, 367 S.C. 639, 643-44, 627 S.E.2d 726, 729 (2006).\\nLAW/ANALYSIS\\nI. Section 56-5-2953(A)\\nThe State argues the circuit court erred in dismissing its case against Walters because the video recording did not comply with section 56-5-2953(A) of the South Carolina Code. We agree.\\nPursuant to section 56-5-2953,\\n(A) A person who violates Section 56-5-2930, 56-5-2933, or 56-5-2945 must have his conduct at the incident site and the breath test site video recorded.\\n(l)(a) The video recording at the incident site must:\\n(i) not begin later than the activation of the officer's blue lights;\\n(ii) include any field sobriety tests administered; and\\n(iii) include the arrest of a person for a violation of Section 56-5-2930 or Section 56-5-2933, or a probable cause determination in that the person violated Section 56-5-2945, and show the person being advised of his Miranda rights.\\nS.C. Code Ann. \\u00a7 56-5-2953(A) (Supp. 2015).\\nThe State asserts the video recording in this case complied with the statute because it began before Walters was stopped and continued uninterrupted during the administration of the field sobriety tests, the reading of Miranda, and Walters' arrest. The State contends the statute does not require every aspect of the HGN test be seen in order to judge a person's performance or the officer's administration of the test. The State maintains the plain language of the statute does not require the officer's hand to be visible at all times during the administration of the HGN test, nor does it require the video to provide the viewer -with the ability to assess the defendant's success or failure. The State argues as long as the recording includes \\\"any field sobriety tests administered,\\\" it is in compliance with the plain, unambiguous language of the statute.\\nWalters contends he and Trooper McAdams were positioned in such a manner during the HGN test that it could not be determined whether the test was properly administered. Walters notes that prior to 2009, section 56-5-2953(A) only required the defendant's conduct be recorded at the incident site. See S.C. Code Ann \\u00a7 56-5-2958(A) (2006). In 2009, the legislature amended the statute, expressly requiring the recording of field sobriety tests. See S.C. Code Ann. \\u00a7 56-5-2953(A)(1)(a)(ii) (Supp. 2015). Walters asserts that had the legislature intended there only be a recording of field sobriety tests, without the ability to determine the defendant's performance on the tests, there would have been no need to amend the statute.\\nRecently, in State v. Gordon, 414 S.C. 94, 777 S.E.2d 376 (2015), our supreme court addressed HGN tests and the recording requirements found in section 56-5-2953(A). The Gordon court affirmed this court's holding section 56-5-2953(A) requires a motorist's head be recorded during an HGN test. 414 S.C. at 96, 777 S.E.2d at 377. The supreme court held section 56-5-2953(A) is clear and unambiguous and its provision that video recordings must include any field sobriety test administered, necessarily includes the HGN test. 414 S.C. at 99, 777 S.E.2d at 378. The court noted because the HGN test focuses on eye movement, \\\"common sense dictates that the head must be visible on the video.\\\" Id. Despite Gordon's assertion he was out of sight and in the dark during the HGN test, the court found the requirement the head be visible on the video was met and the statutory requirement that the administration of the HGN field sobriety test be video recorded was satisfied. Id. at 99-100, 777 S.E.2d at 379. The court noted the officer's administration of the HGN test was visible on the video recording; Gordon's face was depicted in the video (\\\"it is axiomatic that the face is a part of the head\\\"); the officer's flashlight and arm were visible during the administration of the test; and the officer's instructions were audible. Id.\\nWe find the video recording at issue in the present case properly included the recording of any field sobriety tests administered as required by section 56-5-2953(A). Walters's head is visible during the entire recording of the HGN test. In addition, Trooper McAdams's arm is visible as he administers the test, and his instructions are audible. While Trooper McAdams's finger disappears at times during the test as his hand moves in front of Walters's face, the statute does not require video recordings of the HGN test include views of all angles of the test. Such a requirement would be unreasonable given the limitations of dashboard cameras. Accordingly, we reverse the circuit court's dismissal of the case.\\nII. Section 56-5-2953(B)\\nThe State argues the circuit court erred in finding section 56-5-2953(B) of the South Carolina Code was not applicable. In light of our decision to reverse the circuit court as to the first issue on appeal, we need not address this issue. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (holding an appellate court need not address remaining issues when disposition of a prior issue is dispositive).\\nCONCLUSION\\nThe circuit court's decision is\\nREVERSED AND REMANDED.\\nKONDUROS and MCDONALD, JJ., concur.\\n. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).\"}"

sc/12278887.json

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+"{\"id\": \"12278887\", \"name\": \"In the MATTER OF Bennett Joseph SCHILLER, III, Respondent\", \"name_abbreviation\": \"In re Schiller\", \"decision_date\": \"2017-11-22\", \"docket_number\": \"Appellate Case No. 2017-001645; Opinion No. 27753\", \"first_page\": \"404\", \"last_page\": \"409\", \"citations\": \"421 S.C. 404\", \"volume\": \"421\", \"reporter\": \"South Carolina Reports\", \"court\": \"Supreme Court of South Carolina\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T22:27:42.381252+00:00\", \"provenance\": \"CAP\", \"judges\": \"BEATTY, C.J., KITTREDGE, HEARN, FEW and JAMES, JJ., concur.\", \"parties\": \"In the MATTER OF Bennett Joseph SCHILLER, III, Respondent.\", \"head_matter\": \"808 S.E.2d 378\\nIn the MATTER OF Bennett Joseph SCHILLER, III, Respondent.\\nAppellate Case No. 2017-001645\\nOpinion No. 27753\\nSupreme Court of South Carolina.\\nSubmitted October 24, 2017\\nFiled November 22, 2017\\nLesley M. Coggiola, Disciplinary Counsel, and Julie K. Martino, Assistant Disciplinary Counsel, both of Columbia, for Office of Disciplinary Counsel.\\nThomas A. Pendarvis, of Pendarvis Law Offices, PC, of Beaufort, for Respondent.\", \"word_count\": \"1343\", \"char_count\": \"8610\", \"text\": \"PER CURIAM:\\nIn this attorney disciplinary matter, respondent and the Office of Disciplinary Counsel have entered into an Agreement for Discipline by Consent (Agreement) pursuant to Rule 21 of the Rules for Lawyer Disciplinary Enforcement (RLDE) contained in Rule 413 of the South Carolina Appellate Court Rules (SCACR). In the Agreement, respondent admits misconduct and consents to a public reprimand. We accept the Agreement and issue a public reprimand. The facts, as set forth in the Agreement, are as follows.\\nFacts\\nCo-counsel was retained by Client, a North Carolina resident, to represent him with regards to a motor vehicle accident that occurred in North Carolina. Co-counsel subsequently associated respondent on the case. Neither co-counsel nor respondent was admitted to practice law in North Carolina.\\nClient signed two fee agreements. The first agreement was a fee agreement stating the attorneys' fee was 33% of any recovery and that if there was no recovery, Client would be responsible for \\\"all actual expenses.\\\" The agreement did not specify whether the attorneys' fee would be calculated before or after litigation and other expenses were deducted. Although respondent asserted he and his co-counsel explained to Client how funds would be distributed under the agreement, respondent admits that the failure to document in writing whether litigation and other expenses are to be deducted before or after a contingent fee is calculated is a violation of Rule 1.5(c) of the North Carolina Revised Rules of Professional Conduct.\\nAfter recovering the policy limit of $30,000 from the at-fault driver's insurance carrier, respondent and co-counsel pursued recovery under Client's underinsured motorist (UIM) policy. That carrier tendered $220,000 to respondent and co-counsel, which represented the policy limit of $250,000 minus a set-off of $30,000 based on the payment by the at-fault driver's carrier.\\nClient refused to accept the funds due to a disagreement over the disbursement statement, specifically, the disbursement of attorneys' fees. Client informed respondent and co-counsel he was terminating the \\\"fee contract,\\\" as he believed the fees were unreasonable and he did not understand there were other fee agreement options. Client also stated he did not understand from the fee agreement that respondent and co-counsel could place a lien on the insurance proceeds for the amount of the attorneys' fees owed.\\nThereafter, respondent sent letters to Client's UIM carrier informing the carrier that he and co-counsel had a lien on the $220,000 for their one-third contingency fee. In one of the letters, respondent directed the carrier not to discuss the matter with Client or Client's brother without the consent of respondent or co-counsel.\\nSubsequently, Client left a voice message with the carrier notifying the carrier that he had terminated respondent and co-counsel. Client also sent a letter to respondent and co-counsel asking them to notify the carrier that they were no longer representing Client.\\nThe carrier sent a letter to respondent informing him Client had notified the carrier that he had discharged respondent and co-counsel. The carrier requested respondent contact Client about the outstanding claim. Three weeks later, and over a month after Client requested such action, respondent and co-counsel notified the carrier they were no longer representing Client and returned the insurance proceeds to the carrier.\\nClient alleged respondent and co-counsel failed to withdraw as counsel after he terminated the fee agreement and that they failed to inform the UIM carrier they were no longer representing Client after he requested they do so. Respondent admits his failure to withdraw from representation after multiple communications from Client requesting respondent and co-counsel cease representation violated Rule 1.16(a)(3) of the North Carolina Revised Rules of Professional Conduct.\\nFinally, Client alleged respondent and co-counsel forged Client's signature on a document entitled \\\"Settlement Agreement and Covenant Not to Enforce Judgment-North Carolina.\\\" Client stated he had never seen the document but it had a signature purporting to be his that was witnessed by respondent and notarized by respondent's paralegal.\\nRespondent and co-counsel explained they discussed with Client the possibility of pursuing the at-fault driver's personal assets but Client understood the only way to secure payment more quickly was to accept the limits of the driver's insurance policy by way of a covenant not to execute and accept the limits of the UIM coverage on a policy release. Respondent and co-counsel stated Client understood the difficulty of recovering from the driver's personal assets and therefore agreed to accept the insurance limits. Respondent and co-counsel stated they explained the settlement agreement and disbursement from the driver's carrier to Client and asked him to come to the office and sign the covenant not to execute and the check issued by the carrier. According to respondent and co-counsel, Client directed them to sign the items for him and send him the check. Respondent signed the covenant not to execute, witnessed it himself, and had his paralegal notarize it. The document stated the person signing was affirming he had carefully read the document, understood its contents, and was signing it as his own free act. The cover letter respondent sent to Client along with the check did not reference the covenant not to execute or indicate a copy was enclosed.\\nRespondent admits the covenant not to execute was falsely witnessed and notarized and that he did not provide a copy to Client. Respondent states the document was not relied on by the at-fault driver's insurance carrier because Client refused to sign the settlement agreement.\\nRespondent admits his actions with regard to the covenant not to execute were improper and in violation of the following North Carolina Revised Rules of Professional Conduct: Rule 4.1 (a lawyer shall not knowingly make a false statement of material fact or law to a third person); Rule 5.3(b) (a lawyer with supervisory authority over a nonlawyer shall make efforts to ensure the nonlawyer's conduct is compatible with the professional obligations of the lawyer); Rule 5.3(c)(1) (a lawyer is responsible for the conduct of a nonlawyer who commits a violation of the Rules of Professional Conduct when the lawyer orders or ratifies such conduct); and Rule 8.4(d) (it is professional misconduct to engage in conduct that is prejudicial to the administration of justice).\\nLaw\\nRespondent admits that by his conduct he has violated the above provisions of the North Carolina Revised Rules of Professional Conduct. He also admits the violations constitute grounds for discipline under Rule 7(a)(2) of the South Carolina Rules for Lawyer Disciplinary Enforcement, Rule 413, SCACR.\\nConclusion\\nWe find respondent's misconduct warrants a public reprimand. Accordingly, we accept the Agreement and publicly reprimand respondent for his misconduct. In addition, as set forth in the Agreement, respondent shall (1) complete the Legal Ethics and Practice Program Ethics School and a notary public class within one year of being disciplined; (2) require all notary publics in his office to attend a notary public class within the same time period, to maintain records of attendance, and to sign a statement that they have read and will abide by the South Carolina Notary Public Reference Manual; and (3) pay the costs incurred in the investigation of this matter by ODC and the Commission on Lawyer Conduct within thirty days of the date of this opinion.\\nPUBLIC REPRIMAND.\\nBEATTY, C.J., KITTREDGE, HEARN, FEW and JAMES, JJ., concur.\\n. Pursuant to Rule 8.5(b)(2) of the South Carolina Rules of Professional Conduct, Rule 407, SCACR, because the predominant effect of the conduct at issue was in North Carolina, the North Carolina Revised Rules of Professional Conduct apply.\\n. Respondent provided documents to support his position that Client gave him permission to sign Client's name, but the documents are not contemporaneous with the signing and notarizing of the documents.\"}"

sc/1246035.json

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+"{\"id\": \"1246035\", \"name\": \"In the Matter of the CARE AND TREATMENT OF John Phillip CORLEY, Appellant\", \"name_abbreviation\": \"In re the Care & Treatment of Corley\", \"decision_date\": \"2005-07-05\", \"docket_number\": \"No. 4009\", \"first_page\": \"252\", \"last_page\": \"258\", \"citations\": \"365 S.C. 252\", \"volume\": \"365\", \"reporter\": \"South Carolina Reports\", \"court\": \"South Carolina Court of Appeals\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-11T00:49:04.223117+00:00\", \"provenance\": \"CAP\", \"judges\": \"GOOLSBY, and HUFF, JJ., concur.\", \"parties\": \"In the Matter of the CARE AND TREATMENT OF John Phillip CORLEY, Appellant.\", \"head_matter\": \"616 S.E.2d 441\\nIn the Matter of the CARE AND TREATMENT OF John Phillip CORLEY, Appellant.\\nNo. 4009.\\nCouit of Appeals of South Carolina.\\nSubmitted June 1, 2005.\\nDecided July 5, 2005.\\nSonja R. Tate, and Michael N. Loebl, of Augusta, Georgia, for Appellant.\\nAttorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Attorney General R. Westmoreland Clarkson, Assistant Attorney General Deborah R.J. Shupe, Office of the Attorney General, of Columbia, for Respondent.\", \"word_count\": \"1713\", \"char_count\": \"10566\", \"text\": \"KITTREDGE, J.:\\nFollowing a determination, pursuant to the Sexually Violent Predator Act (the Act), that John Phillip Corley is a sexually violent predator, a probable cause hearing was held on the issue of whether the results of the statutory annual review warranted a trial to determine if Corley should be released from confinement. Corley appeals from the circuit court's finding that there was no probable cause to believe his mental abnormality or personality disorder had so changed that he was safe to be at large and that he was not likely to commit acts of sexual violence. We affirm.\\nFACTS\\nIn March 1993, a jury convicted Corley of assault and battery of a high and aggravated nature and he was sentenced to ten years. In August 1993, Corley pled guilty to criminal sexual conduct in the second degree and was sentenced to a concurrent term of fourteen years.\\nA jury subsequently found Corley to be a sexually violent predator and he was committed pursuant to the Act. The judgment was affirmed on appeal. In the Matter of the Care & Treatment of Corley, 353 S.C. 202, 577 S.E.2d 451 (2003). In May 2003, Corley petitioned the court for release from commitment pursuant to S.C.Code Ann. \\u00a7 44-48-110 (Supp. 2002).\\nThe circuit court held a probable cause hearing in September 2003 to determine whether the results of Corley's annual review warranted a trial on the issue of his fitness for release. Following the submission of written reports and arguments by counsel, the court found probable cause did not exist to believe Corley's mental abnormality or personality disorder had so changed that he was safe to be at large and unlikely to commit acts of sexual violence. Corley challenges the circuit court's finding of no probable cause.\\nLAW/ANALYSIS\\nI. Sufficiency of the Order\\nSection 44-48-110 of the South Carolina Code (Supp. 2002) \\u2014 which was applicable at the time of Corley's September 2003 hearing \\u2014 set forth the procedure for reviewing commitments under the Act. A person committed under the Act must have an annual examination of his mental conditions. Id. The court must conduct an annual hearing to review the committed person's status, and the committed person may petition the court for release at this hearing. Id. At the hearing, the circuit court uses a probable cause standard to determine whether sufficient evidence exists to go to trial:\\nIf the court determines that probable cause exists to believe that the person's mental abnormality or personality disorder has so changed that the person is safe to be at large and, if released, is not likely to commit acts of sexual violence, the court shall schedule a trial on the issue.\\nId.\\nIn this case, the circuit court conducted an annual review hearing and determined that probable cause did not exist to warrant a trial on Corely's request for release from confinement. The court considered the evidence and determined that the lack of the requisite probable cause precluded a further hearing or trial. The circuit court's conclusory order appears to be a form order submitted by the State. Corley maintains that the circuit court's order failed to make adequate findings of fact and conclusions of law to permit judicial review.\\nThe first question before us, which we answer in the affirmative, is whether the circuit court must make detailed findings in connection with a probable cause determination in an annual review under the Act. We find especially persuasive our supreme court's sound analysis in In the Matter of the Treatment and Care of Luckabaugh, 351 S.C. 122, 568 S.E.2d 338 (2002). The court held in Luckabaugh that the circuit court erred in failing to set forth its findings \\u2014 and violating Rule 52(a), SCRCP \\u2014 in an initial merits hearing under the Act. Luckabaugh recognizes the obvious \\u2014 meaningful appellate review is more readily obtained when we are presented with a clear presentation of the basis for the circuit court's findings:\\nTrial courts, sitting without juries in an action at law, write their findings specially and separately:\\nto allow a reviewing court to determine from the record whether the judgment \\u2014 and the legal conclusions which underlie it \\u2014 represent a correct application of the law. The requirement for appropriately detailed findings is thus not a mere formality or a rule of empty ritual; it is designed instead to dispose of the issues raised by the pleadings and to allow the appellate courts to perform their proper function in the judicial system.\\nId. at 132, 568 S.E.2d at 343 (internal citations omitted) (quoting Coble v. Coble, 300 N.C. 708, 268 S.E.2d 185, 189 (1980)).\\nThere are, to be sure, innumerable instances where the strictures of Rule 52(a) do not apply. Trial courts routinely make rulings in a variety of settings (preliminary to, and in the context of a, trial) without the need to issue a formal order containing specific findings of fact. \\\"We do not require a lower court to set out findings on all the myriad factual questions arising in a particular case.\\\" Luckabaugh, 351 S.C. at 133, 568 S.E.2d at 343. We are not presented here with a mere evidentiary ruling or some peripheral determination. An annual review hearing under the Act is in the nature of a trial. A finding of \\\"no probable cause\\\" is indeed dispositive of the proceeding and provides the finding from which an appeal is taken.\\nWe hold that, in making a probable cause determination in an annual review under the Act, the circuit court should substantially comply with Rule 52(a) and \\\"find the facts specially and state separately its conclusions of law.\\\"\\nWe do not find, however, that the deficient order requires reversal. Unlike the uncertainty that surrounded the circuit court's determination in Luckabaugh, a review of this record clearly documents a factual basis for concluding that probable cause was lacking. From the comments of and questions posed by the able circuit judge, we need not speculate as to the basis of his decision, for we clearly discern \\u2014 as discussed below \\u2014 the basis of his finding of no probable cause.\\nII. Probable Cause Finding\\nConcerning Corley's challenge to the circuit court's probable cause finding, such ruling will not be disturbed \\\"unless found to be without evidence that reasonably supports the hearing courts finding.\\\" In the Matter of the Care & Treatment of Tucker, 353 S.C. 466, 470, 578 S.E.2d 719, 721 (2003).\\nEvidence reasonably supports the circuit court's probable cause finding. Although Corley made progress, his behavior remained \\\"a big problem.\\\" He received at least five major disciplinary citations in the year prior to the review, some of which involved his \\\"manipulating to use the telephone\\\" to make sexually inappropriate calls. Corley had been involved in a sexual relationship with a staff member, and had threatened staff. Additionally, he had numerous unexcused absences from group sessions. Corley had not completed treatment. At the time of the hearing, he was on the lowest level in the Treatment Incentive Program due to his inappropriate behavior on the unit.\\nDr. Lanette Atkins testified Corley needs further treatment. Dr. Atkins further testified that based on Corley's history of assaultive behavior and continuing manipulative behavior, he continues to be a risk to the community.\\nIn response, Corley offered the testimony of Carl Harry Douglas, a counselor who treats sex offenders in an outpatient setting. Douglas testified Corley would need to continue in outpatient treatment if he were released. However, the Act contains no provision for court-ordered outpatient treatment.\\nWe find ample support to sustain the circuit court's finding of no probable cause.\\nIII. Constitutional Challenge to the Act\\nCorley further requests a ruling that the Act is invalid on due process grounds. This argument has not been preserved for appeal.\\nConstitutional issues, like most others, must be raised to and ruled on by the trial court to be preserved for appeal. See State v. Varuil, 338 S.C. 335, 339, 526 S.E.2d 248, 250 (Ct.App.2000). The record contains no indication that Corley ever raised a due process argument in the circuit court. This argument is not preserved for review.\\nCONCLUSION\\nWe find that the circuit court's probable cause determination is supported by the evidence.\\nAFFIRMED.\\nGOOLSBY, and HUFF, JJ., concur.\\n. The Act was amended in 2004. \\\"The 2004 amendment substituted 'must' for 'shall' throughout and added [a] sentence relating to notification of the victim.\\\" See Effect of Amendment, S.C.Code Ann. \\u00a7 48-44-110 (Supp.2004). This appeal is unaffected by the 2004 amendment.\\n. Rule 52(a) provides as follows: \\\"In all actions tried upon the facts without a jury ., the court shall find the facts specially and state separately its conclusions of law thereon, and judgment shall be entered pursuant to Rule 58 (providing for entry of judgment)....\\\" Rule 52(a), SCRCP.\\n. In the family court context, Rule 26(a), SCFCR, provides a counterpart to Rule 52(a), SCRCP. When considering family court orders deemed conclusoiy, and thus incapable of proper judicial review, this court noted in Atkinson v. Atkinson, 279 S.C. 454, 456, 309 S.E.2d 14, 15 (Ct.App.1983):\\nProper appellate review is extremely difficult, if not impossible, where a lower court order omits specific findings of fact to support its legal conclusions. We appreciate the problems which Family Court Judges may have from time to time in meeting the require ments of [Rule 26(a)], Unremitting workloads and arduous responsibilities hamstring even the most dedicated. Nonetheless, we believe that strict compliance with the rule promotes the administration of justice at every judicial level.\\nWe echo the sentiments of the court in Atkinson, and recognize that a trial courts specific findings of fact and conclusions of law are critical to meaningful appellate review. We do not intend to unnecessarily increase our trial courts substantial existing burdens, but instead our goal is to seek greater efficiency in the \\\"administration of justice\\\" by facilitating proper appellate review.\"}"

sc/1258951.json

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+"{\"id\": \"1258951\", \"name\": \"INMED DIAGNOSTIC SERVICES, L.L.C., Respondent-Appellant, v. MEDQUEST ASSOCIATES, INC., Palmetto Imaging, Inc., and Open MRI of Florence, Inc., Appellants-Respondents\", \"name_abbreviation\": \"InMed Diagnostic Services, L.L.C. v. MedQuest Associates, Inc.\", \"decision_date\": \"2004-03-22\", \"docket_number\": \"No. 3765\", \"first_page\": \"270\", \"last_page\": \"280\", \"citations\": \"358 S.C. 270\", \"volume\": \"358\", \"reporter\": \"South Carolina Reports\", \"court\": \"South Carolina Court of Appeals\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T23:19:37.227090+00:00\", \"provenance\": \"CAP\", \"judges\": \"STILWELL, J, and CURETON, A.J., concur.\", \"parties\": \"INMED DIAGNOSTIC SERVICES, L.L.C., Respondent-Appellant, v. MEDQUEST ASSOCIATES, INC., Palmetto Imaging, Inc., and Open MRI of Florence, Inc., Appellants-Respondents.\", \"head_matter\": \"594 S.E.2d 552\\nINMED DIAGNOSTIC SERVICES, L.L.C., Respondent-Appellant, v. MEDQUEST ASSOCIATES, INC., Palmetto Imaging, Inc., and Open MRI of Florence, Inc., Appellants-Respondents.\\nNo. 3765.\\nCourt of Appeals of South Carolina.\\nHeard Jan. 13, 2004.\\nDecided March 22, 2004.\\nRehearing Denied April 22, 2004.\\nCharles E. Carpenter, Jr., S. Elizabeth Brosnan, M. Elizabeth Crum and Robert W. Dibble, Jr., all of Columbia, for Appellant-Respondent.\\nHamilton Osborne, Jr. and James Y. Becker, of Columbia, for Respondent-Appellant.\", \"word_count\": \"2738\", \"char_count\": \"17497\", \"text\": \"GOOLSBY, J.:\\nThis appeal arises out of a dispute among competing providers of magnetic resonance imaging (\\\"MRI\\\") services. Med-Quest Associates, Inc., Palmetto Imaging, Inc., and Open MRI of Florence, Inc. (collectively \\\"MedQuest\\\") appeal a jury verdict in favor of InMed Diagnostic Services, L.L.C. (\\\"InMed\\\") under the Unfair Trade Practices Act (\\\"UTPA\\\"). InMed cross-appeals, arguing error in the award of attorney fees and the trial court's refusal to award treble damages. We reverse the jury verdict.\\nFACTS AND PROCEDURAL BACKGROUND\\nThe State Certification of Need and Health Facility Licensure Act (\\\"CON Act\\\") governs the acquisition and use of medical equipment such as MRI machines in South Carolina. Under the CON Act, a medical provider must obtain a certificate of need (\\\"CON\\\") from the South Carolina Department of Health and Environmental Control (\\\"DHEC\\\") before undertaking \\\"the acquisition of medical equipment which is to be used for diagnosis or treatment if the total project cost is in excess\\\" of $600,000. If the total project cost in a given situation falls below the $600,000 threshold, the provider may seek a determination from DHEC that the CON Act does not apply. A determination of this kind is known as a non-applicability determination (\\\"NAD\\\"). The application and review process to obtain a CON is more detailed and time-consuming than that to obtain a NAD.\\nDHEC regulations define \\\"total project cost\\\" as \\\"the estimated total capital cost of a project including land cost, construction, fixed and moveable equipment, architect's fee, financing cost, and other capital costs properly charged under generally accepted accounting principles] as a capital cost.\\\" Under generally accepted accounting principles, assets are recorded at historical or invoice cost when they are acquired.\\nMedQuest, formed in 1994, operates six facilities in South Carolina that provide outpatient diagnostic imaging services, including MRI services. In 1998, MedQuest began negotiating with Siemens, a supplier of MRI machines, for the purchase of new MRI machines. Siemens and MedQuest reached an agreement providing that, as MedQuest bought machines from Siemens, Siemens would give a major discount on every third purchase. MedQuest used two of these heavily discounted purchases for its facilities in Columbia and Florence, South Carolina, and applied to DHEC for a NAD for these acquisitions. DHEC approved MedQuest's applications in early 1999.\\nInMed, a competing provider of outpatient diagnostic imaging services, was formed in 1998, when its founder, Robert Adams, purchased the assets of Image Trust, an MRI provider in Florence and Columbia that had ceased operations. Adams subsequently purchased replacement MRI machines for both locations and obtained a NAD for the Florence acquisition.\\nBoth InMed and MedQuest challenged each other's NAD for their Florence locations. InMed asserted that MedQuest substantially understated the cost of its MRI equipment in its application to DHEC for a NAD. MedQuest asserted that InMed should have included a trade-in allowance for used equipment in the total cost of the project. The appeals went before the Administrative Law Judge Division (\\\"ALJD\\\"); however, they were subsequently dismissed by agreement between the parties.\\nSeveral months later, InMed commenced the present action by filing a complaint in the Richland County Circuit Court. In its amended complaint, InMed alleged that the individual defendants \\\"combined and conspired with each other to provide false and fictitious information to DHEC concerning MedQuest's MRI equipment costs for its facilities in Columbia and Florence.\\\" The complaint also alleged unfair trade practices, common law unfair competition, interference with prospective contractual relations, and civil conspiracy.\\nMedQuest answered InMed's complaint, alleging several affirmative defenses, including (1) that exclusive jurisdiction lay with the ALJD, (2) that InMed had failed to exhaust its administrative remedies, and (3) that InMed's cause of action under the UTPA should be dismissed because MedQuest's conduct was controlled by the CON Act and thus was not subject to liability under the Act.\\nIn a form order dated December 6, 2001, and again in a formal order dated February 20, 2002, the circuit court granted summary judgment as to all causes of action against Siemens. The circuit court also granted summary judgment in favor of MedQuest as to the civil conspiracy and interference with prospective contractual relations claims; however, summary judgment was denied as to the UTPA and common law unfair competition claims.\\nInMed's remaining two claims were then tried to a jury from December 10-13, 2001. During the course of the trial, InMed dropped the common law unfair competition claim, and only the UTPA claim went to the jury. The jury returned a verdict for InMed, awarding $2,107,898 in damages.\\nOn December 19, 2001, MedQuest moved for judgment notwithstanding the verdict, or in the alternative, for a new trial. The next day, InMed moved for treble damages and attorney fees. In a form order dated January 10, 2002, the circuit court denied both motions, noting further that attorney fees would be set following a hearing on the matter. On February 4 and 6, 2002, MedQuest and InMed, respectively, appealed the denial of their motions.\\nOn March 28, 2002, the circuit court heard InMed's motion for attorney fees. By form order dated May 2, 2002, the circuit court awarded InMed $100,000 in attorney fees. In-Med filed a motion to alter or amend this ruling, which was denied by form order on May 20, 2002. InMed appealed this ruling on May 29, 2002, and MedQuest likewise appealed the order awarding attorney fees.\\nOn appeal, MedQuest argues the UTPA is inapplicable to InMed's lawsuit because the purchase of medical equipment is specifically regulated by DHEC. MedQuest also argues that InMed's abandonment of its appeal before the ALJD barred it from seeking relief in the circuit court. Finally, MedQuest contends that, even assuming its actions were subject to the UTPA, there was no evidence of a UTPA violation.\\nIn its cross-appeal, InMed argues that the circuit court erred by refusing to award treble damages on its cause of action for unfair trade practices. InMed further asks that the attorney fees award of $100,000 be vacated and the matter remanded to the circuit court for appropriate findings as required by the controlling case law.\\nLAW/ANALYSIS\\nMedQuest first argues the UTPA is inapplicable to this case because medical equipment purchases are \\\"actions or transactions permitted under laws administered by any regulatory body or officer acting under statutory authority of this state . or actions or transactions permitted by any other South Carolina law,\\\" which are specifically excluded under section 39-5-40(a). We agree.\\nThe exemption provided in section 39-5-40(a) was first interpreted in State ex rel. McLeod v. Rhoades. In Rhoades, the supreme court reversed the overruling of a demurrer to a complaint of \\\" 'unfair and deceptive acts or practices' in connection with the public offering and sale\\\" of securities. Holding securities transactions fell within the exemption provided by section 39-5-40, the supreme court adopted what has come to be known as the \\\"general activity\\\" test and stated: \\\"Initially the burden is on the party seeking the exemption to demonstrate its applicability. Once the exemption is demonstrated, the complainant must then show that the specific act in question did not come within the exemption.\\\"\\nSeveral years later, however, in Ward v. Dick Dyer & Associates, the supreme court determined the general activity test \\\"would not fulfill the intent of the Legislature in prohibiting unfair trade practices\\\" and adopted the reasoning in a decision of a Tennessee appellate court, which explained the purposes of a similar exemption as follows:\\nThe purpose of the exemption is to insure that a business is not subjected to a lawsuit under the Act when it does something required by law, or does something that would otherwise be a violation of the Act, but which is allowed under other statutes or regulations. It is intended to avoid conflict between laws, not to exclude from the Act's coverage every activity that is authorized or regulated by another statute or agency. Virtually every activity is regulated to some degree. The defendant's interpretation of the exemption would deprive consumers of a meaningful remedy in many situations.\\nIn the present case, InMed argues the UTPA exemption should not apply to MedQuest's actions because \\\"[t]he CON Act does not allow the provision of deceptive information to DHEC in order to evade the requirements of the CON Act.\\\" We agree, however, with MedQuest that this is an unduly narrow interpretation of the law. Whether MedQuest submitted accurate information in support of its NAD applications was necessarily for DHEC to determine as part of the administrative process in deciding whether or not to grant such applications.\\nThe stated purpose of the CON Act is \\\"to promote cost containment, prevent unnecessary duplication of health care facilities and services, guide the establishment of health facilities and services which will best serve public needs, and ensure that high quality services are provided in health facilities in [South Carolina].\\\" To these ends, the Act designates DHEC as \\\"the sole state agency for control and administration of the granting of Certificates of Need and licensure of health facilities \\\" and expressly requires \\\"substantive and procedural regulations . to carry out [DHEC's] licensure and Certificate of Need duties ., including regulations to deal with competing applications.\\\"\\nIn carrying out the legislative purpose of the CON Act, DHEC has adopted Regulation 61-15, entitled \\\"Certification of Need for Health Facilities and Services.\\\" This regulation includes specific procedures for requesting exemptions from the CON requirements. The stated purpose of Regulation 61-15 is virtually identical to the stated purpose of the CON Act.\\nWe agree with MedQuest that the regulatory exemption in section 39-5-40(a) is based on the concept that the legislature has determined certain matters are appropriate for resolution by administrative agencies with particular expertise, rather than by the general jurisdiction of a trial court. This concept is consistent with the supreme court's reasoning in Ward that the exemption \\\"is intended to exclude those actions or transactions which are . . authorized by regulatory agencies....\\\"\\nWard concerned the failure of an automobile dealership to inform the plaintiffs that a car it sold to them had been involved in an accident. In that case, the dealership argued the activity in question was regulated by Title 56 of the South Carolina Code, which (1) requires automobile dealers to be licensed by the South Carolina Department of Highways and Public Transportation; (2) subjects dealers who fail to secure a license to criminal liability; (3) provides for denial, suspension, or revocation of dealer licenses in certain cases; (4) declares certain unfair methods of competition and unfair or deceptive acts or practices to be unlawful; and (5) allows for a private right of action for certain violations. Nowhere, however, as far as we can tell, is there any reference in the opinion or in the record to any statute or regulation governing the transaction that formed the basis for the complaint, i.e., the sale of the car. Moreover, the supreme court did not base its holding on the argument that there was no law allowing or authorizing the specific misconduct the defendant was alleged to have committed.\\nIn contrast, the specific transaction at issue in the present controversy is MedQuest's application for a NAD, a process for which DHEC has formulated exacting procedural requirements. Whether or not MedQuest followed these procedures correctly is uniquely within the competency of DHEC, whose involvement in the application process could continue beyond granting the approval should it ever become apparent that a violation of the CON Act occurred. To allow a jury in the court of common pleas to make the determination that Med-Quest had submitted misleading information in support of its application for a NAD \\u2014 especially after InMed declined to pursue its administrative appeal of DHEC's approval of the application \\u2014 would undermine the purpose of the exemption in section 39-5-40(a), even as that section has been narrowly interpreted in Ward, of \\\"excluding] those actions or transactions which are allowed or authorized by regulatory agencies or other statutes.\\\"\\nWe therefore hold the circuit court erred in declining to hold that, as a matter of law, the regulatory exemption of section 39-5-40 of the UTPA applies to this lawsuit and bars InMed's UTPA claim. Because our determination of this issue controls the case, we need not address MedQuest's remaining arguments or InMed's cross-appeal concerning treble damages and attorney fees.\\nREVERSED.\\nSTILWELL, J, and CURETON, A.J., concur.\\n. S.C.Code Ann. \\u00a7 44-7-110 to -370 (2002).\\n. Id. \\u00a7 44-7-160(6); 24A S.C.Code Ann. Regs. 61-15 \\u00a7 102(f) (Supp. 2003).\\n. See 24A S.C.Code Ann. Regs. 61-15 \\u00a7 102.3 (Supp.2003) (\\\"When any question exists, a potential applicant shall forward a letter requesting a formal determination by [DHEC] as to the applicability of the certificate of need requirements to a particular project.\\\").\\n. M. \\u00a7103.25.\\n. Siemens was also originally named as a defendant, but was granted summary judgment and dismissed from the action. InMed has challenged this ruling in a separate appeal.\\n. The purchase prices presented to DHEC for the two machines at issue in this dispute were $365,000 for the Florence location and $395,000 for the Columbia facility.\\n. S.C.Code Ann. \\u00a7 39-5-40(a) (1985).\\n. 275 S.C. 104, 267 S.E.2d 539 (1980).\\n. Id. at 105, 267 S.E.2d at 540.\\n. Id. at 107, 267 S.E.2d at 541.\\n. Ward v. Dick Dyer & Assocs., 304 S.C. 152, 155, 403 S.E.2d 310, 312 (1991).\\n. Id. at 156, 403 S.E.2d at 312 (quoting Skinner v. Steele, 730 S.W.2d 335, 337 (Tenn.Ct.App.1987)).\\n. S.C.Code Ann. \\u00a7 44-7-120 (2003).\\n. Id. \\u00a7 44-7-140 (emphasis added).\\n. Id. \\u00a7 44-7-150(3).\\n. 24A S.C.Code Ann. Regs. \\u00a7 61-15 (Supp.2003).\\n. Id. \\u00a7 104.\\n. Id. \\u00a7 101.\\n. See, e.g., Unisys Corp. v. South Carolina Budget and Control Bd., 346 S.C. 158, 176, 551 S.E.2d 263, 273 (2001) (holding transactions under the Consolidated Procurement Code are exempt from the UTPA); South Carolina Dep't of Health & Envtl. Control v. Armstrong, 293 S.C. 209, 215-16, 359 S.E.2d 302, 305 (Ct.App.1987) (\\\"The evaluation of the adequacy of a sewage disposal system is uniquely within the competency of DHEC, not the courts.... By interfering with DHEC's final decision on Armstrong's application, the trial judge deprived the de partment of its opportunity to exercise the discretion granted it by the General Assembly.\\\"); United Merchants and Mfrs., Inc. v. S.C. Elec. & Gas Co., 208 F.2d 685, 687 (4th Cir.1953) (holding that the proper remedy for the plaintiff in an action alleging the defendant had improperly induced it to withdraw opposition to a rate increase was an application to the South Carolina Public Service Commission lor revision of rates followed by an appeal from any adverse decision to the South Carolina state court and that an action in the federal district court for fraud was \\\"an attempt to by-pass the Commission, which should not be permitted\\\").\\n. Ward, 304 S.C. at 155, 403 S.E.2d at 312.\\n. Id. at 154, 403 S.E.2d at 311.\\n. See S.C.Code Ann. \\u00a7 56-15-10 through -360 (1991 & Supp.2003). The references to Dick Dyer's arguments are taken from the Respondent's Brief for Dick Dyer & Associates at 6-7, Ward v. Dick Dyer & Assocs., 304 S.C. 152, 403 S.E.2d 310 (1991).\\n.Cf. Smith v. Globe Life Ins. Co., 460 Mich. 446, 597 N.W.2d 28, 38 (1999) (\\\"[WJe conclude that the relevant inquiry is not whether the specific misconduct alleged by the plaintiffs is specifically authorized. Rather, it is whether the general transaction is specifically authorized by law, regardless of whether the specific misconduct alleged is prohibited.\\\").\\n. Anyone \\\"undertaking any activity requiring certificate of need review\\\" without approval from DHEC is subject to penalty as provided by South Carolina Code sections 44-7-320 through -340. 24A S.C.Code Ann. Regs. \\u00a7 61-15.702. Sections 44-7-320 through -340 authorize DHEC to deny, suspend, or revoke licenses; to institute lawsuits for violations of the CON Act; and to subject persons or facilities violating the Act to criminal liability. S.C.Code Ann. \\u00a7 44-7-320 through -340 (2002).\\n. Ward, 304 S.C. at 155, 403 S.E.2d at 312.\\n. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (ruling an appellate court need not review remaining issues when its determination of a prior issue is dispositive of the appeal).\"}"

sc/12655219.json

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+"{\"id\": \"12655219\", \"name\": \"The STATE, Respondent, v. Ahshaad Mykiel OWENS, Appellant\", \"name_abbreviation\": \"State v. Owens\", \"decision_date\": \"2019-01-23\", \"docket_number\": \"Appellate Case No. 2016-000298; Opinion No. 5663\", \"first_page\": \"126\", \"last_page\": \"131\", \"citations\": \"831 S.E.2d 126\", \"volume\": \"831\", \"reporter\": \"South Eastern Reporter 2d\", \"court\": \"Court of Appeals of South Carolina\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-27T21:06:14.826142+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"The STATE, Respondent,\\nv.\\nAhshaad Mykiel OWENS, Appellant\", \"head_matter\": \"The STATE, Respondent,\\nv.\\nAhshaad Mykiel OWENS, Appellant\\nAppellate Case No. 2016-000298\\nOpinion No. 5663\\nCourt of Appeals of South Carolina.\\nOriginally Filed as 2019-UP-421\\nHeard October 9, 2018\\nFiled January 23, 2019\\nWithdrawn, Substituted and Refiled July 10, 2019\\nRehearing Denied August 22, 2019\\nChief Appellate Defender Robert Michael Dudek, of Columbia, for Appellant.\\nAttorney General Alan McCrory Wilson, Deputy Attorney General Donald J. Zelenka, and Assistant Attorney General Susannah Rawl Cole, all of Columbia; and Solicitor Scarlett Anne Wilson, of Charleston, all for Respondent.\", \"word_count\": \"2813\", \"char_count\": \"16944\", \"text\": \"HILL, J.:\\nIn criminal law, the defense of accident is a recluse: it is seldom seen and often misunderstood. This appeal requires us to examine in full light the defense and the language trial courts use when explaining it to juries, focusing on when a defendant who is engaged in unlawful conduct may still be entitled to the defense. While we conclude the charge given here was sufficient, we propose a recommended charge for future cases. We also hold the trial court erred by admitting a family photograph of Jarrod Howard (Victim) in violation of Rule 403 of the South Carolina Rules of Evidence (SCRE), but find the error harmless. We therefore affirm appellant Ahshaad Mykiel Owens' convictions.\\nI.\\nOwens shot Victim while he, Victim, and Victim's best friend, Hunter Bessinger, were transacting a drug deal in the back seat of a parked car near the intersection of Percy and Bogard streets in Charleston. Bessinger testified Owens pulled a gun on him and Victim and shot Victim in the back when Victim tried to flee. Testifying in his own defense, Owens stated Bessinger entered the car first and sat in the middle of the back seat next to him, while Victim got in second and sat next to Bessinger. Owens explained he told Victim he wanted to purchase five Xanax pills, and Victim told him the price. According to Owens, as he reached into his book bag to retrieve his wallet, Bessinger pointed a gun in his face and demanded Owens hand him the book bag. Owens testified he knocked the gun out of Bessinger's hand and, as he wrestled the gun from Bessinger, he accidentally fired the gun, hitting Victim. Owens testified he did not bring a gun to the scene (no gun was ever found).\\nThe trial judge instructed the jury on murder, involuntary manslaughter, self-defense, accident, and armed robbery. Regarding accident, the judge instructed:\\nThe defendant has also raised the defense of accident. An act may be excluded on the ground of accident if it is shown that the act was unintentional, that the defendant was acting lawfully, and that reasonable care was used by the defendant in handling the weapon. The burden is on the State to prove beyond a reasonable doubt that th[e] act was not an accident . but was caused by the negligence or carelessness on the part of the defendant in [the] handling of a dangerous instrumentality or by unlawful activity by the defendant himself.\\nOwens objected to the instruction, arguing the jury might interpret it to mean Owens could not claim accident because he was involved in the unlawful activity of a drug deal (although neither the State nor Owens mentioned such an interpretation in their closing arguments). Owens requested the trial judge clarify to the jury that a defendant engaged in unlawful activity is still entitled to the defense of accident unless the unlawful activity proximately caused the death. The judge declined, explaining it would be an impermissible comment on the facts and he had adequately charged the elements of the defense.\\nThe jury convicted Owens of murder, armed robbery, and possession of a weapon during the commission of a violent crime. He now appeals, contending the trial court erred in (1) refusing his request for specific language in a jury instruction on the defense of accident, and (2) admitting a photograph of Victim in violation of Rule 403, SCRE.\\nII.\\nOwens claims the trial court's accident charge did not adequately convey the scope and meaning of the term \\\"unlawful activity\\\" and explain its relation to the defense of accident.\\nWe review jury instructions for abuse of discretion, meaning that to warrant reversal the instruction must have both misstated the law and prejudiced the defendant. See State v. Jenkins , 408 S.C. 560, 569, 759 S.E.2d 759, 764 (Ct. App. 2014).\\nThe defense of accident (sometimes called misadventure) protects a defendant who, while acting lawfully and with due care, unintentionally causes harm to another. The defense has three elements: (1) the harm was unintentional, (2) the defendant was acting lawfully, and (3) due care was used in the handling of the weapon. See State v. Commander , 396 S.C. 254, 271, 721 S.E.2d 413, 422 (2011) ; see also State v. Brown , 205 S.C. 514, 521, 32 S.E.2d 825, 828 (1945) (\\\"If it be shown that the killing was unintentional; that it was done while the perpetrator was engaged in a lawful enterprise, and was not the result of negligence, the homicide will be excused on the score of accident.\\\"). If the harm was caused by accident, the defendant is not criminally responsible because of the absence of criminal intent. It is precisely this lack of intent that separates accident from self-defense, for self-defense \\\"admits an intentional killing, and sets up as justification a necessity to kill in order to save the accused from death or serious bodily harm, whereas a defense of homicide by accident denies that the killing was intentional.\\\" State v. McDaniel , 68 S.C. 304, 317, 47 S.E. 384, 389 (1904). The defense of accident sometimes surfaces in homicide cases, often alongside self-defense. Despite their varying levels of intent, accident and self-defense are not always mutually exclusive defenses. See State v. White , 425 S.C. 304, 311, 821 S.E.2d 523, 527 (Ct. App. 2018) ; State v. Williams , 400 S.C. 308, 317, 733 S.E.2d 605, 610 (Ct. App. 2012). Of course, accident may appear in contexts far removed from self-defense. Blackstone gives the example of a man lawfully working with a hatchet when the head flies off and kills a bystander. 4 W. BLACKSTONE, COMMENTARIES *182.\\nThe confusion in explaining the defense of accident crops up when no distinction is made between a defendant who has lawfully armed himself with a weapon in self-defense and then accidentally harms the victim (e.g., he stumbles and his finger slips and pulls the trigger) and a defendant who has lawfully armed himself with a weapon in self-defense and then intentionally harms the victim. Only the defendant in the former situation is entitled to the defense of accident, and he is also entitled to have the jury charged that his conduct in arming himself in self-defense was lawful.\\nLayered upon this is the rule that the defense fails if the State proves beyond a reasonable doubt that the defendant's unlawful activity proximately caused the harm. State v. Goodson , 312 S.C. 278, 280 n.1, 440 S.E.2d 370, 372 n.1 (1994). The confusion deepens when the defendant's unlawful activity (e.g., pointing and presenting a firearm) is so intertwined with a lawful activity (self-defense) that the conduct may appear indivisible. Whether the shooting was caused by the lawful or the unlawful activity is an issue that would vex jurors as well as philosophers. See generally W. LAFAVE, CRIMINAL LAW , \\u00a7 7.13(b) (3d ed. 2000) (discussing causation requirement of unlawful activity in context of voluntary manslaughter).\\nOur supreme court has stressed the need for clarity when charging accident amidst such evidence. State v. Burriss , 334 S.C. 256, 259-64, 513 S.E.2d 104, 106-09 (1999) (holding defendant was entitled to an accident instruction because evidence showed his use of a weapon could have been lawful self-defense, even though minor defendant may have possessed the weapon unlawfully and violated the law against \\\"pointing and presenting\\\" a firearm); State v. McCaskill , 300 S.C. 256, 258-59, 387 S.E.2d 268, 269-70 (1990) (error in failing to charge that if the defendant lawfully armed herself in self-defense because of a threat to her safety in her home created by the victim, and the gun accidentally discharged, the jury would have to find her not guilty). Burriss and McCaskill dealt with situations when a trial court should have told the jury that a defendant who lawfully arms himself in self-defense is still entitled to an acquittal based on the defense of accident, even where the defendant's use or possession of the weapon would have otherwise been unlawful. As McCaskill explained in such situations, because \\\"the defense of accident is not applicable unless the defendant was acting lawfully , it is necessary to instruct the jury as to what constitutes a lawful enterprise.\\\" McCaskill , 300 S.C. at 259, 387 S.E.2d at 270. In Burriss and McCaskill , the \\\"lawful enterprise\\\" was self-defense.\\nThe situation here is different. Under Owens' version of events, he did not possess the gun until he grabbed it to arm himself in self-defense. He did not ask the court to clarify that arming himself was lawful conduct; he asked the court to specify what his unlawful conduct was and that, to preclude his accident defense, it must have caused Victim's death.\\nWe share the trial court's concern that Owens' requested clarification may have approached a comment on the facts. See S.C. CONST ., art. V, \\u00a7 21 (\\\"Judges shall not charge juries in respect to matters of fact, but shall declare the law.\\\"). The charge as given informed the jury that to bar the defense of accident, the State bore the burden of proving that the \\\"act\\\" (i.e., the shooting) was caused by the defendant's unlawful activity. Again, it appears Owens wanted the trial court to tell the jury that the fact he was involved in a drug deal does not, without more, prevent him from being found not guilty based on the defense of accident. Viewing the charge in the light most favorable to Owens, as we must, Commander , 396 S.C. at 271, 721 S.E.2d at 422, we conclude the charge as delivered permitted the jury to reach such a verdict, a verdict Owens' counsel argued the facts and the law warranted.\\nAs long as a jury charge mirrors the law, it need not mimic a party's chosen language. See Sheppard v. State , 357 S.C. 646, 665, 594 S.E.2d 462, 473 (2004) (\\\"A jury charge is correct if it contains the correct definition of the law when read as a whole.\\\"); State v. Burkhart , 350 S.C. 252, 261, 565 S.E.2d 298, 303 (2002) (\\\"The substance of the law must be charged to the jury, not particular verbiage.\\\"). We note too that drug dealing is an unlawful activity that can under certain circumstances preclude an accident charge altogether. See State v. Smith , 391 S.C. 408, 415, 706 S.E.2d 12, 16 (2011). In a recent 3-2 decision, our supreme court held that a defendant who brought a concealed pistol to a drug deal brought on the difficulty and is therefore not entitled to a self-defense charge. State v. Williams , Op. No. 27895, 427 S.C. 246, 830 S.E.2d 904, 2019 WL 2518797 (S.C. Sup. Ct. filed June 19, 2019) (Shearouse Adv. Sh. No. 25 at 13) (\\\"Williams' actions proximately caused the difficulty as a matter of established law because his act of taking a loaded, unlawfully-possessed pistol into an illegal drug transaction was not 'merely incidental' to the act of arming himself in self-defense\\\" (internal citations omitted)).\\nNevertheless, we recognize the challenges of explaining the defense of accident to jurors. In crafting jury instructions, as in any architecture, less is often more. But as Frank Lloyd Wright is reputed to have said, \\\"less is more only when more is too much.\\\" It is the trial court's job to explain the general principles of law raised by the evidence to the jury; it is the lawyers' job to explain to the jury how the specific facts in evidence relate to those general principles. We recommend the following language when instructing jurors on the defense of accident:\\nThe defendant has raised the defense of accident. Harm to another, including death, is excusable on the ground of accident if the harm was caused by the unintentional and lawful act of a defendant exercising due care. For the defense of accident to apply, you must find: (1) the act of the defendant that caused the harm was accidental and not intentional; (2) the act was lawful; and (3) the act was not careless, negligent, or reckless.\\nIf you find the defense of accident applies, you must find the defendant not guilty. However, if the State has proven beyond a reasonable doubt that any of the three elements of the defense of accident do not apply, then the defendant is not entitled to the defense. A defendant engaged in unlawful conduct, including the unlawful possession of a weapon, is entitled to claim the defense of accident unless the State has proven beyond a reasonable doubt that the unlawful conduct was not merely incidental to but was the direct and foreseeable cause of the Victim's harm.\\nWhen the evidence supports an accident charge on behalf of a defendant who has lawfully armed himself in self-defense, we suggest the following additional instruction consistent with Burriss and McCaskill :\\nA defendant exercising due care who accidentally harms another while acting in self-defense is acting lawfully. Therefore, a defendant can be acting lawfully, even if he is in unlawful possession of a weapon, if you find he was entitled to arm himself in self-defense and the victim was shot by accident by the unintentional discharge of the weapon.\\nIII.\\nThe trial court, over Owens' objection, admitted a photograph of Victim embracing his brother in a setting unrelated to the shooting. The State argues the photograph was relevant because it showed Victim's size, evidence that bore on how the crime unfolded. The State contends that, given the available space in the back seat of the car, Victim's size was relevant to the jury's fact-finding task.\\nWhat little relevance the photograph had was vastly outweighed by its danger of unfair prejudice. Rule 403, SCRE. Victim's identity was not at issue and the photograph did not depict an objective measure of his size; Victim's actual height and weight were included in the autopsy results the jury heard. All the photograph could accomplish was to counteract testimony that Victim was selling Owens drugs when he was shot, and arouse sympathy for Victim. The trial court therefore exceeded its discretion in admitting it. Morin v. Innegrity, LLC , 424 S.C. 559, 576, 819 S.E.2d 131, 140 (Ct. App. 2018) (\\\"Abuse of discretion occurs when the ruling rests on a legal error or inadequate factual support.\\\"). See State v. Hawes , 423 S.C. 118, 129, 813 S.E.2d 513, 519 (Ct. App. 2018) (\\\"To be classified as unfairly prejudicial, photographs must have a 'tendency to suggest a decision on an improper basis, commonly, though not necessarily, an emotional one.' \\\" (quoting State v. Torres , 390 S.C. 618, 623, 703 S.E.2d 226, 228-29 (2010) ); see also State v. Langley , 334 S.C. 643, 515 S.E.2d 98 (1999) (holding photograph of murder victim in high school graduation regalia irrelevant to prove the defendant's guilt, victim's identity was not in issue, and photo was an attempt to distance victim from drug dealing activity); State v. Livingston , 327 S.C. 17, 488 S.E.2d 313 (1997) (holding photograph of victim and husband taken before she was killed in an automobile accident irrelevant to the determination of defendant's guilt for felony DUI).\\nTo warrant reversal, however, Owens must show the error prejudiced him, meaning the challenged evidence likely influenced the verdict. Fields v. Reg'l Med. Ctr. Orangeburg , 363 S.C. 19, 26, 609 S.E.2d 506, 509 (2005). Viewing the record as a whole, it is unlikely the emotional pull of the photograph was enough to distract a rational juror from the main issues at trial or otherwise influence the verdict.\\nOne reason the photograph should have been excluded under Rule 403 was because it had scant relevance to the jury's task of determining the germane facts. Our conclusion that the evidence was unduly prejudicial within the context of Rule 403 does not mean the prejudice was potent enough to infect the fairness of the trial or pollute the verdict. The prejudice, like the relevance it dwarfed, had little effect when considered alongside the other evidence. Owens admitted he shot Victim, so the only issue for the jury was whether Owens was guilty of the lesser involuntary manslaughter offense or whether he was entitled to acquittal based on self-defense or the defense of accident. This issue turned on Owens' credibility and intent, a subject a family photograph of Victim could not directly impact. Any error, therefore, was harmless beyond a reasonable doubt. Hawes , 423 S.C. at 133, 813 S.E.2d at 521 (\\\"Error is harmless when it could not reasonably have affected the result of the trial.\\\").\\nOwens' convictions are\\nAFFIRMED.\\nKONDUROS and MCDONALD, JJ., concur.\"}"

sc/1478813.json

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+"{\"id\": \"1478813\", \"name\": \"Bennie WICKER, Respondent, v. SOUTH CAROLINA DEPARTMENT OF CORRECTIONS, Appellant\", \"name_abbreviation\": \"Wicker v. South Carolina Department of Corrections\", \"decision_date\": \"2004-08-23\", \"docket_number\": \"No. 25859\", \"first_page\": \"421\", \"last_page\": \"425\", \"citations\": \"360 S.C. 421\", \"volume\": \"360\", \"reporter\": \"South Carolina Reports\", \"court\": \"Supreme Court of South Carolina\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T18:32:50.866206+00:00\", \"provenance\": \"CAP\", \"judges\": \"TOAL, C.J., and BURNETT, J., concur. PLEICONES, J., dissenting in a separate opinion. MOORE, J., not participating.\", \"parties\": \"Bennie WICKER, Respondent, v. SOUTH CAROLINA DEPARTMENT OF CORRECTIONS, Appellant.\", \"head_matter\": \"602 S.E.2d 56\\nBennie WICKER, Respondent, v. SOUTH CAROLINA DEPARTMENT OF CORRECTIONS, Appellant.\\nNo. 25859.\\nSupreme Court of South Carolina.\\nSubmitted April 21, 2004.\\nDecided Aug. 23, 2004.\\nLake Eric Summers, of Vinton D. Lide & Associates, of Lexington, for Appellant.\\nBennie Wicker, Jr., of Bennettsville, pro se.\", \"word_count\": \"1144\", \"char_count\": \"7021\", \"text\": \"Justice WALLER:\\nThis is a direct appeal from an order of the circuit court which affirmed the decision of the Administrative Law Judge (ALJ). The ALJ held that Respondent, Bennie Wicker, was entitled to be compensated the prevailing wage of $5.25 per hour for the time he was in training for his employment at the South Carolina Department of Corrections (DOC) Division of Prison Industries. We affirm.\\nFACTS\\nWicker, while an inmate at Evans Correctional Institute, participated in the Prison Industries Program. During the first 320 hours of his employment, he was paid .25-.75 per hour; he was thereafter paid an hourly wage of $5.25. He filed an inmate grievance contending his training wages violated the Prevailing Wage Statute, S.C.Code Ann. \\u00a7 24-3-430(D) (Supp.2002). The DOC denied his appeal, and he appealed to the Administrative Law Judge (ALJ). The ALJ reversed the DOC's decision, finding Wicker was entitled to the prevailing wage during his first 320 hours of employment, and finding no authority for the DOC to deviate from the plain requirement of \\u00a7 24-3-430. Accordingly, the DOC was ordered to compensate Wicker at a rate of $5.25 per hour for his first 320 hours of work. The circuit court affirmed.\\nISSUE\\nDid the circuit court err in holding Wicker was entitled to a $5.25 per hour training wage?\\nDISCUSSION\\nThe statutes under which Wicker seeks relief are part of a statutory scheme creating a Prison Industries (PI) program to provide for employment of convicts and utilize their labor for self-maintenance and reimbursement of expenses. See S.C.Code Ann. \\u00a7 24-3-310 (Supp.2003). In 1995, the General Assembly enacted S.C.Code Ann. 24-3^30, authorizing the DOC to use inmate labor in private industry. Section 24-3-430(D) provides that, \\\"[n]o inmate participating in the program may earn less than the prevailing wage for work of similar nature in the private sector.\\\" Wicker filed an inmate grievance with the DOC, alleging his training wage of .25-.75 per hour was in violation of the statute. The DOC denied his grievance and he appealed to the ALJ, who reversed. The ALJ found no statutory authority for DOC to pay Wicker less than the prevailing wage; the circuit court affirmed.\\nThe DOC appeals, contending the statutes under which Wicker seeks relief do not entitle him to the prevailing wage, and asserting the ALJ was without subject-matter jurisdiction to hear his appeal.\\nAs recognized in the companion case of Adkins v. South Carolina Dep't of Corrections, 360 S.C. 413, 602 S.E.2d 51, 2004 WL 1878705 (2004), we agree with the DOC that section 24-3-430(D) does not give rise to a private, civil cause of action in Wicker. However, simply because Wicker may not file a civil claim for damages in circuit court does not mean he is without any remedy. There are numerous issues relating to inmates which, although not giving rise to a private, civil cause of action, are nonetheless grievable through DOC's internal grievance processes. For example, although inmates may not sue for civil damages on matters relating to parole, work release, or work credits, they may enforce such rights via DOC grievance procedures. We find no reason such procedures should not apply when an inmate challenges the wages he or she is being paid, particularly where there is a statute mandating payment of the prevailing wage. Accord ingly, we hold that although Wicker has no claim for civil damages, he properly filed a grievance with the DOC.\\nThe DOC also contends, citing the ALJD's en banc decision in McNeil v. South Carolina Dept. of Corrections, 02-ALJ-04-00336-AP (filed Sept. 5, 2001), that the ALJ was without subject-matter jurisdiction to review its denial of Wicker's grievance. We disagree.\\nWe find that where, as here, the state has created a statutory right to the payment of a prevailing wage, it cannot thereafter deny that right without affording due process of law. Cf. Piatt v. MacDougall, 773 F.2d 1032, 1036 (9th Cir.1985) (where state has established, by statute, a right of inmates to compensation for work performed for private parties, it cannot deny that right after they earned the wages, without affording due process of the law); Borror v. White, 377 F.Supp. 181 (W.D.Va.1974) (although there was no federal constitutional right to payment, inmate might be entitled to such compensation under state statute).\\nWe are not unmindful of our opinion in Sullivan v. South Carolina Dep't of Corrections, 355 S.C. 437, 586 S.E.2d 124 (2003), in which we held the ALJ has jurisdiction to review DOC grievance proceedings only if they involve the denial of \\\"state created liberty interests.\\\" There, we recognized that our opinion in Al-Shabazz v. State, 338 S.C. 354, 368, 527 S.E.2d 742, 750 (1999), held that administrative matters typically arise in two ways: (1) when an inmate is disciplined and punishment is imposed and (2) when an inmate believes prison officials have erroneously calculated his sentence, sentence-related credits, or custody status. However, we did not limit Al-Shabazz to these two instances. The Al-Shabazz Court explained that procedural due process is guaranteed when an inmate is deprived of an interest encompassed by the Fourteenth Amendment's protection of liberty and property. 338 S.C. at 369, 527 S.E.2d at 750.\\nWe find the state's statutory mandate that inmates be paid the prevailing wage creates such an interest, which may not be denied without due process. Piatt v. MacDougall, supra. Accordingly, in this very limited circumstance, we hold the DOC's failure to pay in accordance with the statutes is reviewable by the ALJ.\\nFinally, we concur with the ALJ and the circuit court that there is simply nothing in the statutory scheme authorizing the DOC to pay Wicker a training wage less than the prevailing wage. Hodges v. Rainey, 341 S.C. 79, 85, 533 S.E.2d 578, 581 (2000) (If a statute's language is plain, unambiguous, and conveys a clear meaning, \\\"the rules of statutory interpretation are not needed and the court has no right to impose another meaning\\\"). Accordingly, the judgment below is affirmed.\\nAFFIRMED.\\nTOAL, C.J., and BURNETT, J., concur. PLEICONES, J., dissenting in a separate opinion. MOORE, J., not participating.\\n. We note that our holding today is extremely limited and is not to be viewed as expanding the jurisdiction of the ALJ in any other circumstance.\"}"

sc/1478858.json

@@ -0,0 +1 @@
+"{\"id\": \"1478858\", \"name\": \"In the Matter of M. Parker VICK, Respondent\", \"name_abbreviation\": \"In re Vick\", \"decision_date\": \"2003-09-26\", \"docket_number\": \"\", \"first_page\": \"559\", \"last_page\": \"560\", \"citations\": \"360 S.C. 559\", \"volume\": \"360\", \"reporter\": \"South Carolina Reports\", \"court\": \"Supreme Court of South Carolina\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T18:32:50.866206+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In the Matter of M. Parker VICK, Respondent.\", \"head_matter\": \"603 S.E.2d 409\\nIn the Matter of M. Parker VICK, Respondent.\\nSupreme Court of South Carolina.\\nSept. 26, 2003.\", \"word_count\": \"338\", \"char_count\": \"2080\", \"text\": \"ORDER\\nThe Office of Disciplinary Counsel has filed a petition asking this Court to place respondent on interim suspension pursuant to Rule 17(b), RLDE, Rule 413, SCACR. Respondent consents to the issuance of an order placing him on interim suspension.\\nIT IS ORDERED that respondent's license to practice law in this state is suspended until further order of the Court.\\nIT IS FURTHER ORDERED that Edward L. Bailey, Esquire, and Robert H. Cooper, Esquire, are hereby appointed to assume responsibility for respondent's client files, trust account(s), escrow account(s), operating account(s), and any other law office account(s) respondent may maintain. Mr. Bailey and Mr. Cooper shall take action as required by Rule 31, RLDE, Rule 413, SCACR, to protect the interests of respondent's clients. Mr. Bailey and Mr. Cooper may make disbursements from respondent's trust account(s), escrow accounts), operating account(s), and any other law office accounts) respondent may maintain that are necessary to effectuate this appointment.\\nThis Order, when served on any bank or other financial institution maintaining trust, escrow and/or operating accounts of respondent, shall serve as an injunction to prevent respondent from making withdrawals from the account(s) and shall further serve as notice to the bank or other financial institution that Edward L. Bailey, Esquire, and Robert H. Cooper, Esquire, have been duly appointed by this Court.\\nFinally, this Order, when served on any office of the United States Postal Service, shall serve as notice that Edward L. Bailey, Esquire, and Robert H. Cooper, Esquire, have been duly appointed by this Court and have the authority to receive respondent's mail and the authority to direct that respondent's mail be delivered to either of their offices.\\nThis appointment shall be for a period of no longer than nine months unless request is made to this Court for an extension.\\nIT IS SO ORDERED.\\n/s/ Costa M. Pleicones, J.\\nFOR THE COURT\"}"

sc/147924.json

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+"{\"id\": \"147924\", \"name\": \"In the Matter of Matthew E. DAVIS, Respondent\", \"name_abbreviation\": \"In re Davis\", \"decision_date\": \"2000-01-24\", \"docket_number\": \"No. 25056\", \"first_page\": \"459\", \"last_page\": \"462\", \"citations\": \"338 S.C. 459\", \"volume\": \"338\", \"reporter\": \"South Carolina Reports\", \"court\": \"Supreme Court of South Carolina\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-11T00:40:47.015373+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In the Matter of Matthew E. DAVIS, Respondent.\", \"head_matter\": \"527 S.E.2d 358\\nIn the Matter of Matthew E. DAVIS, Respondent.\\nNo. 25056.\\nSupreme Court of South Carolina.\\nSubmitted Dec. 20, 1999.\\nDecided Jan. 24, 2000.\\nMatthew E. Davis, of Columbia, pro se.\\nAttorney General Charles M. Condon and Senior Assistant Attorney General James G. Bogle, Jr., both of Columbia, for the Office of Disciplinary Counsel.\", \"word_count\": \"799\", \"char_count\": \"5024\", \"text\": \"PER CURIAM:\\nIn this attorney disciplinary matter, respondent and disciplinary counsel have entered into an agreement under Rule 21 of the Rules for Lawyer Disciplinary Enforcement (RLDE) contained in Rule 413, SCACR. In the agreement, respondent admits misconduct and consents to a public reprimand. We accept the agreement and publicly reprimand respondent.\\nRespondent was employed by the law firm of E.W. Cromartie, II, in Columbia, as an associate whose primary duty was real estate transactions. Respondent had the authority to sign on a real estate trust account maintained by the law firm at BB & T Bank in Columbia.\\nRespondent failed to comply fully with Rule 417, SCACR, in that he failed to conduct monthly reconciliations of the BB & T trust account, and he did not maintain a trial balance in the real estate trust account, or a running balance for each client by identifying whose money was in the account at any given time.\\nRespondent failed to supervise non-lawyer employee(s) who were responsible for reconciling the trust account, and ensure correct wiring instructions were given to lenders for funds to be wired to the real estate trust account. This lack of supervision resulted in funds being wired to another trust account maintained by the law firm at BB & T, which led to numerous in-branch transfers of funds from the other trust account to the real estate trust account.\\nRespondent's title insurance was written through First American Title Insurance Company. After a closing took place, deeds and mortgages were to be promptly recorded. Outstanding mortgages and other liens were to be paid immediately. In order to issue a policy of title insurance First American had to receive a final Certification of Title from respondent. Respondent failed to properly and timely provide satisfactions of mortgages, so First American could close- out its files in a timely manner. The resulting delays ranged from six to eighteen months. First American, in order to provide lenders with the policies it was committed to issue, finally had to utilize its abstractor and abstractors in other counties to provide the necessary information.\\nRespondent wrote a number of checks to First American for title insurance from the firm's real estate trust account. First American did not deposit these checks until it had received all appropriate information. The checks were not negotiated properly because of all the delays involved. Respondent failed to properly safeguard title insurance money held in the real estate trust account, and failed to notify Mr. Cromartie of the identity of the funds. Mr. Cromartie, without contacting respondent or making an effort to determine the exact identity of those funds, assumed they were accumulated fees and withdrew them. When the title company began depositing the premium checks, the checks were returned NSF. Insufficient funds were in the trust account for all the checks to be honored.\\nRespondent left the Cromartie Law Firm on or about January 4, 1998. At the time he left the firm, there were sufficient funds in the real estate trust account to satisfy the outstanding title insurance premium checks. At or about the time Respondent left the firm, approximately six trust account checks for title insurance premiums had been returned NSF to First American. First American then stopped depositing the checks, since it feared NSF fees. By the time a complaint was made to the Commission on Lawyer Conduct, First American was holding approximately thirty checks. First American sent demand letters to Mr. Cromartie. Mr. Cromartie paid the outstanding premiums by certified checks in the amounts of $1,000.00, dated July 9, 1998, and $7,038.00, dated August 18,1998. He was refunded $0.17.\\nRespondent has violated the following provisions of the Rules of Lawyer Disciplinary Enforcement, Rule 413, SCACR: Rule 7(a)(1) (violated the Rules of Professional Conduct); Rule 7(a)(5) (engaged in conduct tending to pollute the administration of justice or to bring the courts or the legal profession into disrepute or conduct demonstrating an unfitness to practice law); and Rule 7(a)(6) (violated the oath of office taken upon admission to practice law in this state).\\nRespondent has violated the following provisions of the Rules of Professional Conduct, Rule 407, SCACR: Rule 1.1 (competence); Rule 1 .3 (diligence); Rule 1.15 (safekeeping property); Rule 8.4(a) (violation of the Rules of Professional Conduct); and Rule 8.4(e) (engaged in conduct that is prejudicial to the administration of justice).\\nRespondent's conduct warrants a public reprimand. Accordingly, respondent is hereby publicly reprimanded.\\nPUBLIC REPRIMAND.\"}"

sc/169541.json

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+"{\"id\": \"169541\", \"name\": \"BEAUFORT COUNTY, South Carolina and Dorothy Gnann, Appellants, v. Flora G. TRASK; the City of Beaufort, South Carolina; the State of South Carolina; and the Town of Port Royal, South Carolina, Respondents\", \"name_abbreviation\": \"Beaufort County v. Trask\", \"decision_date\": \"2002-05-13\", \"docket_number\": \"No. 3490\", \"first_page\": \"522\", \"last_page\": \"530\", \"citations\": \"349 S.C. 522\", \"volume\": \"349\", \"reporter\": \"South Carolina Reports\", \"court\": \"South Carolina Court of Appeals\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-11T00:14:17.630513+00:00\", \"provenance\": \"CAP\", \"judges\": \"HEARN, C.J, and HOWARD, J., concur.\", \"parties\": \"BEAUFORT COUNTY, South Carolina and Dorothy Gnann, Appellants, v. Flora G. TRASK; the City of Beaufort, South Carolina; the State of South Carolina; and the Town of Port Royal, South Carolina, Respondents.\", \"head_matter\": \"563 S.E.2d 660\\nBEAUFORT COUNTY, South Carolina and Dorothy Gnann, Appellants, v. Flora G. TRASK; the City of Beaufort, South Carolina; the State of South Carolina; and the Town of Port Royal, South Carolina, Respondents.\\nNo. 3490.\\nCourt of Appeals of South Carolina.\\nHeard April 9, 2002.\\nDecided May 13, 2002.\\nJack M. Scoville, Jr., of Georgetown; and Frederick M. Corley, of Beaufort, for appellants.\\nWilliam B. Harvey, III, of Harvey & Battey; Scott W. Lee, both of Beaufort; and Attorney General Charles M. Condon and Senior Assistant Attorney General C. Havird Jones, Jr., both of Columbia, for respondents.\", \"word_count\": \"2675\", \"char_count\": \"16440\", \"text\": \"GOOLSBY, Judge:\\nAppellants Beaufort County and Dorothy Gnann brought this action seeking a declaratory judgment invalidating an annexation ordinance enacted by the City of Beaufort (the City). The trial court held the annexation was proper and Appellants lacked standing to challenge the ordinance. We affirm.\\nFACTS\\nOn January 11, 1999, Flora G. Trask petitioned to have the City annex both her property on Upper Cane Island and the portion of the Beaufort River located between the City and Trask's property. Trask made her request using the \\\"100-per cent\\\" method under South Carolina Code section 5-3-150. On February 9, 1999, the Beaufort City Council granted the petition and enacted an ordinance providing for the City's annexation of both Trask's property and the waters and marshes of the Beaufort River between that property and the previous city limits.\\nOn April 7, 1999, Appellants filed a notice of intention to contest the annexation ordinance. On May 6,1999, Appellants filed their summons and complaint in the present case.\\nOn May 7, 1999, the Town of Port Royal sued the City, alleging that the Town's municipal boundaries extended to the eastern marsh of the Beaufort River and that the City, in enacting the ordinance, had crossed those water boundaries to gain contiguity to Trask's property on Upper Cane Island. The action was dismissed in September 1999 pursuant to an agreement between the Town and the City that devised a clear line of delineation between the two municipalities. The agreement provided the City would modify the water boundaries in the ordinance and the Town would acknowledge the annexation ordinance, as modified, was \\\"legal and valid.\\\"\\nOn December 17, 1999, Appellants amended their pleadings to join Trask, the State of South Carolina, and the Town as defendants. In their amended complaint, Appellants alleged three grounds for invalidating the ordinance: (1) the property sought to be annexed was not contiguous to the City; (2) the City Council's actions were \\\"arbitrary, irrational and capricious\\\"; and (3) no one owning an interest in the waters and marshes of the Beaufort River had consented to the annexation of that property.\\nA full merits hearing took place on June 7, 2000. On July 21, 2000, the trial court granted judgment to the defendants, holding (1) contiguity was not destroyed by the waters and marshlands separating the Trask property from the city limits; (2) Appellants lacked standing to attack the annexation ordinance; (3) Appellants nevertheless failed to meet their burden of proof to show that the City Council's actions were arbitrary, irrational, and capricious; and (4) the allegation that the State of South Carolina, as purported owner of the waters and marshlands annexed by the City, did not consent to the annexation was insufficient to invalidate the annexation petition.\\nDISCUSSION\\n1. Appellants first argue the trial court, in holding they lacked standing to pursue their action, improperly discredited this court's opinion in St. Andrews Public Service District v. City of Charleston as \\\"not yet final\\\" and being in conflict with two supreme court decisions. Notwithstanding the trial court's remarks, we hold the present case is distinguishable from St. Andrews.\\nSt. Andrews involved the dismissal of a lawsuit brought by the St. Andrews Public Service District challenging two annexation ordinances enacted by the City of Charleston. The trial court dismissed the action on the ground that, because the Public Service District did not own real property in the area and had no proprietary interest or statutory rights in the annexed area, it lacked standing to pursue the challenge. This court reversed, observing that \\\"the Charleston City Council attempted] to establish contiguity, not by merely crossing a roadway to annex an adjacent property, but by annexing the length of a road to establish a common boundary\\\" and further noting that \\\"[tjhat kind of annexation is not authorized by the laws of this state.\\\" Based on the supreme court's recognition that private individuals have standing to attack a void annexation, that is, one not authorized by law, this court concluded the Public Service District, even though without either proprietary interests or statutory rights in the annexed area, had standing to challenge the validity of the annexation ordinances at issue. In other words, if a municip\\u00e1lity annexes property that is beyond its reach, the annexation must fail as a matter of law, even when there was compliance with the statutory requirements to effect the annexation. It follows, then, that if an annexation is void as a matter of law, a plaintiff need not \\\"assert an infringement of its own proprietary interests or statutory rights in order to establish standing\\\" to challenge it.\\nOn appeal, Appellants appear to assert the annexation was void because of (1) a lack of contiguity, and (2) the failure of the owner of the intervening property to join in the annexation petition. They further argue that, because of the absence of consent from one of the purported owners of the annexed properties, the annexation is necessarily defective under the 100-per cent method and therefore must fail as a matter of law. We find these arguments unavailing.\\nAs to the alleged lack of contiguity, Appellants argue, \\\"The law authorizes the City to annex only contiguous territo ry, and since the property purportedly annexed is not contiguous because the owner of the intervening property has not petitioned for its annexation, the annexation is void.\\\" We interpret this argument to mean that the requirement of contiguity was not met because of the presence of the waters and marshes of the Beaufort River between the Trask property and the City. We agree with the trial court, however, that the separation between the City and the Trask property by the waters and marshes of the Beaufort River did not destroy contiguity.\\nAs to the failure of the owner of the intervening property to sign the annexation petition, Appellants argue the absence of consent by the State of South Carolina, which owned the area of the Beaufort River annexed by the City, made the annexation void under the 100-per cent method. We agree with the trial court, however, that this challenge concerned only the method of the annexation rather than the annexation itself. The alleged defect went to only the issue of compliance with the statutory requirements for annexation. It would not preclude the City from annexing the property if the required statutory procedures had been followed. Appellants, then, have shown that the ordinance was merely voidable rather than void.\\n2. Appellants further contend that, because the County alleged infringement of its statutory rights and proprietary interests, it had standing to maintain this action. We find no reversible error.\\nThe trial court held that the County \\\"cannot show that there has been an infringement of its own proprietary interests or statutory rights.\\\" In so holding, the trial court focused on the proof adduced at the merits hearing of such an infringement rather than on the allegations in the complaint.\\nAssuming without deciding that the complaint contained allegations sufficient to give the County standing to challenge the annexation ordinance, we nevertheless hold there is ample authority to affirm the trial court's determination that the County's failure to prove these allegations at the merits hearing ultimately defeated its claim to standing. Moreover, Appellants have not argued in their brief that the trial court erred in finding they made an insufficient showing at the merits hearing that the County had standing to pursue this action.\\n3. Gnann argues she has standing to pursue this action by virtue of the South Carolina Uniform Declaratory Judgments Act and her status as a taxpayer. We disagree.\\nIn support of her argument, Gnann cites Sloan v. School District of Greenville County for the proposition that to establish standing she need only demonstrate a justiciable controversy. The presence of a justiciable controversy, however, does not by itself give a litigant standing to sue. As the supreme court has stated, standing requires \\\"a personal stake in the subject matter of the lawsuit, i.e., one must be a real party in interest.\\\" With regard to taxpayer standing, \\\"[t]he general rule is that a taxpayer may not maintain a suit to enjoin the action of State officers when he has no special interest and his only standing is the exceedingly small interest of a general taxpayer.\\\" Stated another way, absent a truly individual injury, Gnann, as a taxpayer plaintiff, must demonstrate some overriding public purpose or concern to confer standing to sue on behalf of her fellow taxpayers.\\nOn appeal, Appellants argue only that Gnann had taxpayer standing because of the allegations in the complaint that \\\"the actions of the city in annexing the subject property are void and were done without lawful authority\\\" and would therefore result in the expenditure of municipal funds to provide services to the annexed territory. It would appear to us, then, that Gnann has not alleged any injury unique to her as a taxpayer. Also, given our determination that the annexation was voidable rather than void, we agree with the trial court that Gnann failed to demonstrate an overriding public purpose or concern that would give her taxpayer standing to challenge the annexation.\\nAFFIRMED.\\nHEARN, C.J, and HOWARD, J., concur.\\n. S.C.Code Ann. \\u00a7 5-3-150(3) (Supp.2001). This paragraph provides in pertinent part as follows:\\n[A]ny area or property which is contiguous to a municipality may be annexed to the municipality by filing with the municipal governing body a petition signed by all persons owning real estate in the area requesting annexation. Upon the agreement of the governing body to accept the petition and annex the area, and the enactment of an ordinance declaring the area annexed to the municipality, the annexation is complete.\\nThe legislature made several revisions to this paragraph in 2000, none of which are at issue in this appeal.\\n. The master-in-equity for Beaufort County heard the case in his capacity as special circuit judge under a standing order from the South Carolina Supreme Court.\\n. 339 S.C. 320, 529 S.E.2d 64 (Ct.App.2000), cert. granted, (Feb. 21, 2001).\\n. The two supreme court decisions cited by the trial court were State ex rel Condon v. City of Columbia, 339 S.C. 8, 528 S.E.2d 408 (2000), and State Budget and Control Board v. City of Columbia, 308 S.C. 487, 419 S.E.2d 229 (1992).\\n. St. Andrews, 339 S.C. at 322, 529 S.E.2d at 65.\\n. Id. at 323-24, 529 S.E.2d at 66.\\n. Id. at 326, 529 S.E.2d at 67 (emphasis added).\\n. Id.\\n. Quinn v. City of Columbia, 303 S.C. 405, 401 S.E.2d 165 (1991).\\n. State Budget and Control Bd. v. City of Columbia, 308 S.C. at 489, 419 S.E.2d at 230.\\n. See Bryant v. City of Charleston, 295 S.C. 408, 411, 368 S.E.2d 899, 901 (1988) (\\\"[C]ontiguity is not destroyed by water or marshland within either the annexing municipality's existing boundaries or those of the property to be annexed merely because it separates the parcels of highland involved.\\\").\\nAfter the opinion in St. Andrews was filed, the legislature enacted South Carolina Code section 5-3-305, which defines \\\"contiguous\\\" as the term applies to annexation and further states:\\nContiguity is not established by a road, waterway, right-of-way, easement, railroad track, marshland, or utility line which connects one property to another; however, if the connecting road, waterway, easement, railroad track, marshland, or utility line intervenes between two properties, which but for the intervening connector would be adjacent and share a continuous border, the intervening connector does not destroy contiguity.\\nS.C.Code Ann. \\u00a7 5-3-305 (Supp.2001) (emphases added). This section took effect May 1, 2000, which was after the reading of the annexation ordinance, but before the trial court held the merits hearing. 2000 S.C. Acts 250, \\u00a7 3. Although the trial court did not mention this section in the appealed order, we cite it as additional support for our holding that the body of water between the Trask property and the City did not destroy contiguity.\\n. Although the State was named as a defendant in this action, it filed no responsive pleadings and was thus in default. Furthermore, although the State is listed as a party in this appeal, no brief has been filed on the State's behalf.\\n. See Quinn, 303 S.C. at 407, 401 S.E.2d at 167 (holding opponents to an annexation failed to establish standing in that they challenged only \\\"the annexation method in seeking to have the annexation declared void and raise[d] no claim that it was unauthorized by law\\\"); St. Andrews, 339 S.C. at 323, 529 S.E.2d at 65 (\\\"One cannot merely challenge the methods by which the annexation occurred, but must allege the annexation is unauthorized by the laws of this State.\\\").\\n. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (stating elements of standing \\\"are not mere pleading requirements but rather an indispensable part of the plaintiff's case\\\"; therefore, \\\"each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation\\\"), cited in Beaufort Realty Co. v. Beaufort County, 346 S.C. 298, 301 and 303, 551 S.E.2d 588, 589 and 590 (Ct.App.2001), cert. denied, (March 6, 2002); Shillito v. City of Spartanburg, 214 S.C. 11, 22, 51 S.E.2d 95, 99 (1948) (\\\"As a rule, private citizens may not restrain official acts when they fail to allege and prove damage to themselves different in character from that sustained by the public generally.\\\") (emphasis added).\\n. See Rule 207(b)(1)(B), SCACR (\\\"Ordinarily, no point will be considered which is not set forth in the statement of the issues on appeal.\\\"); First Sav. Bank v. McLean, 314 S.C. 361, 444 S.E.2d 513 (1994) (deeming an issue abandoned because the appellant failed to provide pertinent argument or supporting authority); Biales v. Young, 315 S.C. 166, 432 S.E.2d 482 (1993) (stating the appellate court will affirm a ruling if the complaining party does not challenge that ruling).\\n. S.C.Code Ann. \\u00a7 15-53-10 through -140 (1976 & Supp.2001).\\n. 342 S.C. 515, 537 S.E.2d 299 (Ct.App.2000).\\n. Evins v. Richland County Hist. Pres. Comm'n, 341 S.C. 15, 21, 532 S.E.2d 876, 879 (2000).\\n. Crews v. Beattie, 197 S.C. 32, 49, 14 S.E.2d 351, 357-58 (1941).\\n. The prerequisites for challenging a municipal ordinance based on taxpayer standing has been generally described as follows:\\n[Tjaxpayers are not authorized to maintain a suit to test the validity of an ordinance simply because they are taxpayers. They must show that the effect of the ordinance will be to increase their burden of taxation, to divert a fund from a purpose intended by law, or to affect them differently from other citizens in a similar position. It is not sufficient that they maintain the proceeding merely as a citizen to protect abstract rights. Nor does mere difference in degree of interest of one taxpayer from that of another in itself entitle the former to maintain a suit to test the validity of the ordinance. A taxpayer, at large, of a municipality, having no private interest in the question any more than other taxpayers, cannot maintain a suit in equity, as against the public authorities, to set aside or prevent illegal acts.\\n6 Eugene McQuillin, The Law of Municipal Corporations \\u00a7 20.19 (1998) (emphasis added).\\n. See Quinn, 303 S.C. at 407, 401 S.E.2d at 166-67 (\\\"Generally, unless an annexation ordinance is 'absolutely void', i.e., not authorized by law, private individuals may not challenge its validity.\\\") (emphasis in original).\"}"

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+"{\"id\": \"1835971\", \"name\": \"Joseph J. Pope vs. William H. Chafee\", \"name_abbreviation\": \"Pope v. Chafee\", \"decision_date\": \"1868-01\", \"docket_number\": \"\", \"first_page\": \"69\", \"last_page\": \"80\", \"citations\": \"14 Rich. Eq. 69\", \"volume\": \"35\", \"reporter\": \"South Carolina Equity Reports\", \"court\": \"South Carolina Court of Appeals\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T17:02:43.687897+00:00\", \"provenance\": \"CAP\", \"judges\": \"D\\u00fcnkin, O. J., and Inglis, A, J., concurred.\", \"parties\": \"Joseph J. Pope vs. William H. Chafee.\", \"head_matter\": \"Joseph J. Pope vs. William H. Chafee.\\nContract of Sale \\u2014 Vendor and Purchaser \\u2014 Dower\\u2014Delay\\u2014\\u2022 Auctioneer \\u2014 Agent\\u2014Confederate Treasury Notes \\u2014 Alteration.\\nA., being an officer in the Confederate army on service out of the State, by his agent, 0., offered for sale at auction, for cash, in Charleston, on the 9th November, 1864, A.\\u2019s house and lot in that city, and it was hid off by B. for $71,500. On the 21st November A. executed a conveyance of the house and Jot, and sent it to 0., who, on the 27th December, 1864, received payment in Confederate treasury notes, and delivered B. the conveyance. A. became a prisoner of war on the 20th December, 1864, and remained a prisoner until May, 1865. On bill filed to set aside the sale, held that A. was not entitled to relief in equity.\\nIf there was no contract to sell binding upon the purchaser, because no proper entry in writing had been made, that did not invalidate the executed contract afterwards made between the parties.\\nThere was no renunciation by A.\\u2019s wife of her right of dower, and O. had agreed to retain $20,0t0 of the purchase-money until dower should he renounced: Held, that this arrangement did not invalidate the sale. B. had the right to insist on indemnity, and that agreed on was not unreasonable.\\nThe delay from 9th November to 27th December, was caused by B. taking time to have the title investigated, followed by C.\\u2019s absence:\\nHeld, that the delay was not unreasonable.\\nHeld, that C. was A.\\u2019s agent to receive the purchase-money.\\nHeld, that the contract being executed was not void because the consideration was paid in Confederate treasury notes.\\n17ords which should properly have been inserted in a blank in the conveyance, were inserted after the conveyance left A.\\u2019s hands, and before it was delivered to B.: Held, that this did not invalidate the deed in equity.\\nTlie ordinance of September, 1865, which permits a party to show the true value and real character of the consideration, does not apply where the proceeding is to set aside an executed contract.\\nBEFORE LESESNE, CH\\u201e AT CHARLESTON, FEBRUARY, 1867.\\nThe decree of the Chancellor is as follows:\\nLesesne, Ch. On the 9th day of November, 1864, tbe plaintiff\\u2019s mansion on Bull street, in the city of Chavles ton, was put \\u2019up for sale at public auction by John S. Riggs, auctioneer, and set down to the defendant as the highest bidder, at seventy-one thousand five hundred dollars, ($71,500.) Terms cash. The defendant employed John Phillips, Esq., to examine the title. The records belonging to Charleston District being at that time in Columbia, under the charge of R. S. Duryea, Esq., Mr. Phillips wrote Mr. Duryea for the proper certificates as to encumbrances, having previously received from the plaintiff his muniments of title. On the 21st of.November, the plaintiff executed at Savannah a conveyance of the property to the defendant, and sent it to Charleston to Mr. Riggs. On the 29th of November, Mr. Duryea sent his certificate to Mr. Phillips, who (having previously satisfied himself as to the derivation of title) called, the day after its reception, with the defendant at Mr. Riggs\\u2019 office, for the purpose of closing the transaction. But Mr. Riggs was in Columbia, attending to his duties as a member of the Legislature, and bis clerk, Mr. Chamberlain, was unable to act for him, as there was no renunciation of dower, in the deed of conveyance by plaintiff\\u2019s wife, and be, Chamberlain, had no instructions on the subject. Chamberlain said be would write to Riggs about it, and after that the defendant and Mr. Phillips called several times at Riggs\\u2019 office to know when the business could be settled. At length the Legislature adjourned, and Mr. Riggs came to Charleston on Saturday, the 24th of December. The defendant and Mr. Phillips called at his office on the 26tb, but did not find Mm in. On tbe 27th, they called again and saw him. It was then arranged that twenty thousand dollars ($20,000) of tbe purcbase-money should be retained by Mr. Riggs, until tbe renunciation of dower by Mrs. Pope should be obtained. Thereupon, the defendant paid Riggs sixty-one thousand five hundred dollars, ($61,500,) having at his request paid ten thousand dollars ($10,000) about tbe time of tbe sale, and took a receipt in these terms: \\\"Received, Charleston, December 27th, 1864, of Mr. W. H. Chafee, the sum of seventy-one thousand five hundred dollars, ($71,500,) being the purchase-money for Major J. J. Pope\\u2019s residence, No. 46 Bull street, twenty thousand of which I hereby agree to hold, until the dower is properly renounced by Mrs. Pope,\\u201d and Mr. Riggs delivered the plaintiff\\u2019s conveyance to the defendant, who has also had possession of the premises since that time.'\\n' The prayer of the bill is that the conveyance of the plaintiff to the defendant may be set aside and declared void, that possession of the property be restored to the plaintiff) and that the defendant account to him for rents and profits of the same.\\nIt was proved at the hearing that the plaintiff, at the time of the sale, was a major in the army of the Confederate States, on duty at or near Savannah; that he became a prisoner'at the fall of that city, on the 20th of December, 1864, and continued so, until he was paroled on the 2d of May, 1865, and during all that time was in very feeble health ; that soon after being paroled, he went to Augusta; thence to Milledgeville, where his family was, and arrived in Charleston in the autumn of that year, still in very impaired health.\\nIt was also proved that though the auction sale .was conducted by the auctioneer, the entry in his sale book was not actually made by him, but by his clerk, Chamberlain, who stood by his side.\\nIt also appeared by the evidence that after sending the title to Mr. Riggs, the plaintiff wrote to him to hasten the settlement, and that on the 27th of November, having heard from him that it awaited Mr. Phillips\\u2019 approval of the title, he wrote the latter to arrange the matter with as little delay as possible. '\\u25a0 The letter adds that there could be no renunciation of dower at that time, but it \\u201c need not delay the settlement. One-sixtli may be retained, or security given for this amount, or what is better than either, (as some of the money will be invested in securities,) a sufficient amount of securities be deposited as a pledge until the renunciation can be given.\\u201d Mr. Phillips acknowledged this letter on the 1st of December, saying : \\u201cWe will settle,\\u201d or \\u201care ready to settle, except the dower.\\u201d And on the 3d of December, the plaintiff replied, and proposed that instead of withholding the amount of the dower, he should invest more than would cover it in railroad stocks, and deposit them as security for the same. He added : \\u201c If the agents who represent me will not press this matter to a conclusion, will you act so far a friendly part to me, as-to press the matter yourself to an immediate conclusion.\\u201d And Mr. Riggs testified that when the business was closed on the 27th December, Mr. Phillips suggested that the $20,000 should be invested in railroad bonds, but he, Riggs, said he would not undertake to invest in anything but Confederate bonds.\\nThere was some discrepancy in the testimony as to the conversation which attended the arrangement for retaining $20,000, to meet the claim of dower. Mr. Riggs, who was examined by the plaintiff) says that Mr. Phillips alluded to his correspondence with plaintiff, and the anxiety of the latter to have the sale closed, said they were authorized to set apart a sum to meet the dower, and suggested $20,000 as a proper sum. Mr. Chamberlain too, testified that the sum of $20,000 was suggested by Mr. Phillips. Mr. Phillips, who was examined on behalf of the defendant, testified that he asked Riggs what about the dower, and Riggs replied, I don\\u2019t know; I will retain any amount you desire; there will be no difficulty about it. Witness said, we will retain $20,000, and Riggs assented.\\nThe plaintiff testified that when the conveyance was xecuted by him, and returned to. Mr. Riggs, the words, and all other persons,\\u201d which are now in the warranty, were nottbere; the blank intended for them had not been filled. And Mr. Phillips testified that when the said deed was delivered on the 27th of December, those words were in it.\\nI have endeavored to recite, in brief, the substance of the evidence which bears on the points which were- discussed at the hearing. But the evidence itself will accompany this decree.\\nIt was contended by the plaintiff that there was no legal contract between these parties, because the entry by the auctioneer\\u2019s clerk did not bind the purchaser. But it is enough to say that, even admitting that to be so, the purchaser bound himself, by a part performance, directly after the sale, and actually executed the contract as soon as it was practicable for him to do so. Then it is objected that in executing the contract, he required security to be provided for the wife\\u2019s renunciation of dower, thereby introducing a \\u201c new term.\\u201d But he had a good right to such security, and the plaintiff admits it in his letters to Mr. Phillips.\\nAgain, it was contended that there was unreasonable delay on the part of the defendant. But, in the judgment of the Court, there is no good ground for such a charge. He was entitled to a reasonable time to examine the proper records, and ascertain whether there were encumbrances on the title, and seems to have lost no time in doing that. He was ready by the second of December, and the plaintiff made no objection then on account of delay. On the contrary, in his letter to Mr. Phillips, of the third of December, he expressed an anxious desire that the contract should be consummated. Eor the delay which took place after the second of December the defendant is clearly not responsible.\\nAgain, it was urged that the contract never was in fact performed; that Riggs\\u2019 agency for the plaintiff as auctioneer and broker did not extend to the receiving of the price, and therefore;tbe payment to him was not a legal'payment. Even admitting that to be the law of Sonth Carolina, it would be a sufficient answer, that by placing the conveyance in his hands (which contained an acknowledgment of the receipt of the price) for the purpose of completing the transaction, and by calling on the defendant, through the defendant\\u2019s solicitor, to settle with him, he made him his agent. Indeed, in the letter of December 3d, he refers to him as his agent in terms. ' \\u25a0\\nAgain, it was insisted that the deed was altered in a material particular, after it passed out of the -plaintiff\\u2019s hands, and is, therefore, void. The alteration certainly occurred before it reached the defendant\\u2019s hands. And in the interval, it was in the possession of the plaintiff\\u2019s agents. - No such alteration could have been made by the defendant, But the reason of the rule for avoiding instruments on account of such alterations is to punish the fraud of the perpetrator, and the rule, therefore, is not applicable to this case.\\nLastly, it was contended that the defendant had no right to require so large a sum as $20,000 to be set apart on account of the dower. That moreover, his solicitor knew, through plaintiff\\u2019s letters to him, that the plaintiff was not willing that any sum should be held for the purpose mentioned, but proposed that a sufficient amount should be invested in railroad bonds, and those bonds deposited as a security for the renunciation of dower; that by withholding that information, and at the same time leading Riggs to believe that he was possessed of plaintiff\\u2019s views and was carrying them out, he obtained from him the settlement which was made, and which was contrary to plaintiff\\u2019s proposal ; that the deed was an escrow in Riggs\\u2019 hands, and the delivery of it by him to the defendant being consequent on a modification of the contract, effected in the manner above mentioned, and to which the plaintiff\\u2019s assent was essential, was not a valid delivery, and the contract must be regarded as still executory.\\nIf through fraud on the part of the defendant a modification of the contract had been effected, the delivery would not have been valid. But there was certainly no fraud, and I do not think it can properly be said that there was a modification- of the contract. The contract was that plaintiff should convey his house to the defendant, and the defendant on bis part should pay the amount of his bid. It implied that the title should be free from incumbrances, including, of course, all right of dower. But when the plaintiff\\u2019s agent met the defendant for the purpose of closing the transaction, there was an outstanding right of dower, which it was not then practicable to extinguish. The 'defendant had a right to an indemnity. The plaintiff\\u2019s letters admit' it. The agent agreed that the indemnity should consist in the retention of $20,000, until the renunciation of dower should be effected. And the transaction was closed accordingly. The defendant paid the whole price the agent delivered the plaintiff\\u2019s conveyance, and gave a receipt embodying a provision for the admitted indemnity _ Surely in the contract thus closed there was no modifi-' fication of the original contract. The purchaser was legally entitled to an extinguishment of the right of dower or an indemnity against it. The latter was provided.\\nBut it is said that the sum to stand in the place of the dower should have been only one-sixth of the purchase-money, that is about $12,000 in place of $20,000, and that instead of being held in the shape of money it should have been invested. It cannot be doubted, I think, that if those points had been insisted on by Mr. Biggs, they would have been yielded; and it was the plaintiff\\u2019s part to give Biggs his instructions regarding them, if he was not willing to leave them to his discretion.\\nBut the defendant\\u2019s solicitor, it is urged, was in the possession of tbe plaintiff\\u2019s views on these points, and failed to disclose them. Before considering what they were, I will remark that it was natural to suppose the plaintiff communicated directly to his agent all such instructions as he deemed material; it would have been very unreasonable for the purchaser\\u2019s solicitor to suppose it was intended to make him the medium of communication. And it appears that, in fact, the plaintiff, about the time he wrote to Mr. Phillips, also wrote a letter to Mr. Biggs, which has been mislaid. What then did the plaintiff say on this subject in his letters to Mr. Phillips? In the letter of November 27th, he says, one sixth may be retained, or security given for that amount, or some of the money be invested and a sufficient amount of securities deposited in pledge. And in the letter of December 3d he says, he proposes to make an investment in railroad stocks, more than will cover the dower, and deposit them as security. Now it is manifest that the writer\\u2019s great object was to effect a settlement, without delay, through the instrumentality of a portion of the purchase-money, to be used as an indemnity against the dower claim. The amount to be so used was a very subordinate consideration. To say that one-sixth was his ultimatum seems to me to give a forced construction to his letters. And I do not suppose that Mr. Phillips had the least idea that he was contravening the plaintiff\\u2019s views when he suggested $20,030. The investment of the sum to be set apart was a matter of more importance. But the plaintiff did not design or expect that it was to be done by Mr. Phillips. lie or his agent was the proper person to attend to that, and the defendant interposed no objection to its being done. On the contrary, his solicitor in his presence, suggested to Mr. Biggs to invest in railroad bonds, and Biggs declined to do it. Mr. Biggs says that in. making the settlement of the 27th December, he was influenced by the belief that Mr. Phillips had authority from the plaintiff to name the terms. But there does not seem to have bee'u anything to make Mr. Phillips suppose that he was so influenced. And moreover, the settlement, so far as Mr. Phillips was concerned, was substantially in accordance with the letters to him.\\nWhat was said by the plaintiff\\u2019s counsel as to payment in Confederate notes not being a legal payment, could only apply to an executory contract. In my judgment this contract was validly executed. The loss the plaintiff has suffered is hard to be borne, but it is one of the many grievous results of a ruinous war, and not ascribable to any such cause as entitles him to the relief be asks for.\\nIt is ordered and decreed that the bill be dismissed.\\nThe complainant appealed and now moved this Court to reverse the decree on the grounds:\\n1. Because there was not any agreement between the plaintiff and defendant which made a binding aud conclusive contract enforcible on either side, and if there were, defendant has not complied with it.\\n2. Because the evidence proved that the agreement for the sale was not executed but executory.\\n3. Because the settlement by the autioneer, J. S. Biggs, was outside.of and beyond the authority he had as agent for the seller, and did not bind his principal.\\n\\u2022 4. Because the settlement was made by J. S. Biggs upon the representations of the attorney for W. H. Chafee, which were accepted by J. S. Biggs as the directions of his principal and which were not.\\n5. Because the settlement was made after and when it was known that the complainant was a prisoner of war, and that such captivity suspended if it did not terminate the agency of J. S. Riggs.\\n6. Because the deed, when received by J. S. Riggs, was an escrow, and there was not and could not be under the circumstances of the case a valid delivery thereof.\\n7. Because the pretended consideration for the purchase of the house and lot of the complainant was Confederate treasury notes, which was not a lawful consideration.\\n8. Because, according to the terms and considerations of the ordinance of the State of South Carolina, the complainant was entitled in consideration of his property, if he was held to have transferred the same to the defendant, to an enquiry as to the true value and real character of the consideration, so that regard being had to the circumstances) there should be substantial justice rendered to the complainant.\\n9. Because the Chancellor should at least not have dismissed the bill without making some provision for the payment of the amount retained against the contingent claim of dower.\\nSimons & Simons and Magrath, for complainant.\\nPhillips, Memminger, contra.\", \"word_count\": \"3834\", \"char_count\": \"22069\", \"text\": \"The opinion of the Court was delivered by\\nWabdlaw, A. J.\\nConcurring with the Chancellor in all parts of his decree, not mentioned below, this Court will notice only the objections, which the appellant has here most strenuously urged.\\nThe contract was executed, and the bill itself seems to have been framed with that understanding. The advertisement for sale intimates no exception to a perfect title, and the contingent right of dower, which the wife of a living husband has, is an incumbrance which one bound to make a perfect title must remove. (Polk vs. Sumter, 2 Strob. 380; Jeter vs. Glenn, 9 Rich. 380.) So the complainant seems to have regarded his duty under the contract. The acts and letters of the complainant furnished evidence that Riggs was his agent, authorized to deliver the deed and to secure the purchase-money. The arrangement by. which Riggs retained $20,000 as a pledge to secure the renunciation of dower, was comprehended amongst the \\\"so many ways of fair arrangement \\\" which the complainant entrusted to the discretion of Mr. Phillips and the \\\"agents who represented \\\" him. If the pledge has proved insufficient, that constitutes no ground for complaint on the part of the complainant. The deed was not delivered as an escrow. If alteration in it was made after it left the hands of complainant, that has not been done since it came to the hands of the defendant; the alteration can be imputed to no evil motive, if it was made by Riggs, and in that case being conformable to the complainant's duty, might well be supposed to have been made by his agent with his authority, (Duncan vs. Hodges, 4 McC. 239;) but if it was the unauthorized act of a stranger, it would in equity be struck out, rather than allowed to destroy the deed in the hands of an innocent grantee. (6 East, 310.)\\nThe captivity of the complainant might require special caution in guarding against duress, in reference to all acts done by him subsequent to his capture, but cannot affect power given or other act done by him when he was free.\\nThe Act of Congress, July, 1862, Statutes at Large, U. S. 591, by its sixth section makes void \\\"sales, transfers, or conveyances of property\\\" by other persons than \\\"those named as aforesaid and the complainant being a major in the army of the Confederate States, was in one of the classes \\\" named as aforesaid.\\\" If that section, or any other part of the Act, embraces transfers by him, it had regard to the seizure there contemplated, and proceedings had thereunder, not to transfers made by one of the persons meant to another of them, unconnected with the offences intended to be punished.\\nThe illegality imputed to Confederate treasury notes affects not an executed contract between persons in pari delicto, at a time when, and place where, the only government and only currency were those of belligerents engaged in hostility to the United States, if the contract was, as in this case seems to have been, 'in no way intended to aid the cause of those belligerents. (Philips vs. Hooker, Supreme Court of North Carolina, Amer. Law Register, Nov. 1867.)\\nThe ordinance of tbe convention of September, 1865, which permits the true value and attendant circumstances to be shown for affecting substantial justice, is suitable to a case where the aid of a Court is sought to enforce a contract, but not to one where a contract has been executed and power is invoked to set it aside.\\nThe motion is dismissed.\\nD\\u00fcnkin, O. J., and Inglis, A, J., concurred.\\nMotions dismissed.\"}"

sc/1920936.json

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+"{\"id\": \"1920936\", \"name\": \"SEIBELS v. NORTHERN CENTRAL RY. CO.\", \"name_abbreviation\": \"Seibels v. Northern Central Ry. Co.\", \"decision_date\": \"1908-04-21\", \"docket_number\": \"6888\", \"first_page\": \"133\", \"last_page\": \"146\", \"citations\": \"80 S.C. 133\", \"volume\": \"80\", \"reporter\": \"South Carolina Reports\", \"court\": \"Supreme Court of South Carolina\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T18:09:56.147301+00:00\", \"provenance\": \"CAP\", \"judges\": \"Mr. Justice: Woods concurs in the result on the ground that the car was not subject to attachment.\", \"parties\": \"SEIBELS v. NORTHERN CENTRAL RY. CO.\", \"head_matter\": \"6888\\nSEIBELS v. NORTHERN CENTRAL RY. CO.\\n1. Pasties \\u2014 Cabbiebs \\u2014 Passehgebs.'\\u2014In an actoin against several connecting carriers for failure to perform the contract of carriage made by one to carry the wife and husband over all, the husband and wife may join as parties plaintiff, and the allegations here construed to allege inferentially a joint contract of carriage and special delict of appellant.\\nMr. Justice Gaby dissents.\\n2. Rajxboads \\u2014 Intebstate Commebce. \\u2014 The attachment of a car belonging to a foreign railroad company in possession of a railroad company in this State in pursuance of an interstate shipment while unloaded and standing on the track in this State, but to be reloaded and returned within a reasonable time, is violative of interstate commerce.\\nMr. Justice Gaby thinks this car had already been here for a reasonable time.\\n3. Attachment. \\u2014 Service on agent of railroad in this State having in possession car of foreign railroad of notice and warrant of attach ment, taking memoranda of number and name of car and notifying yardmaster of levy, is sufficient seizure under attachment.\\n4. Ibid. \\u2014 Removal of car from place where attached and return to its foreign owner in interstate traffic does not destroy attachment lien.\\nBefore Memminger, J., Richland, January, 1907.\\nReversed.\\nAction by Edwin G. Seibels and Dorothy N. Seibels against the Northern Central Railway Company, the New York Central & Hudson River Railroad Company. From circuit order refusing to dissolve attachment, the New York Central and Hudson River Railroad Company appeals.\\nMessrs. Lyles & McMahan, for appellant,\\ncite: Car mas not subject to attachment: 63 S. C., 536; 64 L. R. A., 501, 634; 76 S. C., 473. Sheriff did not take actual possession of car, hence attachment void: 3 Ency., 340; Code of Proc., Secs. '353, 357, 358. The complaint ffails to state a cause of action: 54 S'. C., 583; 69 S. C., 330; 38 S. C., 439; 65 S. C. 1; 43 S. C., 461. Plaintiffs were improperly joined: 34 S. C., 45; Pom. Rem., Secs. 184, 189.\\nMr. Jno. T. Seibels, contra.\\nNo argument furnished Reporter.\\nApril 21, 1908.\", \"word_count\": \"4343\", \"char_count\": \"25369\", \"text\": \"The opinion of the Court was delivered by\\nMr. Justice Jones.\\nThe appeal' is from an order refusing to vacate ah attachment levied at the instance of plaintiffs. on a freight box car belonging to the defendant, New York Central & Hudson River Railroad Company, a foreign corporation, while in the yard of the Seaboard Air Tine Railw\\u00e1y Company at Columbia, S. C.\\nThe exceptions raise three questions:\\n1. Whether the complaint stated facts sufficient to constitute a cause of action against the appellant, New York Central & Hudson' River Railroad Company, so as to sustain an attachment of its property.\\n2. Whether the box car attached was at the time such an instrumentality engaged in interstate transportaioo' as to exempt it from attachment as. an interference with the interstate commerce clause of the Federal Constitution.\\n3. Whether the officer took such possession of the car as to make the lien effective.\\nAs to the first question:\\nThe complaint alleges: (1) The residence of plaintiffs in Richland County, S. C.; (2) that at the times hereinafter mentioned the defendant, Pennsylvania Railway Company, a corporation in the State of Pennsylvania, operated the Pennsylvania Railroad line between Washington, D. C., and Baltimore, Md., as a common carrier of passengers; that at same time the Northern Central Railway Company, a corporation' of the State of Maryland, operated as a common carrier of passengers the Northern Central Railroad line between Baltimore, Md., and Canandaigua, New York; that at same time the defendant, New York Central & Hudson River Railroad Company, a corporation of the State of New York, operated as common carrier of passengers the railroad line between Canandaigua and Rochester, in the State of New York.\\n3. \\\"That on the 26th day of February, 19 00', at the office of the first named corporation, in the said city of Washington, D. C., the plaintiffs purchased from it a first-class passenger ticket from the city of Washington, D. C., to Baltimore, and thence by said railroads, which were connecting lines, to Rochester, N. Y., paying to the said corporation therefor the price demanded by it for itself and said connecting roads; that at the said time and place the plaintiffs purchased of the said corporation' tickets, paying four dollars therefor, which entitled them to the exclusive use of lower berths on the sleeping car 'Chatham,' said to be owned by the Pullman Company-, a corporation of the State of lili nods, then attached to and forming a part of said Pennsylvania Railroad Company's train ready to depart for the said city of Rochester, N. Y.; that thereupon the plaintiffs were received by said company into the said car 'Chatham' \\u2022as passengers to be carried to said city of Rochester, N. Y., by said road and said connecting lines; the train of the said company whereon were the said plaintiffs then proceeded to a point on the road of the said Northern Central Railway Company between Elmira and Canandaigua, where, at 7 on the morning of the next day, being the 1st day of March;, the said train ran off the track, when a delay of several hours occurred, which was increased by said defendant's combining said* train with the one following it leaving Washington, D. C., in the early morning, so that the said combined trains, or combination train, carrying the plaintiffs, did not reach Canandaigua until late in the afternoon of that day, being due to arrive there, according to' schedule, about 5 in the morning.\\n\\\"Thereupon there was a further delay of several hours, and finally the conductor and other agents of the defendants in charge and control of the train and car, came into the sarnie and announced to the plaintiffs and other passengers that the said car would go no farther, but would thence be returned to the said city of Washington, and that all the passengers who desired to prooeed to Rochester must leave said car 'Chatham' and go into the car ahead, which was an ordinary day coach.\\n\\\"That tire said second named plaintiff was suffering with neuralgia, and was unwilling to endanger her health by the proposed change, the weather being very cold, the' wind blowing and the snow falling, and she and her husband so informed said agents of defendant, and vigorously protested against the said change of cars, or even withdrawing from said sleeper, and demanded that they be allowed to remain in said sleeper, where they were comfortable until transported to Rochester under said contract.\\n4. \\\"That the said defendants' agents and representatives notwithstanding these facts, and in direct disregard and violation of their said contracts, and in wanton, wilful and reckless disregard and violation of their rights thereunder, defiantly persisted in their announced purpose, and turned said sleeper back towards Washington, the plaintiffs refusing to leave the same for reasons aforesaid.\\n\\\"That after riding some distance in said sleeping car they were notified by the conductor of said train that, in consequence of high water, said train would probably be stopped or detained at Williamsport, Pa., and advised them to stop off at Elmira, which they did, and spent the night at a hotel, paying for lodging, meals and other expenses, and they resumed their trip to Rochester by the first train, which was about 10 next morning, and finally reached that city about 4 in the afternoon, having been due to arrive there about 5 a. m. on the previous day.\\n\\\"That by the said delay the said Edwin G. Seibels was prevented from' keeping important business engagements previously made, and was thereby detained in Rochester several days longer than would have been otherwise necessary, a part of the time idle, and at considerable expense; and at the loss of time, which, in his business, was and is very valuable, and to the injury of his business and the loss of reasonable profits and benefits therein; besides the worry, annoyance and anxiety caused by said delay.\\n\\\"That on account of the delay, expense and loss aforesaid, due to the violation of his said contracts by said defendant, the said plaintiff claims that he has sustained loss and damages, -and is entitled to damages against the defendant in the sum of one thousand ($1,000') dollars.\\n\\\"That the said Dorothy N. Seibels says that on account of the delay, expense, annoyance, worry and loss of time sustained by the said violation of her said contracts by said defendant she claims that she has sustained loss and damage and is entitled to damages against the defendant in the sum of five hundred ($500) dollars'.\\\"\\nIt is contended that the complaint does not state a cause of action (1) because it unites two plaintiffs and the cause of action of each improperly, and does not state a cause of actio-n joint as to plaintiffs; (2) because the acts alleged as injuring plaintiffs are alleged as having been done by the connecting lines of the appellant, and there is no- allegation that these connecting lines were partners of appellant, nor that appellant was in any way responsible for what they did: (3) the injury complained of was caused by the failure of the Pullman owned by the Pullman Company to continue on its journey, and it is not alleged that the said Pullman car ever came into appellant's railway line or into' possession or under its control; (4) that it'appears that plaintiffs might have ridden on appellant's train, and does not appear that they offered to become passengers or informed appellant of their demand or right to be carried by it; (5) because it appears that the injury complained of, if not done by the Pullman Company, was caused by the Northern Central Railway Company, on whose line the delay occurred and the Pullman car turned back, to which plaintiffs made their demand to be sent forward', and it does not appear that appellant bad any connection with or responsibility for said railway company; (6) because there is no allegation that Pennsylvania Railway Company had any authority to' sell tickets for appellant so as to malee it responsible for the contract made with plaintiffs.'\\nIn a motion to vacate an attachment it is competent for the Court to decide whether the affidavits show that a cause of action exists against the defendant. Section 250, Code of Civil Procedure: Williamson v. Association, 54 S. C., 592, 32 S. E., 765. The affidavit in this case made the verified complaint a part of it, hence the propriety of-noticing the allegations of the complaint with a view to ascertain if the attachment affidavit shows an existing cause of action against appellant.\\nThe question of misjoinder can' only be raised by demurrer. Code, Sec. 65, Subdivision 5; Field v. Hunt, 9 S. C., 277. Besides, under Section 135 of the Code, when a married woman is a party the husband must be joined with her in such action as this. Lowry v. Jackson, 27 S. C., 318, 3 S. E., 473. If, therefore, the complaint stated a good cause of action for either plaintiff it was proper not to vacate the attachment for misjoinder.\\nThe remaining objections to the complaint depend upon whether it connects appellant with the contract of carriage and the delict alleged. It is true that when! it is sought to make one connecting carrier liable for the default of another it is necessary to 'allege a joint contract. The mere sale of a through ticket over two or more connecting lines is not evidence of a joint contract between such roads so as to make one liable for the default of the other. Felder v. Ry., Co., 21 S. C., 35; Mathews v. Ry. Co., 38 S. C., 431, 17 S. E., 225. This complaint, however, does not seek to make appellant liable for the acts of another carrier, but for its own acts.\\nThe complaint alleged not merely the purchasing of a through ticket from Washington, D. C., to Rochester, N. Y., but that the train for which the ticket was secured was a through train to Rochester, and plaintiffs were received thereon as passengers for Rochester, and that the Pennsylvania Railroad received the price demanded for itself and the defendants for such through passage on s'aid train. Notwithstanding it is in the highest degree improbable that the Pennsylvania Railroad Company would sell a through ticket.to Rochester without some express or implied authority from the connecting carriers, perhaps the allegation in Paragraph 3 might be regarded as falling short of alleging such authority, but in Paragraph 4 the contract made with the Pennsylvania Railway Company is characterized as \\\"their contract,\\\" which may be construed as an allegation that the initial contract was defendant's contract.\\nFurthermore, it is alleged that after arrival of the train at Canandaigua, the conductor and other agents of the defendants (including appellant) in charge cmd control of the train and car came into the same and announced to plaintiffs that the car would go no farther, etc., and that passengers for Rochester must leave the car and go into- the car ahead, an ordinary day coach, and, in reckless disregard of their contract, turned the sleeper back towards Washington. Flere the delict alleged was that of appellant while in control of the car whereon plaintiffs were passengers for Rochester.\\nThe complaint tends to show a recognition of plaintiffs' right as passengers on said through train while in the appellant's control. Construing the complaint liberally, as we must, its allegations are sufficient to show an existing cause of action against appellant.\\nAs to the second question.\\nOn the motion to vacate, appellant submitted an affidavit of W. A. Duncan, agent of the Seaboard Air Dine Railway Company, stating: \\\"That freight box car number 14719, marked as belonging to the New York Central & Hudson River Railroad' Company, came into the city of Columbia into the yard of the Seaboard Air Dine Railway loaded with flour for E. A. Beall & Co., Columbia, S. C., and came under a rule and regulation by which it was to be promptly returned, and by which the Seaboard Air Dine Railway was to pay a demurrage charge of $1.00 per day for delay after a certain reasonable time agreed upon by the railroad companies, the said car being only temporarily in the possession of the Seaboard in the State of South Carolina for the purpose of conveying the carload of flour referred to and taking back another car load of freight, if such were ready for shipment within a reasonable time.\\\"\\nThe plaintiffs submitted on this point an affidavit of William S. Reamer, as follows : \\\"That he was one of the appraisers who appraised car No. 14719 of the New York Central & Hudson River Railroad Company, in the freight yards of the Seaboard Air Line Railway Company, in March, 1906. That several days previously he had seen said car on a sidetrack of said company, near the engine shed on the northern' side of said yard, which includes the old City Park. That when the appraisal was made the said car was found standing on a side track, east or southeast from the engine shed. That said car was empty and not in use, and detached from any train on each occasion that he saw it.\\\"\\nJudge Memminger dismissed the motion to' vacate the attachment without any specific finding of fact. The undisputed facts appear to be that the car, when attached, was on a side track empty, after having come into the State loaded with an interstate shipment of flour, and was there temporarily in the possession of the -Seaboard Air Line Railway Company under contract with the appellant to promptly return within a reasonable time, and to pay per diem demurrage for delay, and for the purpose of taking back another carload of freight, if such were ready for shipment within a reasonable time.\\nThe question is whether attachment of the car under such circumstances would be in violation of interstate commerce. This question was under consideration in Shore & Bro. v. Baltimore & Ohio R. R. Co., 76 S. C., 472. In that case it appeared that the oar, when attached, was an instrumentality of interstate commerce and actually in use, being loaded with interstate freight not delivered to the consignee. The Court held that to attach the car under such circumstances would be an unlawful interference with interstate commerce. In that case the Court expressed approval of the reasons upon which rest the decisions in Wall v. Norfolk & Western Ry. Co., 94 Am. St. Rep., 948, 64 L. R. A., 501, and Connery v. Quincy, etc., R. R. Co., 104 Am. St. Rep., 657, 64 L. R. A., 624.\\nIn Wall v. Railway the car, when attached, was loaded with interstate freight and in actual use, as in Shore v. Railway, but in Connery v. Railway the car, when attached, was empty, but without unreasonable delay, was awaiting a return shipment. In the Connery case the Court said: \\\"Had the car seized in this case been delayed longer than was necessary in the course of business to- return it -to the place from whence it came, or had it been diverted within the State to uses and purposes exceptional to its presence here under the demands of interstate commerce with the consent of the owning corporation, a different proposition would 'be presented; but practically it was. engaged in a transit into and from the State upon such reasonable conditions as ought not to impose upon it such property conditions and characteristics as should subject it to seizure in coming into and returning from the State for the purpose of giving jurisdiction to litigants here who otherwise would be compelled to contest their causes of action in tribunals where the property had its undoubted legal situs.\\\"\\nIn the usual course of business there must be some interval of time between the unloading and reloading of the ca\\u00edas an instrumentality of interstate commerce. To' hold a seizure during the process of unloading invalid and a seizure the moment the car became empty and awaited return shipment valid would place the protection of interstate commerce on too narrow a consideration, and would naturally tend to seriously impair, if not destroy, the use of such cars in commerce between the States, for carriers unless compelled by law would hesitate to let their cars go beyond State lines if thereby they became subject tO' attachment the moment they were unloaded. The tendency of such seizures would be to cause the breaking of bulk and transfer of freight at State lines, whereas not only public policy, but the spirit and provisions of the Federal Statutes, U. S. Rev. Stat., Sec. 5258; U. S. Comp. Stat., 1901, p. 3564, and 24 Stat. at D., Chap. 104, Sec. 7, U. S. Comp. Stat., 1901, p. 3159, require that interstate shipments shall go forward ini continuous passage from the place of shipment to the place of destination. The right to. go. to. the place of destination. and unload, without interruption, involves the right to complete the transit of the car as an instrument of interstate commerce by an uninterrupted return, to the original situs, if done within a reasonable time in the usual course of such business. The case of Southern Flour & Grain Co. v. Northern Pacific Ry. Co., 56 S. E. Rep., 742, is opposed to this view, but we think the greater weight of authority and reason is. with the view herein announced.\\nOur attachment laws must, therefore, be so construed as not to permit seizure of railroad oars of a foreign corporation under the circumstances of this case, as it would be an unlawful interference with interstate commerce.\\nAs to the third question:\\nThis point becomes immaterial, if we are right in the question just considered. However, the sheriff's return states that he seized -and took into- his possession freight box car No. 14719 of the New York Central & Hudson River Railroad Company on March 1, 1906, while in the possession of the Seaboard Air Tine Railway, and that he delivered a notice of the attachment to the agent of the Seaboard Air Tine Railway, and in his affidavit the sheriff states that he attached said car, took the nurnber thereof, hunted up the yard master and informed him that he had attached the said car, and that it must not be moved without direct order from. W. A. Duncan, agent of the Seaboard Air Dine Railway Company, to which he fully agreed; that affiant went to said agent and completed the service by serving on him a certified copy of the warrant of attachment and the notice of attachment, that actual possession of the car was taken.' as fully as it was possible under the circumstances. Believing the property attachable, the sheriff did not comply with the provisions of Section 3178, Civil Code.\\nIni attaching personal property the general rule requires that the officer shall take actual possession of the same, but from their nature and condition there are certain species of property which are absolutely incapable of manual delivery, and certain kinds of property so heavy and bulky as to be handled only ini a particular manner not available to the officer by any practical means or expenditure, that may be regarded as incapable of manual delivery to the officer. In some states provision is made by statute for the seizure of bulky or irremovable property, as in Massachusetts, where the officer is not required to take actual custody of railroad cars. Hall v. Carney, 3 N. E. Rep., 14; 4 Cyc., 656. The provisions of Section 357 of our code are broad enough by a liberal construction to cover the execution of an attachment on any property \\\"incapable of manual delivery to the sheriff\\\" by leaving with the individual holding such property a certified copy of the warrant with a notice showing the property levied on. This may well be construed to embrace such a bulky and unmanageable thing as a freight car, which, while it may be deliverable to another carrier having track facilities, cannot be practically delivered to the officer having no such facilities, unless at such an' enormous expenditure as to render such seizure useless. To require the sheriff to chain the car to the track or otherwise physically obstruct its removal would often have the effect of preventing the railroad company from the necessary use of its track, a hardship to the carrier which, if possible, should be avoided. In such perplexing circumstances it is reasonable to hold that the method of seizure adopted by the sheriff was proper and legal.\\nThe agent of the Seaboard Air Tine Railway Company made affidavit that in the shifting of trains it was necessary to move said freight car; that it was finally removed from its freight yard and went into' the possession of the Southern Railway Company to be transported back to the owner in New York in the usual course of business. Such conduct could not of itself destroy the lien of an attachment levied as this was, but as the property was not attachable no effective lien existed.\\nIt is the judgment of this Court that the order of the Circuit Court be reversed.\\nMr. Justice: Woods concurs in the result on the ground that the car was not subject to attachment.\"}"

sc/1922967.json

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+"{\"id\": \"1922967\", \"name\": \"THOMPSON v. SEABOARD AIR LINE RY.\", \"name_abbreviation\": \"Thompson v. Seaboard Air Line Ry.\", \"decision_date\": \"1908-09-17\", \"docket_number\": \"7020\", \"first_page\": \"333\", \"last_page\": \"340\", \"citations\": \"81 S.C. 329\", \"volume\": \"81\", \"reporter\": \"South Carolina Reports\", \"court\": \"Supreme Court of South Carolina\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T23:35:57.882144+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"THOMPSON v. SEABOARD AIR LINE RY.\", \"head_matter\": \"7020\\nTHOMPSON v. SEABOARD AIR LINE RY.\\n1. Railroads \\u2014 Negligence.\\u2014No evidence in this case from which negligence could be reasonably inferred in engineer\\u2019s failing to stop his train before it struck a man on the track signalling him.\\n2. Ibid. \\u2014 -Ibid.\\u2014Issues\\u2014Bkidge\\u2014Proximate Cause. \\u2014 That a railroad company builds a bridge on a highway crossing the railroad on its right of way for its own convenience, and builds and maintains it too short by reason of which a team is held fast on the track because the wheel of the wagon missed the end of the bridge, and that the driver is killed on the track by the engine a short distance from the crossing where he had gone to signal the train, is sufficient to sustain the finding by the jury that the negligence of the company in building and maintaining a defective bridge was the proximate cause of the death of the driver.\\n3. Contributory Negligence. \\u2014 It is not contributory negligence for one charged with the protection of property to take a manifest risk to save it unless the risk was wanton or unreasonable. The test is whether a reasonably prudent man in the same emergency would have assumed the peril.\\n4. Railroads \\u2014 Signals\\u2014Issues.\\u2014Whether the failure to give the crossing signal by an engineer contributed to the death of the driver of a team, killed by the engine one hundred feet from a crossing, where he had gone to signal the train to stop in order to prevent it from striking his team, held on the crossing by a defective bridge, is for the jury.\\n5. Ibid. \\u2014 Crossings\\u2014Bridges.\\u2014Issue of punitive damages properly sent to jury here because the railroad company was frequently notified by the county authorities of the dangerous condition of the bridge and requested to repair it.\\n6. Ibid. \\u2014 Trespasser.\\u2014One going on the track of a railroad to signal a train to stop to avert danger of loss of property or life is not a trespasser.\\nBefore Wilson, J., Lexington, January, 1908.\\nAffirmed.\\nAction by J. M. Thompson, administrator of Charles A. Thompson, against Seaboard Air Line Railway. From judgment for plaintiff, defendant appeals..\\nMessrs. Lyles & McMahan and B\\u00f1rd & Dreher, for appellant.\\nMessrs. G. T. Graham and Nelson & Nelson, contra.\\nSeptember 17, 1908.\", \"word_count\": \"2609\", \"char_count\": \"14514\", \"text\": \"The opinion of the Court was delivered by\\nMr. Justice Woods.\\nCharles A. Thompson, early in the night of S3d October, 1905, was driving a wagon and pair of mules -along the Two-Notch road, in Richland county. The road turns at a sharp angle to cross the track of the defendant, Seaboard Air Line Railway, and at the crossing there is a shallow ditch and a bridge on each side of the track. One of the front wheels of the wagon missed the bridge and went into the ditch, and the mules were thus held on the railroad track. The defendant's fast train, known as the Florida Limited, was approaching. Thompson left his team and ran, probably about a hundred feet, towards the train, waving his hat in the effort to stop it. The train did not stop in time, and struck and killed both Thompson and the mules. J. H. Thompson, the owner of the mules, recovered against the defendant damages for their loss, and the judgment of the Court of Common Pleas was affirmed by this Court in Thompson v. Seaboard Air Line Ry., 78 S. C., 384. As administrator of Charles A. Thompson's estate, J. M. Thompson brought this action, alleging the death of his brother to have been due to the negligent, reckless, wanton and wilful conduct of the defendant, and recovered a judgment for $3,000. Defendant appeals, charging error in the refusal to grant a nonsuit, in instructions to the jury, and in refusing to- grant a new trial.\\nThe first question raised was whether there was any evidence of negligence by the defendant constituting a proximate cause of the death of Thompson. Some of the plaintiff's witnesses testified that by actual measurement, in approaching the crossing, the train was on a straight track for fivehundred and eighty-three yards. The engine was equipped with an electric headlight, and there was some evidence from W. H. Tiller, an engineer sworn in behalf of plaintiff, that, under favorable conditions, such a headlight would enable the engineer to see an objeot on the track two hundred and fifty to three hundred yards; but this was a misty night, and the witness said on such a night \\\"the sweat from the glass would stop your reflection and light to a certain extent.\\\" Although testifying that such a train as this could be stopped in about one hundred to one hundred and twenty-five yards, he said that the distance would be greater on a wet track or down grade. According to plaintiff's evidence, the fatality occurred on a down grade, and the misty night, no doubt, made a damp or wet track. The train was stopped just beyond the crossing. M. A. Drawdy testified he was standing on the side of the track and saw: the headlight of the approaching train and a mam running along the track towards it, waving his hat as if to sign- it down; that the train passed! him and he did not see it strike deceased; that the speed was not slackened until about the time it struck the mules. The impression of this witness as to the precise time the speed of the cars was slackened was necessarily vague, and hence his evidence is indefinite. Of course, the testimony of the engineer of the -train that he was on the watch, saw the deceased signalling, and immediately used every effort to stop the train, is to be left out of view in deciding whether the above facts prove negligence in failing to use proper efforts to stop the train. But negligence is to be .proved, not assumed, and we do not think, if all the plaintiff's- evidence on the point be taken as true, it would tend to establish in the mind of a reasonable juror the conclusion that the engineer was negligent in failing to see the deceased before he did, or in failing to stop the train in time. If this had been the only proof of negligence, the defendant would have been entitled to a nonsuit, but -other charges of negligence are to be considered.\\nThe bridge on which the wagon- and mules were caught was built by the railroad company on its roadbed, for its own purposes-; hence there can be no doubt of the duty of the railroad -company to keep it in order for the safety of the travelling public. There was evidence that the bridge, though at a sharp turn in the road, was only -ten to twelve feet in- width, whereas safety to vehicles required it should be twenty feet, the same width as the highway. The wheel tracks of the wagon indicated that if the bridge had been of the requisite width the wheels would not have left the bridge, the wagon would not have been- caught, and the deceased, of course, would have passed on in safety. From these facts it is very clear there was evidence of defendant's negligence resulting in the mules and wagon being caught. But it is insisted the Court should have held, 'as a matter of law, this negligence could not be the proximate cause of the death of Thompson. The mules and wagon were in a place of utmost peril.' Not only so, but their position on the track was such as to imperil the safety of defendant's approaching train and the passengers thereon. All this was due to defendant's negligence in the construction of the bridge. Thompson lost his life in the eff ort to stop the train and avert the threatened loss of other lives and destruction of the property in his charge. That effort was immediate and direct, and was the only one he could have made. He was alone, the train was approaching, and his pressing obligation was to try to communicate to the engineer the danger. This right and duty to signal the train, according to the evidence, was forced on him by defendant's negligence. Therefore, if the jury believed this evidence, it was certainly sufficient to sustain the conclusion that defendant's negligence was a proximate cause of the peril assumed by Thompson and of his death. This conclusion is fully sustained by the very analogous cases of Cooper v. Richland Co., 76 S. C., 202, 56 S. E., 958, 10' R. R. A. (N. S.), 799, and Snipes v. A. C. L. Ry., 76 S. C., 207, 56 S. E., 959. The defendant submits, however, that even if the defendant's negligence was a proximate cause of Thompson's death, yet he knew of the approach of the train and was guilty of contributory negligence in not getting off the track 'before the train reached him. Binder the circumstances, the Court could not have said that it was negligence per se for Thompson' to go on the track for the purpose of stopping the train. It is equally clear, it would be very harsh judgment to say the fact that he stayed on the track too long conclusively shows he was negligent in not getting off in time to- escape injury. If the evidence is credible, the emergency was brought upon him by the defendant. He was absorbed in the effort to stop the train, and, no doubt, excited to the degree of consternation by the emergency. He was facing a powerful electric headlight which, it is reasonable to- suppose, blinded him to the extent that he erred1 in his estimate of the distance of the train from1 him until it was too late to' escape. The rule was established in this State in 1840, by the case of Ivy v. Wilson, Cheves, 74, that it is not contributory negligence per se for one who owes the duty to protect property to' take a manifest risk to save it, unless the risk was wanton and unreasonable; and that the exposure by a person 'so situated is not to be presumed to\\u00a1 be wanton or unreasonable exposure to unnecessary danger. The test is, whether a reasonably prudent man, in the same exigency, would have assumed the peril. Wilson v. Ivy, supra; Wasmer v. Delaware, etc., R. R. Co., 80 N. Y., 313; 36 Am. Rep., 608; 39 Cyc., 534. The exceptions on this point are overruled.\\nThere was direct evidence of the violation of the signal statute; that is, of a failure to' sound the whistle five hundred yards before reaching the crossing; but the defendant contends that Thompson was not within the protection of the statute, because he was about one hundred feet from the crossing when struck by the train, and, therefore, the Circuit Judge should not have submitted to the jury the issue of negligence under the signal statute. Referring to the signal statute, Chief Justice Simpson, for the Court, says, in Neely v. C. C. & A. R. R. Co., 33 S. C., 136, 139, 11 S. E., 636: \\\"Now, there can be no doubt but that the object of these sections was to prevent collisions which might occur between persons attempting to cross the track of the railroad and the locomotive and cars approaching the crossing at the same moment, and the provisions of the act did not include, nor was the act intended to include, injuries inflicted upon bystanders not intending to cross, or upon cattle that happened to be killed or injured pasturing nearby, but not upon the crossing or using it to pass from the one side to the other.\\\" This rule has been followed in this State and is in accord with almost all precedents in other States. Hale v. R. R. Co., 34 S. C., 292, 13 S. E., 537; Fletcher v. R. R. Co., 57 S. C., 205, 35 S. E., 513; Sims v. Ry. Co., 59 S. C., 248, 37 S. E., 836; Hutto v. R. R. Co., 61 S. C., 495, 39 S. E., 710; Ringstaff v. Ry. Co., 64 S. C., 546, 43 S. E., 22; Fowles v. Ry. Co., 73 S. C., 306, 53 S. E., 534. But we can find no case where the application of the statute to a case like this has been considered. Blere the circumstances would warrant the inferences that Thompson's team had been' caught on the track a very few moments before the approach of the train, and that if he had heard signals he wo-uldl not have attempted to cross before it passed. It was, therefore, for the jury to isay whether a failure to give the signals was negligence, contributing to bring the deceased into the predicament in which he found himself. The whole trouble arose at the crossing^ to a traveller exercising his right to cross. If he would not have gotten into the predicament but for defendant's failure toi give the signal, then all reasonable efforts to extricate himself from it may well be said to have been made necessary by defendant's negligent failure to signal. If such efforts had been made by deceased while standing on the crossing, there can be no doubt that the case would have fallen under the signal statute. It would be a very technical distinction to hold that when his team was thus caught on the crossing, and Thompson extended his efforts; to prevent a catastrophe a hundred feet from it, he lost all benefit of the statutory protection provided for persons passing over a crossing on the highway.\\nWithout extended analysis of the cases on the subject, it is sufficient to say none of them in this State, or elsewhere, are like this case, and there is no principle laid down in them which requires such a technical distinction as is here contended for by the appellant. The request to charge on this subject was as follows: \\\"Failure to ring the bell or blow the whistle of a locomotive approaching a crossing is not negligence as to a person on the track a little distance from the crossing.\\\" After reading it to the jury, the Circuit Judge said: \\\"Generally speaking that may be, but the circumstances may be such (and you are to be judges- of the circumstances in -each particular case) where it might be negligence; I charge you that, as a general proposition, bu-t I say there may be circumstances in each case where the jury have the right to conclude it would be negligence under certain circumstances.\\\" For the reasons stated, we think this instruction was not error as applied to this- case.\\nThe issue as to punitive damages was properly submitted to the jury. There was evidence tending to show the crossing was obviously, dangerous on account of the narrowness of the bridge, and that the county authorities had several times warned the agents of the railroad company of the danger, and requested that the bridge be made safe; and that the defendant, nevertheless, failed to take any steps to perform the duty required of it by law.\\nThe consent of the railroad company that one in the situation- of Thompson should enter -on its trade to stop its train by signal, and thus avert the danger of loss of valuable property or of human life, will be presumed. The Circuit Court, therefore, did not err in refusing to charge the law applicable to trespassers on the railroad property.\\nThe judgment of this Court is that the judgment of the Circuit Court be affirmed.\"}"

sc/1933053.json

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+"{\"id\": \"1933053\", \"name\": \"CHRISTIAN v. AUGUSTA AND AIKEN RY. CO.\", \"name_abbreviation\": \"Christian v. Augusta & Aiken Ry. Co.\", \"decision_date\": \"1910-10-14\", \"docket_number\": \"7684\", \"first_page\": \"123\", \"last_page\": \"127\", \"citations\": \"87 S.C. 123\", \"volume\": \"87\", \"reporter\": \"South Carolina Reports\", \"court\": \"Supreme Court of South Carolina\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T22:04:50.075157+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"CHRISTIAN v. AUGUSTA AND AIKEN RY. CO.\", \"head_matter\": \"7684\\nCHRISTIAN v. AUGUSTA AND AIKEN RY. CO.\\nElectric Cars \\u2014 Carrier\\u2014Wilfulness\\u2014Passenger.\\u2014Under the evidence here tending to show a passenger standing at the station of an electric car motioned it to stop but it ran on about seventy-five yards beyond and then stopped for one and a half minutes the servants inviting the passenger to come to and board the car, but they would not come back to the station for him, verdict based on wilfulness sustained.\\nBefore Gage J. Aiken October 1909.\\nAffirmed.\\nAction by W. H. Christian against Augusta and Aiken Ry. Co. in Court of Magistrate E. J. Craig. From circuit order sustaining judgment of magistrate, defendant appeals.\\nMessrs. Boykin Wright, Geo: T. Jackson and J. B. Salley for appellant,\\ncite: Plaintiff could have avoided'consequences by ordinary care: 15 Cen. Dig. 1775, o. q. v., 12 S. E. 1061; 1 Thomp. on Neg. 215, 217, 262; 66 S. E. 964. No evidence of zuilfulness: 60 S. C. 67; 1 Thomp. Neg. 265; 79 S. C. 209. No actual damages on which to base punitive: 6 Thomp. Neg. sec. 7172; 65 S. C. 1; 60 S. C. 67; 77 S. C. 60.\\nMessrs. Hendersons contra,\\ncite: Plaintiff not required to act: 35 S. C. 483; 38 S. C. 487; 2 Deu. 625; 13 Cyc. 75; 8 Ency. 606. Case is based solely on zuilfulness: 70 S. C. 418; 77 S.'C. 56; 65 S. C. 326.\\nOctober 14, 1910.\", \"word_count\": \"1359\", \"char_count\": \"7235\", \"text\": \"The opinion of the Court was delivered by\\nMr. Justice Woods.\\nThe plaintiff recovered a judgment of one hundred dollars in a magistrate's court for alleged injuries resulting to him from the alleged negligent, wilful and wanton failure and refusal of the defendant to stop its electric passenger car in response to his signals at its regular stopping place at Langley, one of the stations on its trolley line from Augusta, Georgia, to Aiken, South Carolina, and for defendant's alleged negligent, wilful and wanton failure and refusal to run the car back to' the station to take him on there, after having stopped it about seventy-five yards beyond the station. The appeal is from the judgment of the Circuit Court affirming the judgment of the magistrate.\\nWe cannot help thinking that but for the lack of a spirit of courtesy and accommodation on the part of the plaintiff as well as on the part of the defendant's conductor and motorman, the litigation would not have arisen. The testimony of the plaintiff was to the effect that he signalled the car, which was equipped with a powerful electric headlight, plainly several times and continued his signals until the car came up to the station, and that it nevertheless ran by and stopped about seventy-five yards beyond the station. The plaintiff gives this account of what then occurred:\\n\\\"The car did not stop at the station- nor slacken up until it got past the station. Then it ran nearly to the Athletic Hall, \\u2014 about seventy-five yards \\u2014 and stopped. The motorman hollowed to me to come on if I wanted to go on that car. I hollowed back at him that he must come back to the station for me, that if I had wanted -them to stop anywhere except at the station, they would not have done it, and they must come back to the station for me. It is a fact that they won't stop anywhere except at their stations for pas-sengers even though you flag them at other places. The motorman hollowed back to me that he would not come back, and I refused to go to the car. The motorman then hollowed to the conductor to give him two bells, which is the signal to go ahead. The conductor gave the signal and the car went on, leaving me there. This was the last car going to Clear-water that night and I had to walk a distance of four or five miles. This walk and delay tired me out. I did not get to bed until about three o'clock and was'unfit for work the next day. I did not work because I was^eeling so badly. I was greatly annoyed and put out at being'left.\\\"\\nThe account of the motorman was as follows: \\\"I was at my post of duty at the front platform. As we approached Langley I saw no one on the track at the station, but when the car got just about to the station I saw someone back behind some trees at the station. I could not see this man before we got to the station, because he was cut off from my 'view by the trees. As so-on as I saw him I stopped the car. When the car stopped it was about seventy-five yards below the station. I hollowed back at the person who was at the station to come on if be wanted to go on this car. Using an oath, he hollowed back to me that he did not propose to come, that I must come back for him I said that I'd give him a minute and a half to get on the car. He continued to curse and said he wouldn't come. We waited for a minute and a half, and the conductor gave me the signal to go ahead, and we started the car and went oa\\\"\\nIt was agreed by counsel that the testimony of the conductor would be the same as that of the motorman, and that two other witnesses would testify that they \\\"heard the motorman say to Christian, 'I will give you one and a half minutes to get here,' and Christian said, 'I am not, and won't walk a damn step, and come back to the station.' The car waited long enough for him to have walked .to the car and gotten on.\\\" It was further agreed that the ground between the car and the plaintiff was level and free from obstruction.\\nThe fact that the car was stopped to allow the plaintiff to get on tends very strongly to negative the charge that the motorman saw the signal and wilfully disregarded it; and it would be difficult to support the judgment for punitive damages on that ground. There is no doubt, however, that the defendant had itself fixed a station at which it required all persons wishing to take the cars to stand, and that in this instance its agents intentionally refused to back the car seventy-five yards to enable the plaintiff to get on there.. It is true that the Courts must look at such matters reasonably, and that they will not do the absurd thing of requiring cars to stop at an exact spot, when no inconvenience or 'hardship is inflicted on the person intending to enter the car. ITow much variation from exactness in this respect is allowable without a violation of duty, depends on circumstances, and is usually an issue of fact to be determined by the jury or by the tribunal on which the law imposes the power and duty to decide the facts. In this case the judgment of the Circuit' Court must be regarded as an adjudication that stopping seventy-five yards beyond the station was not a substantial compliance with the duty of the defendant to stop at its station, and that the defendant's agent had no right to require the plaintiff to go that distance to reach the car.\\nIn view of the comparative ease with which electric cars may be moved and controlled, it cannot be said that there was no support in the evidence for the finding of the Court that the defendant's agents in refusing to bring the car back to the station wilfully violated the right of the pliantiff to board the car at the station.\\nThe case does not fall within the reasoning and the principles on which either of the cases of Trapp v. Southern Ry 72 S. C. 343, 51 S. E. 919 or Ussery v. Augusta Aiken Ry. 79 S. C. 209, 60 S. E. 527 was decided.\\nThe judgment of this Court is that the judgment of Che Circuit Court be affirmed.\"}"

sc/1933137.json

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+"{\"id\": \"1933137\", \"name\": \"MILLS v. ATLANTIC COAST LINE R. R.\", \"name_abbreviation\": \"Mills v. Atlantic Coast Line R. R.\", \"decision_date\": \"1910-10-21\", \"docket_number\": \"7691\", \"first_page\": \"152\", \"last_page\": \"158\", \"citations\": \"87 S.C. 152\", \"volume\": \"87\", \"reporter\": \"South Carolina Reports\", \"court\": \"Supreme Court of South Carolina\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T22:04:50.075157+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"MILLS v. ATLANTIC COAST LINE R. R.\", \"head_matter\": \"7691\\nMILLS v. ATLANTIC COAST LINE R. R.\\nNew Trials. \\u2014 A motion for a new trial on after-discovered evidence is addressed to the discretion of the Circuit Court and the refusal of such motion will not be reviewed unless it appears that ther\\u00e9 was abuse of discretion or that the' exercise of discretion was controlled by some error of law. Principles applying in motions for new trials on after-discovered evidence stated.\\nBefore De\\u00edVorE J. Charleston April 1909.\\nAffirmed.\\nMotion to dismiss appeal from order refusing_ new trial on after-discovered evidence by defendant in L. A. Mills against Atlantic Coast Line R. R. Co. The Circuit order refusing the motion is:\\n\\u201cThis was a motion 'heard by me at this April term of Court, 1909, for the above -county for a new trial in the above stated case, upon after-discovered evidence. It appears that the case was tried once by Judge Gage and a jury, and resulted in a verdict for plaintiff for sixteen thousand dollars, after which, upon motion for a new trial, on the minutes of this Court, Judge Gage granted same. Thereafter the case was again tried by Judge Hydrick and a juy, at March term of Court, 1908, for the above county, and resulted in a verdict for plaintiff for eighteen thousand dollars: whereupon motion for a new trial was again made, and refused by Judge Hydrick. The case is now pending- in the Supreme Court upon appeal. The after-discovered evidence upon which this motion is made, is based upon, as admitted in argument of counsel, and as appears from the record used before me, an affidavit of a detective employed by the defendant for the purpose of keeping watch upon the plaintiff, and making report of his conduct and actions since the last trial. In fact the detective states in the affidavit, \\u2018it correctly sets out the conduct and actions of Mr. Mills during the period beginning on the 13th of November and ending on the 31st day of December, 1908.\\u2019 The object of the evidence set forth and contained in this affidavit, signed by J. N. Cook, is for the purpose, as I understand its import, to show that the plaintiff could not have been as seriously injured as claimed in his complaint and as appeared from the evidence in the case when tried. Now,, the evidence set forth in the affidavit, it will be sufficient to state (see affidavit), is of such a character and nature as will form the basis and foundation for the introduction of expert testimony in case a new trial is granted, for the purpose of explaining what the evidence contained in the affidavit means in so far as the same relates to and concerns the serious injury alleged and claimed by the plaintiff to have been inflicted upon him by the defendant. While I am to assume for the purpose of this motion that the after-discovered evidence is true, or rather I am not called upon to pass upon its truthfulness, yet I feel it my duty to take into consideration that the expert testimony would be submitted on behalf of the plaintiff as well as the defendant, and in, rebuttal to that of defendant, for the purpose of showing and explaining the conduct and actions of plaintiff in so far as same relates to and concerns the seriousness of plaintiff\\u2019s injury. It is well to state that there are several other affidavits which were submitted, but all in substance relate to and concern the conduct and actions of plaintiff since the last trial. Without taking into consideration, in passing upon this motion, that there may be some doubt as to whether or not the evidence can be regarded as after-discovered, on account of the fact that it was not in existence at the time of the former trial, but has come into existence, I cannot see my way clear 'to grant a new trial in this case. The rule is, and ought to be, that the after-discovered evidence should be such as would, not possibly, but probably change the result of the last trial, or former trial. The evidence before me does not so impress me. Indeed, I do not think it would probably change the result.\\n\\u201cThe reason of the rule is plain and clear. The judgments of the Courts should'be looked upon with that degree of solemnity and respect which they must always command from a people and the public generally. They must have a stability 'and fixedness that will insure confidence and safety to the public, hence if they are to be lightly regarded, and vacated unless upon ample and sufficient reason, based upon strong grounds, they will be regarded as uncertain and vacillating. There are, no doubt, cases in which the solemn determinations, judgments, of the 'Courts should be vacated, but this should not be done unless for the soundest and clearest reasons, otherwise under the law, as it exists in this State at present, the Circuit Judges will be called upon to try, so to speak, upon affidavits containing after-discovered evidence, every hotly contested case of any importance.\\n\\u201cThe evidence in this case not being of such a character and nature, and so convincing as to enable me to- say that it would probably change the result of the last trial, I am therefore forced to refuse the motion for a new trial.\\n\\u201cIt is, therefore, ordered that said new trial be, and the same is hereby, refused.\\u201d\\nFrom this order the defendant appeals on the following exceptions:\\nFirst. \\u201cBecause the presiding Judge erred in holding as follows: \\u2018Now, the evidence set out in the affidavits, it will be sufficient to state (see affidavits), is of such a character and nature as will form the 'basis and foundation for the introduction of expert testimony, in case a new trial is granted for the purpose of explaining what the evidence contained in the affidavits means, in so fajas the sa\\u00edne relates to and concerns the serious injury alleged and claimed by the plaintiff to have been inflicted upon him by the defendant,\\u2019 the eri'or assigned being that the evidence set out in the affidavits being not only such as would form the basis and foundation for the introduction of expert testimony, but also to show the actual physical condition of the plaintiff, who had claimed to be permanently injured, suc-h testimony was in itself material to the issues raised by the pleadings without reference to any expert testimony that might thereafter be offered on the trial of the case, as to the permanent physical disability of the plaintiff.\\nSecond. \\u201cBecause the presiding Judge erred in holding, \\u2018The rule is and ought to be that the after-discovered evidence should be such as would, not possibly but probably, change the result of the last trial, or former trial; the evidence before me does not so impress me. Indeed, I do not think it would probably change the result.\\u2019 * * * And also, \\u2018The evidence in this case not being of such a character and nature, and so convincing as to enable me to say it would probably change the result of the last trial, I am, therefore, forced to refuse the motion for a new trial;\\u2019 the error assigned as to both of the above holdings being, that the questions before the Court upon the motion for a new trial upon the ground of after-discovered evidence were, First, whether such evidence was discovered after the trial; second, whether such evidence was material to the issue raised by the pleadings, and third, whether such evidence could have been discovered before the trial by the defendant by the exercise of due diligence, and that under the pinciples decided and rulings laid down by the Supreme Court, if these questions were resolved in the affirmative, then the new trial upon the ground stated ought to be ganted.\\nThird. \\u201cBecause the presiding Judge erred in not holding that the newly discovered evidence would affect the result.\\u201d\\nMessrs. Legare, Holman and Baker for the motion.\\nMessrs. Willcox & Willcox, W. Huger Fitssimons, T. Moultrie Morde'cai and Henry B. Davis contra.\\nOctober 21, 1910.\", \"word_count\": \"2221\", \"char_count\": \"12542\", \"text\": \"The opinion of the Court was delivered by\\nMr. Chief Justice Jones.\\nThis is a motion to dismiss an appeal from an order of Judge DeVore dated April 17, 1909 refusing motion for a new trial on after-discovered evidence.\\nDuring the pendency of the appeal from the judgment on verdict the defendant, appellant moved this Court for a suspension of the appeal that motion for new trial on after-discovered evidence could be made in the Circuit Court, and this Court, under the authority of State v. Lee, 80 S. C., 367, 61 S. E. 657, decided that the Circuit Court had jurisdiction to entertain such a motion notwithstanding the pendency of an appeal, 82 S. C. 126, and that the proper practice was to make such motion in the Circuit Court.\\nThereupon the motion was made before Judge DeVore on Circuit and resulted in the order dismissing the motion, upon the ground that the evidence submitted was- not of such a nature as would probably change the result, should a new trial be ordered. The defendant gave notice of appeal from said order, which order with the exceptions thereto are herewith reported for such reference as the disposition of this motion may require.\\nThe motion to dismiss is upon the following grounds:\\n1. Because no appeal will lie from an order refusing a motion for a new trial on the ground of after-discovered evidence unless there has been an abuse of discretion, and none such has been shown to exist in this case by the exceptions and assignments of error.\\n2. That it appears from the decree of Judge DeVore that he refused said motion upon the facts, in that, he was not satisfied that the showing made by the defendant would justify the Court in granting a new trial on the ground of after-discovered evidence based upon the affidavit of' a detective, who subsequent to the trial, had watched the actions of the plaintiff; and no appeal will lie from such finding.\\n3. Because no appeal will lie from the order of Judge DeVore in this case, as the same involves a matter of discretion, which will not be reviewed in this Court in the absence of abuse of discretion.\\nThe rule is well settled that a motion for a new trial on after-discovered evidence is addressed to the discretion of the Circuit Court and the refusal of such motion will not be reviewed unless it appears that there was abuse of discretion, or that the exercise of discretion was controlled by some error of law. State v. David, 14 S. C. 433; State v. Workman, 15 S. C. 547; Sams v. Hoover, 33 S. C. 404, 12 S. E. 8; Seegers v. McCreery, 41 S. C. 549, 19 S. E. 696; Peeples v. Werner & Co., 51 S. C. 405, 29 S. E. 659.\\nSuch a motion must generally depend upon matters of fact, over which this Court has no jurisdiction, in actions at law. Neither the order of Judge DeVore nor the exceptions thereto, which have been brought to our attention in this motion, show any abuse of discretion or error of law controlling the exercise of discretion.\\nIn Sams v. Hoover, 33 S. C. 403, 13 S. E. 8, the Court declared: \\\"To justify the granting of a motion for a new trial upon the ground of after-discovered evidence, the moving party must establish to the satisfaction of the Court before which the motion is made at least three facts: 1. That the proposed new evidence was discovered after the former trial. 3. That it could not by the use of due diligence have been discovered in time to be offered in the former trial. 3. That it is material.\\\"\\nThis does not mean that such a showing entitles one as matter of rig'ht to a new trial, but that such facts are necessary to invoke the exercise of the Court's discretion. .Notwithstanding such a showing the Court may properly decline to grant a new trial, for it may not appear that the ends of justice will be better promoted by a new trial.\\nWhile the evidence may be such as would be admissible on another trial and may be material, it may not be regarded by the Court as sufficiently material to warrant a belief that the result would be different.\\nThat the result may possibly be different on another trial is not the test, for in cases of conflict of testimony there is always the possibility of a different result. It should at least appear to the Court that the newly-discovered testimony would probably change the result. Wardlaw v. Oil Mill, 74 S. C. 376, 54 S. E. 658.\\nIn State v. David, 14 S. C. 432, the Court declared: \\\"There can be no doubt that motions of this sort should be received with the utmost caution, because as it is said by -a learned Judge, there are but few cases tried in which something new may not be hunted up and also because it tends to perjury.\\\"\\nAs the record does not show an appealable or reviewable case the motion is granted and the appeal dismissed.\"}"

sc/1942082.json

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+"{\"id\": \"1942082\", \"name\": \"STONE v. CITY OF FLORENCE\", \"name_abbreviation\": \"Stone v. City of Florence\", \"decision_date\": \"1913-04-22\", \"docket_number\": \"8530\", \"first_page\": \"375\", \"last_page\": \"378\", \"citations\": \"94 S.C. 375\", \"volume\": \"94\", \"reporter\": \"South Carolina Reports\", \"court\": \"Supreme Court of South Carolina\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T20:54:11.739354+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STONE v. CITY OF FLORENCE.\", \"head_matter\": \"8530\\nSTONE v. CITY OF FLORENCE.\\n1. Infant \\u2014 Negligence\\u2014Presumptions.\\u2014Proof that a child five years old fell into a ditch in a street left unguarded in which a lot of trash had been dumped and set on fire, by presumption, proves lhat his injury-was not brought about by his own negligent act.\\n2. Cities and Towns \\u2014 Negligence.\\u2014A municipal corporation is liable for injury to one lawfully using a street by falling in a ditch negligently unguarded, whether the ditch be on the extreme edge of the street or in it.\\n3. Ibid. \\u2014 From evidence' that a driver of a city cart dumped trash into an open ditch in a street and set fire to it, which burned for a week, it may be inferred the city authorized the act.\\nBefore DeVore, J., Florence, Spring term, 1912.\\nAffirmed.\\nAction by Francis Stone, guardian of E. J. Stone, against City of Florence. Defendant appeals.\\nMessrs. Henry B. Davis and D. Gordon Baker, for appellant, cite:\\nPlaintiff must disprove contributory negligence: SO S. C. 116; 89 S. C. 511; 58 S. C. 417; 40 S. C. 342; 73 S. C. 254; 76 S. C. 203; 87 S. C. 359; 91 S. C. 384; 165 U. S. 150. Defendant is not liable for defects in parallel drains: 43 S. C. 398; 83 S. C. 509; 57 S. C. 302; 40 S. C. 342; 73 S. C. 254; 58 S. C. 413; 56 S. C. 448; 70 S. C. 142; 66 S. C. 448; 4 Dill., sec. 1707; 86 Ed. 297; 55 Am. R. 687; 45 Am. R. 52; 41 Am. St. R. 69; 73 N. E. 481; 131 N. Y. S. 1032; 81 At. 958; 28 Cyc. 1363; 45 Am. St. R. 853; 89 S. C. 511; 38 S. C. 282; 40 S. C. 390. No proof that city authorised the fire to be set. Dill., sec. 1717; 28 Cyc. 1358, 1394, 1397; Elliott, sec. 629; 22 S. E. 709; 70 R. R. A. 841; Sher. & Red. on Neg. 148; 26 Am. St. R. 221, 462; 48 S. E. 323; 32 S. E. 675; 88 S. C. 553.\\nMessrs. Ragsdale & Whiting, contra, cite:\\nInfant cannot be charged zvith negligence: 53 Am. Dec. 65; 17 R. R. A. 733; 25 S. C. 24; 76 S. C. 539; 29 Cyc. 537-8; 66 S. C. 47; 40 S. C. 342. Unguarded excavation near street comes within inhibition: 89 S. C. 511; 25 Am. R. 378; 121 S. W. 664; 41 N. H. 329; 30 Wis. 392; 58 Inch 124; 36 Am. Dec. 721; 34 R. R. A. 118. Injury was caused by neglect of city: 28 Cyc. 1389; 127 N. Y, 350; 45 N. Y. S. 239; 66 S. C. 442.\\nApril 22, 1913.\", \"word_count\": \"1281\", \"char_count\": \"6673\", \"text\": \"The opinion of the Court ivas delivered by\\nMr. Justice Hydricic.\\nAbout thirty years ago, the city of Florence dug a drain from twelve to fifteen feet deep through the western portion of the city, which rvas then undeveloped. Since that time, McQueen street has been laid off along the drain. There is conflict of evidence as to whether the drain is wholly within the street \\u2014 between the sidewalk and the driveway \\u2014 or merely on the extreme eastern edge of the street; but, as we shall see, that is not material.\\nThe drain remained an open waterway until 1910, when the city built a concrete arch in it, so as to leave sufficient space beneath for drainage, and began filling the space above by dumping into it the trash from the city, which contained a good deal of combustible matter.\\nAbout June 1, 1911, the driver of the city dump cart, after dumping in a load of trash, set fire to it. The fire smouldered along the ditch for nearly a week, and apparently went out, but there was left a bed of embers, into which the plaintiff, a child about five years old, fell, while playing in McQueen street. Plaintiff was very badly burned and recovered judgment against the city in this action for damages for his injuries.\\nBy the terms of the statute under which the action was brought (sec. 3053, Civ. Code), it was incumbent upon the plaintiff to allege and prove that his injury was not brought about by his own negligent act, and that he did not negligently contribute thereto. Walker v. Chester, 40 S. C. 342, 18 S. E. 936. The plaintiff so alleged in his complaint, and, when he proved that he was only five years old, he proved a fact which raised a presumption that he was incapable of negligence (Tucker v. Buffalo Mills, 76 S. C. 539, 57 S. E. 626), and in that way he fully complied with the condition of the statute.\\nIn Irvine v. Greenzvood, 89 S. C. 511, the neglect or mismanagement of the corporation in the repair of the street complained of consisted in leaving an electric light pole in the street from which an iron chain connected with the wire hung so low that plaintiff caught it and received a deadly charge of electricity. It was argued for the city that this was not such a defect in the repair of the street as was contemplated by the statute. In rejecting that contention, the Court said: \\\"But we are unable to give the duty of keeping streets in repair the narrow meaning contended for by respondents. To keep a street in repair means to keep it in such physical condition that it will be reasonably safe for street purposes. It is not enough that its surface should be safe; a street is not in repair when poles or wires or other structures are so placed in or over it as to be dangerous to those making a proper use of the street. In Duncan v. Greenville, 71 S. C. 170, 50 S. E. 675, it was held that a wagon left on the public road so as to put travelers in peril must be regarded under the statute as a failure to keep the road in repair. In this case the pole was placed in the street as a fixture and became a part of the street, which it became the duty of the municipal authorities to keep safe.\\\" In Hutchison v. Summerville, 66 S. C. 443, 45 S. E. 8, this Court held that the corporation.was liable for an injury to plaintiff resulting from negligence in leaving a ditch at the end of a sidewalk unguarded, so that plaintiff fell into it. Hence, if a ditch or drain along the edge of a street or highway is negligently left unguarded, and a person lawfully using the highway is injured thereby, the corporation is liable. It is not material, therefore, whether the ditch into which the plaintiff fell was wholly within the street, or merely along the extreme eastern edge of it; for, in either case, defendant is liable, if, under all the circumstances, it was negligence to leave it unguarded. Negligence in the repair of a street may consist in omission or nonaction.\\nThere was testimony from which the jury might properly have inferred that the act of the driver in setting fire to the trash in the ditch was done within the scope of his duties. There was, therefore, no error in refusing defendants motion to direct the verdict on the ground that there was no evidence that the city authorized the act. Moreover, the fact that the fire burned in the ditch for nearly a week afforded ample ground for an inference that the city authorities knew of it, and made no effort to prevent injury therefrom to those properly using the street.\\nAffirmed.\"}"

sc/1946020.json

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+"{\"id\": \"1946020\", \"name\": \"HASELDEN v. HAMER\", \"name_abbreviation\": \"Haselden v. Hamer\", \"decision_date\": \"1914-04-21\", \"docket_number\": \"8803\", \"first_page\": \"178\", \"last_page\": \"185\", \"citations\": \"97 S.C. 178\", \"volume\": \"97\", \"reporter\": \"South Carolina Reports\", \"court\": \"Supreme Court of South Carolina\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T21:14:20.832844+00:00\", \"provenance\": \"CAP\", \"judges\": \"Mr. Justice Gage did not sit in this case.\", \"parties\": \"HASELDEN v. HAMER.\", \"head_matter\": \"8803\\nHASELDEN v. HAMER.\\n(81 S. E. 424.)\\nMortgage. Deposit op Title Deeds. Pledge of Stock. Action for Accounting.\\n1. Where a purchaser of land paid the consideration, was put in possession, and made improvements, he was the owner, and the holding of the title deeds by the vendor as security for a debt did not create a mortgage.\\n2. In a pledgor\\u2019s action to redeem and for an accounting, the account rather than the pleadings was the basis of the judgment, since in actions for account, where defendant has all the property and accounts, plaintiff sues because he does not, and is not supposed to, know the amount due.\\n3. An agreement, providing for a forfeiture of pledged stock upon nonpayment of the secured debt, was void.\\n4. A pledgee of stock pledged to secure a debt was entitled to possession of the stock until payment of the debt or foreclosure of his lien according to law.\\n5. A pledgor of stock to secure a debt was the equitable owner thereof, \\u2022 and entitled to all credits from dividends thereon.\\nBefore Gage, J.,\\nDillon,\\nMay, 1913.\\nModified.\\nFootnote \\u2014 On the question of the duty of the pledgee of corporate stock to sell at maturity of debt, see note in 3 L. R. A. (N. S.) 1199.\\nAction by J. D. Haselden against W. N. Hamer. From a judgment in favor of the plaintiff, defendant appeals.\\nMr. James W. Johnson, for appellant.\\nMr. W. P. Stevenson, also for appellant, cites:\\nChanging ground for relief: 24 S. C. 165, 172. Rights of pledgor: 22 A. & E. Enc. of D. (2d ed.) 876-879; 16 Am. St. Rep. 679; 2 Mills Const. R. 241; 1 S. C. 445. Rights of pledgee: 22 A. & E. Enc. of L. (2d ed.) 885, 894; 145 U. S. 205; 16 Am. St. Rep. 667, 670; 3 L. R. A. (N. S.) 1199; 7 Mete. 407; 87 Ala. 645. Character of action: 43 S. C. 192. Amendment changing character of action: 81 S. C. 574. Effect of admissions in pleadings: 16 S- C. 585. Allegata and probata: Pomeroy Rem. & Rem. Rights, sec. 84. Power coupled with interest: 11 S. C. 520; 22 Ency. 906, 907. Trover and conversion: 72 S. C. 462, 463.\\nMessrs Haynsworth & Haynsworth, also for appellant, cite:\\nReadiness to perform contract: Thomp. on Corp., sec. 2646; 4 Johns. Ch. 490; 8 Am. Dec. 606; 33 Cal. 394; 10 Am. Rep. 290; 13 N. Y. 626; 207 U'. S. 278; 229 U. S. 23; 19 N. Y. 170. Rights of pledgee: ll S. C. 486; 70 S. C. 432; 25 S- E. 504; 48 S. E. 191; 88 N. W. 552; 39 Atl. 437; 114 N. Y. S. 1000; 86 N. E. 777; 93 N. E. 1123. Conversion: 102 Am. St. Rep. 30; 54 Atl. 46.\\nMessrs Willcox & Willcox and Henry E. Davis, for respondent, cite:\\nPrayer for relief no part'of cause of action: 34 S. C. 273; 13 S. C. 439; 23 S. C. 282; 34 S. C. 289; 16 S. C. 374; 70 S. C. 107. Conversion: 45 S. C. 388; 2 StrobJ Eq. 370. Tender unnecessary: 89 S. C. 426. . Amendment to conform to evidence: 86 S. C. 98; 68 S. C. 250; 53 S. C. 315; 51 S. C- 412. Relief appropriate: 16 S. C. 374; 48 S.\\\" C. 175; 69 S. C. 256. Pledge: 31 Cyc. 787, 789. Contract against public policy: 31 Cyc. 863; 49 Am. Dec. 727; Story Bailments 345; 11 Peters 351. Exercise of power to sell: 1 Code of Daws, sec. 4105; 31 Cyc. 858; 2 Cook Corp. 476, 477, 479. Waiver of right to redeem: 31 Cyc. 858; 79 Fed. 522. Pledgees duty: 31 Cyc. 860.-Weakness of party: 89 S. C. 352. Delivery of deed: 6 S. C. 124; 2 Strob. Eq. 70. Damages: 72 S. C. 458.\\nApril 21, 1914.\", \"word_count\": \"2311\", \"char_count\": \"12792\", \"text\": \"The opinion of the Court was d\\u00e9livered by\\nMr. Justice Fraser.\\nMr. Haselden and Mr. Hamer agreed to exchange certain real and personal property. The transactions that' grew out o-f their dealings are exceedingly complicated, and it took a brief of over 400 pages to tell us about it. There is much in this case, as in too many, other cases, that serves no other purpose but to confuse the- real issues.. It is the duty, however, of a Court of last r\\u00e9sort to read it all, and, after days of study, to weed out the irrelevant matter and simplify and clarify as best it can. There is much conflict o-f testimony, but it makes, no- difference which statement is taken to be true, the legal result is the same. For instance, if A executes to- B his- bond fo-r $1,000, secured by a mortgage of land worth $10,000, when the bond is due A comes to B and tenders, him the amount due, and B says: \\\"I will not take it. You1 last week executed to me an absolute conveyance of the land for the mortgage debt, and the land is now mine\\\" \\u2014 A denies the execution of the deed. Suit is brought and scores of pages of useless testimony are taken to prove and disprove the execution of the deed. Once a mortgage always a mortgage. The transaction can be converted from a mortgage to a conveyance only by a sufficient consideration, and it must appear that the transaction was in all respects fair. If B proves the execution of his deed, under the statement made- his deed is merely another mortgage be the terms never so absolute.\\nMr. Haselden and Mr. Hamer executed the following paper:\\n\\\"Exhibit A.\\n\\\"Dillon, S. C., November 21st, 1904. \\\"Mr. J. D. Haselden, Sellers, S. C. \\u2014 Dear Sir: I beg to make you the following offer for inventory of property submitted below by you for sale:\\nEdwards or Home tract........ 686 acres\\nHaselden Grove \\\" 400\\nShaffer Grove \\\" 365\\nMill Creek \\\" '........1,100 \\\"\\nWiggins Landing \\\" 260\\n20 lots, 50x150, in Sellers, with ginnery, machinery, scales, and houses........... $42,500 00\\nOptions 460 acres Miss C. Edwards' land .$5,000 00\\n34 mules and 3 horses.......... 4,000-00\\n75 hogs . . . 200 00\\nStock of corn and fodder........ 1,500 00\\n8 cows . 150 00\\nStock of merchandise, 80 per cent. of $5,000.00 . 4,000 00\\nAll plows and gear, 1 McCormick reaper and binder, 1 four-horse wagon, 4 two-horse wagons, 1 hayrake, all hoes, pitchforks, shovels, tools, etc............ 300 00 15,150 00\\nSum total .$57,650 00 \\u2014and payable as follows :\\n190 shares Dillon cotton mill stock at par.....$19,000 00 Premiums .9,880 00'\\n115 shares Maple cotton mill stock........... 11,500 00 Premiums and note privilege............... 3,720 00\\nCash . 10,000 00\\nHouse and lots (my dwelling on)........... 3,500 00\\nSum total .$57,650 00\\n\\\"I agree to enter into contract with you for 1905 at $1,000 per annum. Also into an. agreement to share all disposition of stock in either mill share and share alike with you in case you should care to dispose of your holdings at price I had offered for mine. In other words, should I make any sale you would have the option of placing one-half the amount sold out of your number of shares. Each of us to hold possession and receive profits made to January 1st, 1905. This means any dividends declared by the mills January, 1905, are to be mine.\\n\\\"Yours truly,\\n\\\"Wm. M. Hamer.\\n\\\"Accepted and received one dollar.\\n\\\"J. D. Haseeden.\\n\\\"Witness: E.-A. Tatum.\\\"\\nMr. Haselden conveyed to Mr. Hamer the land valued at $42,500. He did not deliver all the personal property, but they estimated the personal property delivered at $6,000. Before the transfer was had Mr. Hamer discovered that Mr. Haselden was considerably in debt, and much of the indebtedness was secured by mortgages on the land. Mr. Haselden admits that Mr. Hamer paid out for him, and he gave his notes for, $28,640.75, and that in order to secure him for this amount he agreed that Mr. Hamer should keep the mill stock as security.\\nThere is a dispute as to the delivery of the deed from Mr. Hamer to Mr. Haselden for the Hamer home place. Mr. Haselden claims that the deed was delivered and left by' him in Mr. Hamer's safe. Mr. Hamer claims that there was n,o delivery, but he held it to1 secure him for the amounts paid out 'by him for Mr. Haselden in addition to the mill stock. Now, if Mr. Hamer held the paper to secure his loans, then his rights in equity cannot rise higher than those of a mortgagee, and in equity Mr. Haselden was the owner. By this conveyance Mr. Haselden had paid the consideration, was put in possession and made some improvements (the drainage). Equity-treats him as the owner. The holding of the \\\"title deeds\\\" does not create a mortgage in this State, and the mortgage failed.\\nWhen Mr. Hamer claimed title to the house, and claimed that Mr. Haselden had forfeited all right to the mill stock pledged, and undertook to eject Mr. Haselden from the house, Mr. Haselden brought his suit to redeem and for an accounting. He asks to redeem and for a return of his securities. He says that he had turned over to Mr. Hamer all his property except the house; that Mr. Hamer had been collecting the income, and he did not know how much or what- amount he owed Mr. Hamer; that Mr. Hamer was holding his stock as collateral security, and he wanted to know the amount of his debt so that he -could redeem. This- case was tried in the Circuit Court, which held that Mr. Hamer had converted the stock to his own use, charged him with its estimated value of the mill stock, and gave judgment against Mr. Hamer in favor of Mr. Haselden for $18,000, the difference between the value of the stock assigned as collateral and Mr. Haselden's note. From this judgment Mr. Hamer appealed to this Court on numerous exceptions. It is not necessary to consider the exceptions separately, because the basis of settlement was wrong, and it will be necessary to restate the account. The general rule is that a plaintiff is required to state the amount of his. claim, and if the defendant admits it, there is no controversy, and judgment follows. In actions for account, where the defendant has all the property and accounts, the plaintiff comes into Court because he does not, and is not supposed to, know the amount due. The account rather than the pleadings is the basis of the judgment. Ency. of PI. & Prac., vol. 1, p. 87. \\\"The final judgment is based upon the auditor's report, and only indirectly upon the declaration.\\\" The plaintiff is required to plead what he knows. Mr. Haselden knew that Mr. Hamer claimed .a forfeiture, and that he (Hamer) was the owner of the stock. Notwithstanding this knowledge, he claims that Hamer holds his stock as collateral. The effect of that is to allege that he (Haselden) is the owner. The defendant, however, in his answer claims that the plaintiff has forfeited his right to redeem, and that he (Hamer) is now the owner. Hamer does not claim forfeiture in his evidence.\\nWho is the owner? The case shows that while the mill stock stood in Hamer's name, yet it was held by Hamer as security for the debt.' There was a disputed agreement that provided for a forfeiture upon the nonpayment of the debt. Haselden claims the agreement was signed while he was unconscious. For all practicable purposes it makes no' difference whether the agreement was execut\\u00e9d when Haselden was conscious or unconscious. A provision for a forfeiture upon nonpayment of the debt was void.. The law is well stated in 13 Cyc. 863: \\\"The pledgee is not entitled upon the pledgor's default to take the property as his own in satisfaction of the debt. A provision in the contract by which the absolute property in the pledge is to vest in the pledgee upon default of the pledgor is void and the pledgor is still entitled to redeem. Nor can the pledgee cut off the pledgor's \\\"interest in the collateral by a mere notice that if the debt is not paid by a certain time', he will take the collateral as his own.\\\" So that as a matter of law the stock belonged to Mr. Haselden. Even if there was a conversion, Mr. Hamer is responsible for and Mr. Haselden is entitled to the real value of the mill stock, and there was no evidence of the real value.\\nIn the Court of equity justice ought to be done. This was an exchange of property, and values were comparative merely. This is not denied. The record shows and it is not denied that Mr. Hamer warned Mr. Haselden against the uncertainty of the value of null stock.\\nWith full warning Mr. Haselden called for and claimed the mill stock up to the time of the final hearing. It is true Mr. Hamer claimed too much, but he is entitled to that which the evidence and law gives him. He is entitled to the return of his nipney, which Mr. Haselden admits he owes him, and entitled to retain possession of' the mill stock pledged until his debt is paid, or he forecloses his lien according to law. Mr. Haselden is the equitable owner of the stock, and entitled to all credits from dividends arising thereon and otherwise, and the case will have to be remanded to the Court of Common Pleas for Dillon county for a restatement of the account on this basis. Mr. Hamer is entitled to his debt and interest.\\nIt is, therefore, ordered that the judgment appealed from \\u2022be modified as above set forth, and the case is remanded for a restatement of accounts.\\nMr. Justice Gage did not sit in this case.\"}"

sc/1952790.json

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+"{\"id\": \"1952790\", \"name\": \"WEBB v. SOUTHERN RY. CO.\", \"name_abbreviation\": \"Webb v. Southern Ry. Co.\", \"decision_date\": \"1916-03-18\", \"docket_number\": \"9345\", \"first_page\": \"89\", \"last_page\": \"95\", \"citations\": \"104 S.C. 89\", \"volume\": \"104\", \"reporter\": \"South Carolina Reports\", \"court\": \"Supreme Court of South Carolina\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T23:16:31.221195+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"WEBB v. SOUTHERN RY. CO.\", \"head_matter\": \"9345\\nWEBB v. SOUTHERN RY. CO.\\n(88 S. E. 297.)\\n1. Parent and Child \\u2014 Actions for Loss of Services and Custody\\u2014 Sufficiency of Complaint.. \\u2014 A complaint alleging that defendant railway company through its agents, persuaded, advised, and by means unknown to plaintiff carried and deported her minor son away from his home and into another State, and without her consent and knowledge was working him with its extra force of hands upon its railway in which employment he was injured, stated a cause of action for depriving plaintiff of the services of her son and persuading and enticing him away from her, especially where the action was tried by consent with an action by the son for the injuries in which the complaint fully alleged how the injury happened.\\n2. Parent and Child \\u2014 Loss of Services and Custody \\u2014 Liability.\\u2014 Where the mother of a minor had once taken him away from railroad work and put him in a less dangerous employment, but a railroad company\\u2019s agent in the face of her objections and distinct refusal to let the boy go with him falsely stated to him that his mother had consented and persuaded the boy to go to another State and engage in a hazardous business in which he was injured, paying his way to go there, the company was liable for actual and punitive damages, as the mother was entitled to the services and companionship of her minor child and to place him at work with some one in whom she had confidence and in a business that was reasonably safe.\\n3. Parent and Child \\u2014 Loss of Services and Custody \\u2014 Actions \\u2014 Defenses. \\u2014 It was no defense to an action by the mother that the minor was guilty of contributory negligence.\\n4. Damages \\u2014 Exemplary\\u2014Sufficiency of Complaint. \\u2014 Where a complaint alleged that plaintiff\\u2019s minor son was persuaded and hired without her consent to leave the State and engage in hazardous work, in which he was injured, it justified an award of punitive damages, as the jury were justified in assuming that defendant\\u2019s act was wilful and high-handed.\\n5. Trial \\u2014 -Motion for Nonsuit \\u2014 Time for Motion. \\u2014 A motion for a nonsuit, after a motion for a new trial had been made and refused, came too late, and its denial was not error.\\n6. Appeal -and Error \\u2014 Harmless Error \\u2014 Rulings on Pleadings.\\u2014 Where the Court in construing the complaint in its charge withdrew a cause of action from the jury, thus practicaEy granting a nonsuit, the denial of a formal motion for a nonsuit as to such cause of action was not prejudicial.\\nBefore Hon. M. F. Ansel, special Judge, Greenville, \\u2022 June, 1915.\\nAffirmed.\\nAction by Ella Webb against the Southern Railway Company. Judgment for plaintiff, and defendant appeals.\\n\\u2022 The first three paragraphs of the complaint alleged that defendant was a Virginia corporation having a line of railway running through the county of Greenville with officers\\u00bb and agents in such county, that plaintiff was the mother of Will Webb, who was 18 years of age, and whose labor and services belonged legally to plaintiff, and that without the knowledge and consent of plaintiff the def\\u00e9ndant through and by its agent persuaded, advised, and by means unknown to plaintiff carried and deported Will Webb away from his home and into the State of North Carolina, and without her consent and knowledge was working him with its extra force of hands upon its line of railway, paying him for his services 90 cents a day. Subsequent paragraphs alleged the happening of the accident mentioned in the opinion.\\nMessrs. Cothran, Dean& Cothran, for appellant,\\ncite: As to right of action for enticing child to leave parent: 2 Brev. 276; 30 R. R. A. (N. S.) 311; 28 S. E. 367; 47 N. Y. 244; 1 R. R.' A. (N. S.) 208.\\nMessrs. J. Roht. Martin and John C. Henry, for respondent,\\ncite: As to sufficiency of complaint: 81 S. C. 355. General rules of construction: 75 S. C. 135; 56 S. C. 249; Code Civ. Proc. 209. Injury to child is injury to mother: 4 S. C. R. (2 Brev.) 276; 13 S. C. R. (2 McC.) 227; 34 S. C. 522. Scope of agency for master: 3 S. C. 7; 93 S. C. 144; 33 S. C. .377. License: Crim. Code, sec. 895. Charge as damages: 75 S. C. 125; 94 S. C. 309.\\nMarch 18, 1916.\", \"word_count\": \"2127\", \"char_count\": \"11763\", \"text\": \"The opinion of the Court was delivered by\\nMr. Justice Watts.\\nWill Webb was the minor son of the plaintiff, and while in the employment of the defendant in December 8, 1913, he having been employed by the agent of the defendant at Greenville, S. C., on December 7, 1913, and carried to Charlotte, N. C., upon transportation furnished by the defendant was struck by the passenger train of the defendant. Will Webb had been directed to go to a shanty car about one mile from the station. It was dark, and in going there he was struck and seriously injured, losing one leg.\\nSuits were brought by Will Webb by his guardian ad litem, and one' by his mother, Ella Webb, each for $3,000. The action by Ella Webb was begun on November 19, 1914. The action by Will Webb was for damages on account of personal injuries. That of Ella Webb, as by her contended, is for abduction of her minor son. The cases came on for trial before Hon. Martin E. Ansel, special Judge, and a jury, at the June, 1915, term of Court for Greenville county, and by agreement the two cases were heard together. At the conclusion of the testimony the defendant made a motion for a directed verdict in each case on the grounds set out in the record. The motion was granted in the case of Will Webb by his guardian ad litem, and from that there is no appeal.\\n\\u2022The motion in the case of Ella Webb was refused, the Court holding that the complaint stated a cause of action for abduction of a minor child, and consequent loss of service, and this case was submitted to a jury, and resulted in a verdict in favor of the plaintiff for $250 actual damages and $250 punitive damages. Defendant moved for a new trial on the minutes, which was refused. When this motion was refused, defendant moved for a nonsuit in the Ella Webb case as to the cause of action based on loss of service, upon the ground that the presiding Judge h\\u00e1d practically granted such motion in his charge to the jury in withdrawing from them consideration of that cause of action. This motion was refused, in an order filed by the Judge stating, in substance, what he had done in construing the complaint in his charge to the jury practically amounted to a nonsuit as to the cause of action that he withdrew from the jury.\\nAfter entry of judgment defendant appealed and seeks reversal. Fourteen exceptions were filed, and by them the following questions were raised: (1) That the complaint does not state a cause of'action for enticing a minor child from the custody of its parent. (2) Even if it does there is no evidence to sustain this allegation.\\nThe complaint is most inartistically drawn. It has been said that good pleadings are half of the battle won when a party comes into Court asking for redress for the wrong done. We cannot see that the presiding Judge erred in holding that paragraphs 1, 2, and 3 of the complaint stated a good cause of action by being deprived of the services of her son in consequence of the accident that occurred to him, and that he had been persuaded and enticed from her by the defendant's agent and servants, and in refusing to direct the verdict as requested by the defendant. The Court, while appreciating and commending good pleading, is loath to deprive any litigant of a substantial right on a technical ground and faulty pleading, if there is enough in the pleading to state a cause \\u00f3f action.\\nThe complaint advertises the defendant of enough to' inform it of what the plaintiff was seeking to recover damages, for the defendant could not be misled by what plaintiff alleged. She was seeking to recover damages because her minor son had been induced by the defendant to leave her custody and care and go out. of the State and engage in railroad work without her knowledge or permission, and while so engaged was seriously injured, being maimed by the loss of a leg. He had also sued, and fully alleged how it happened in his complaint. The two cases were tried together, and the defendant consented to this, and was ready, prepared, and willing to meet every issue raised by the pleadings in both cases, and should not be allowed to have the complaint in this case dismissed because the allegations are somewhat cloudy and obscure, but there is enough to state the cause of action, as ruled by the Judge.\\nAs to the proof as to the material allegations of the complaint. He was a minor, the evidence shows; that by her consent he worked at Liberty, and stayed at home every Saturday night. He worked under a man of her town, whom she knew and had confidence in. That Will made one trip to North Carolina, and on his return she took him from railroad work and put him under another employment that paid less and was less dangerous. The agent of the defendant, in the face of her objections and distinct refusal to let the boy go with him, went to Greenville and falsely stated that the mother had consented, persuaded the boy to leave the State, and go to another State, paying his way, and consciously engaged the boy and put him to work at a hazardous business.\\nThe mother was entitled to the services of her minor child. She was entitled to his companionship, and was entitled to place him at work with some one that she had confidence in, and put him to work in a business that was reasonably safe. The defendant persuaded him to leave this occupation, carried a minor beyond the State, and put him to work in a hazardous business without the consent of his mother. He was seriously injured, and the evidence is ample to sustain the verdict for actual and punitive damages. The defendant cannot send out agents acting within the scope of their authority to entice minors away from their parents without their consent and put them in a dangerous work and have them injured without paying damages.\\nIt is no defense to this action that the boy was guilty of contributory negligence. The mother is not. Her son had been persuaded to leave her, is taken off without her consent, and has been returned to her a maimed wreck, one leg gone, through the act of defendant's enticement. If he had been let alone, he would in all probability be a sound man, able to earn more wages, and a source of pleasure to his mother.\\nAs to the exceptions that the complaint does not state facts that punitive damages could be allowed, we think there was sufficient allegation to submit this issue to the jury. It is alleged that the minor was persuaded and hired to leave the State without his parent's consent. If this be true, then the jury were justified in assuming that it was wilful and high-handed, and defendant should respond in actual and exemplary damages.\\nAs to not granting nonsuit after motion for new trial had been made and refused, it is sufficient to say this motion was not made at the proper-time, but came too late; but Judge Ansel's order satisfactorily explains, and the defendant was not prejudiced. We see no error. All exceptions overruled.\\nJudgment affirmed.\\nFootnote. \\u2014 As to liability for enticing minor from parents' service, see note in I L. R. A. (N. S.) 20S, 45 L. R. A. (N. S.) 871. As to what amounts to enticement of minor child from parents' custody, see notes in 48 L. R. A. (N. S.) 1001. As to the mother's right of action for enticing minor, see notes in 1 L. R. A. (N. S.) 362 and 11 A. & E. Ann. Cas. 1172. Who may recover, see notes in 45 L. R. A. (N. S.) 872. Right of wife deserted by husband to recover for loss of services of minor child resulting from negligence of another, see 22 A. & E. Ann. Cas. 1912a, 991. Loss of society of child as an element of damages in action by parent for injury to child, see notes in 18 A. & E. Ann. Cas. 479.\"}"

sc/1955539.json

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+"{\"id\": \"1955539\", \"name\": \"BRADFORD v. YORK COUNTY; THOMPSON v. YORK COUNTY; BLANKENSHIP v. YORK COUNTY; ROACH v. YORK COUNTY\", \"name_abbreviation\": \"Bradford v. York County\", \"decision_date\": \"1917-03-15\", \"docket_number\": \"9638\", \"first_page\": \"500\", \"last_page\": \"500\", \"citations\": \"106 S.C. 500\", \"volume\": \"106\", \"reporter\": \"South Carolina Reports\", \"court\": \"Supreme Court of South Carolina\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T16:58:35.501316+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"BRADFORD v. YORK COUNTY. THOMPSON v. YORK COUNTY. BLANKENSHIP v. YORK COUNTY. ROACH v. YORK COUNTY.\", \"head_matter\": \"9638\\nBRADFORD v. YORK COUNTY. THOMPSON v. YORK COUNTY. BLANKENSHIP v. YORK COUNTY. ROACH v. YORK COUNTY.\\n(91 S. E. 873.)\\nBhidoes\\u2014Counties\\u2014Liability fob Injubies.\\u2014Case of Banders v. York County, 106 S. C. 374, 91 S. E. 305, followed..\\nBefore Bowman, J., York, February, 1916.\\nReversed.\\nSeparate actions by Z. V. Bradford, by John Thompson, by F. J. Blankenship and by Earle B. Roach against York County. Orders sustaining demurrers, and defendant appe\\u00e1ls.\\nMessrs. Wilson & Wilson and Oran S. Crawford, for appellant.\\nJ. S. Brice and Dunlap, Dunlap & Hollis, for respondents.\\nMarch 15, 1917.\", \"word_count\": \"153\", \"char_count\": \"899\", \"text\": \"The opinion of the Court was delivered by\\nMr. Justice Fraser.\\nThese cases were tried along with the case of Joseph H. Sanders v. York County, 106 S. C. 374, 91 S. E. 305, and are determined by the judgment in that case.\\nThe orders sustaining the demurrers are overruled, and the cases are remanded for trial.\"}"

sc/1962291.json

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+"{\"id\": \"1962291\", \"name\": \"HARMON v. SEABOARD AIR LINE RY.\", \"name_abbreviation\": \"Harmon v. Seaboard Air Line Ry.\", \"decision_date\": \"1918-06-02\", \"docket_number\": \"9883\", \"first_page\": \"153\", \"last_page\": \"155\", \"citations\": \"110 S.C. 153\", \"volume\": \"110\", \"reporter\": \"South Carolina Reports\", \"court\": \"Supreme Court of South Carolina\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T23:16:00.496047+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"HARMON v. SEABOARD AIR LINE RY.\", \"head_matter\": \"9883\\nHARMON v. SEABOARD AIR LINE RY.\\n(96 S. E. 253.)\\nMaster and Servant\\u2014Injuries to Servant\\u2014Assumption of Risk.\\u2014 Where a railroad servant, engaged in lifting heavy timbers and placing them on a dump car to be used in the construction of a trestle, was injured while lifting a' piece of timber because the crew was inadequate, he could not recover, having assumed the risk.\\nBefore Prince, J., York, Spring term, 1918.\\nAffirmed.\\nAction by S. O. Harmon against the Seaboard Air Tine Railway Company. From an order of nonsuit, plaintifl appeals.\\nMessrs. John T. Green and /. Harry Poster, for appellant,\\ncite: As to assumption of risk: 73 S. C. 503; 68 S. C. 55; 47 Am. Rep. 319; 19 Am. State Rep. 180; 24 Am. St. Rep. 317; 44 Am. St. Rep. 945; 66 Pacific Reports 799; 92 S. C. 528; 52 S. C. 438 ; 55 S. C. 102; 14 Encyc. of Law 357; 21 S. C. 541; 82 S. C. 550; 89 S. C. 390; 55 S. C. 90.\\nMessrs. Glenn & Glenn, for respondent,\\ncite: 233 U. S. 492; 38 Law Ed. 1002.\\nJune 2, 1918.\", \"word_count\": \"718\", \"char_count\": \"3960\", \"text\": \"The opinion of the Court was delivered by\\nMr. Chief Justice Gary.\\nThis is an appeal from an order of nonsuit. The action arose under the Federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Coinp. St. 1916, secs. 8657-8665]).\\nAt the time of the injury hereinafter mentioned the plaintiff, with other servants, was engaged in lifting heavy timbers, and placing them on a dump car to be used in the construction of a trestle. While lifting a piece of timber, the plaintiff's back was strained through overexertion, and he was thereby injured. It was alleged that the plaintiff and the other employees were working under the foreman; that the crew was inadequate; that the foreman negligently hurried the work; and that this was the cause of the injury.\\nHis Honor, the Circuit Judge, granted the nonsuit, on the ground that the plaintiff was well aware of the fact that the number of servants was insufficient, that the plaintiff nevertheless continued to do the work assigned to him, and that he thereby assumed the risk of his employment.\\nThe rule is thus stated in the case of Seaboard Air Line v. Horton, 233 U. S. 492, 34 Sup. Ct. 635, 58 L. Ed. 1062, L. R. A. 1915c, 1, Ann. Cas. 1915b, 475:\\n\\\"Such dangers as are normally and .necessarily incident to the occupation, are presumably taken into the account, in fixing the rate of wages. And a workman of mature years is taken to assume risks of this sort. But risks of another sort, not naturally incident to the occupation, may arise out of the failure of the employer to exercise due care, with respect to providing a safe place of work, and suitable and safe appliances for the work. These the employee is not treated as assuming until he becomes aware of the defect or disrepair and the risk arising from it, unless defect and risk alike are so obvious, that an ordinarly prudent person under the circumstances, would have observed and appreciated them. When the employee does know of the defect, and appreciates the risk that is attributable to it, then if he continues in the employment, without objection, or without obtaining from the employer of his representative an assurance that the defect will be remedied, the employee assumes the risk, even though it arise out of the master's breach of duty.\\\"\\nThe facts in the case under consideration are quite different from those in Lorick v. Railway, 102 S. C. 276, 85 S. E. 675, Ann. Cas. 1914d, 920, in which there was a second trial, 93 S. E. 332, and which was affirmed on writ of error by the United States Supreme Court. 243 U. S. 572, 37 Sup. Ct. 440, 61 L. Ed. 907. In that case the testimony tended to show that the plaintiff, a car inspector, was not provided with a jack which was necessary to make the requisite repairs, and that he had on several occasions complained to his superior officers that he should be provided with such appliance. The superior officers promised to furnish him a jack, but failed to do so.\\nAffirmed.\"}"

sc/1971788.json

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+"{\"id\": \"1971788\", \"name\": \"STATE v. THOMPSON\", \"name_abbreviation\": \"State v. Thompson\", \"decision_date\": \"1921-12-13\", \"docket_number\": \"10771\", \"first_page\": \"191\", \"last_page\": \"195\", \"citations\": \"118 S.C. 191\", \"volume\": \"118\", \"reporter\": \"South Carolina Reports\", \"court\": \"Supreme Court of South Carolina\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T22:10:41.135327+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE v. THOMPSON\", \"head_matter\": \"10771\\nSTATE v. THOMPSON\\n(110 S. E. 133)\\n1. Witnesses\\u2014Latitude Allowed in Cross-Examination to Test Accuracy op Memory, Bias, or Credibility op Witness.\\u2014Considerable latitude is allowed in the cross-examination of a witness to test the accuracy of his memory, his bias, prejudice, interest, or credibility, but the restriction of the testimony is salutary, and much must be left to the sound discretion of the Judge, even where the matter appears to be relevant.\\n2. Witnesses\\u2014Extent to Which Witness May be Cross-Exam,ined to Test Memory, Bias, Interest, or Credibility.\\u2014In cross-examination of witness to test the accuracy of his memory, his bias, prejudice, interest, or .credibility, the witness may be asked questions in reference to irrelevant matters or in reference to prior statements contradictory of his testimony, or in reference to statements as to irrelevant matters not contradictory of his testimony, but may not be impeached by contradictory witnesses as to prior contradictory statements as to collateral, irrelevant, or immaterial matters.\\n3. Witnesses\\u2014Cross-Examination as to Whether Witness Had Made Statement to Named Person as to Statement of Deceased Held Improper.\\u2014In homicide prosecution, witness who accompanied deceased at time of killing could not be cross-examined as to whether he stated to named person that deceased had exonerated defendant from responsibility, with view of contradicting witness by the subsequent testimony of such person that the witness had in fact made the statement, where claimed statement by deceased to witness was not made as a dying declaration, and was not a part of the res gestae, since, even if relevant, it was not contradictory of any testimony that the witness had given, and the alleged statement of witness to such named person was not contradictory of any testimony witness had given.\\n4. Criminal Law\\u2014Declaration op Deceased Inadmissible as Opinion.\\u2014In a homicide prosecution, declaration of deceased that defendant was not to blame, not made as a dying declaration or as part of res gestae was at most an expression of opinion, and inadmissible.\\nBefore Rice, J-, Darlington, Fall term, 1920.\\nAffirmed.\\nAlbert Thompson convicted of manslaughter and appeals.\\nMr: B. C. Dennis, for appellant,\\ncites: Declaration, if not part of res gestae, may be admissible, to contradict witness: 7 Ene. Ev. 76; 37 S. C., 417; 34 S. C., 16. Statement of' deceased favorable to defendant admissible: 4 Rich. D. 146. i\\nMr. J. Monroe Spears, Solicitor, for the State.\\nDecember 13, 1921.\", \"word_count\": \"1357\", \"char_count\": \"8193\", \"text\": \"The opinion of the Court was delivered by\\nMr. Justice Cothran.\\nThe defendant was tried for.the murder of one Norman Ervin, and was convicted of manslaughter. The appeal involves only a question of evidence.\\nThe deceased, with his stepfather, Richard Ervin, had' gone at night to the home of a -daughter of Richard Ervin, where it was alleged by, the State the defendant was found in bed with the woman. In a scuffle with the defendant as he emerged from the door, Norman Ervin was shot by the defendant. He was taken to a hospital, where he died, and his body carried to Darlington, and thence to his brother's house.\\nWhile on the stand as a witness for the State, Richard Ervin was asked upon cross-examination by defendant's counsel if, on the Sunday afternoon when Norman's body was laid out in the house of Richard Ervin's son, he (Richard) had not told Allen Thompson, an uncle of the defendant, that Norman had said not to do anything with Albert Thompson, because he (Norman) was to blame. No circumstances were detailed showing that this alleged statement of Norman was either a dying declaration or a part of the res gestae. The witness denied making the statement. The defendant then offered to contradict him by Allen Thompson, the party to whom the alleged statement was made. The presiding Judge ruled the testimony inad missible, and his ruling is made the ground of -the first exception.\\nThe admissibility of the testimony depends upon the relevancy of the alleged exculpatory statement of the deceased. Considerable latitude is allowed in the cross-examition of a witness (alwa'ys within the control and direction of the presiding Judge) to test the accuracy of his memory, his bias, prejudice, interest, or credibility. In doing so the witness may be asked questions in reference to irrelevant matter, or in reference to prior statements contradictory of his testimony, or in reference to statements as to relevant matter not contradictory of his testimony. It does not follow, however, that the witness may be impeached by contradictory witnesses to the same extent that the interrogation may be permitted.\\nAs to questions in reference to irrelevant matter the rule is thus stated in Jones v. McNeill, 2 Bail. (S. C.) 466:\\n\\\"Irrelevant questions may be put to a witness on his cross-examination, with the view of obtaining from him contradictory or inconsistent answers, and of thus impeaching and destroying his credit.; but they cannot be asked with a view of calling other witnesses to contradict his answers.\\\"\\nAs to questions and contradicting testimony in reference to prior statements contradictory to his testimony on the trial, the rule is thus expressed in State v. Sullivan, 43 S. C., 210; 21 S. E., 7 (quoting from Greenleaf) :\\n\\\"The credit of a witness may also be impeached by proof that he has made statements out of Court contrary to what he has testified at the trial. But it is only in such matters as are relevant to the issue that the witness can be contra-dieted.\\\"\\n\\\"It is not permissible to impeach a witness by showing that he has made prior contradictory statements as to collateral, irrelevant, or immaterial matters; and the test is whether, if the matter alleged to have been stated by the witness out of Court were true, the party seeking to impeach the witness would be entitled to prove such matter in support of his case.\\\" 40 Cyc., 2699.\\nAs to statements in reference to relevant matters not contradictory of his testimony:\\nAs to those it would appear that he may be questioned and contradicted by another witness when the proper foundation shall have been laid.\\nThe suggested statement as coming from Norman Ervin, the deceased, was not at all .contradictory of any testimony which Richard had given; neither was the alleged statement of Richard that Norman had so stated. Hence the testimony was not admissible as a statement contradictory of Richard's testimony, even if the so-called statement of Norman were relevant testimony. The only effect it could have had, if relevant, was to create an inference inconsistent perhaps with the inference deducible from Richard's testimony; but it was in no sense a statement of Richard contradictory of his testimony.\\nUnder the case of State v. Taylor, 56 S. C., 360; 34 S. E., 939, the alleged declaration of Norman . could not have been introduced in evidence, and was therefore irrelevant. In that case it was proposed to prove a declaration by the deceased contradictory of the dying declaration in evidence, which contradictory statement was of course exculpatory of the defendant. The Court ruled against its admissibility upon the ground that it was neither a dying declaration not a part of the res gestae.\\nAt most the alleged declaration of Norman was the mere expression of an opinion.\\n\\\"Thus the mere expression of an opinion that the deceased was not at fault or of a desire that he should not be prosecuted cannot be received in evidence.\\\" 21 Cyc., 988.\\nThe restriction of the testimony is salutary, and much must be left to the sound discretion of the Judge even where the matter appears to be relevant. If it is irrelevant the contradiction tends to create an issue collateral in its nature. If it is relevant apparently, the presiding Judge-should have the discretion to exclude the testimony where it would appear practically impossible for the jury to confine their consideration of it to purposes of impeachment, and not unconsciously treat it as substantive evidence.\\nThe other exception presents a similar question, and is controlled by the disposition of the first.\\nThe judgment of this Court is that the judgment of the Circuit Court be affirmed.\"}"

sc/2000916.json

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+"{\"id\": \"2000916\", \"name\": \"FORD ET AL. v. SAULS ET AL. EX PARTE CITIZENS EXCHANGE BANK IN RE LIQUIDATION OF CITIZENS EXCHANGE BANK\", \"name_abbreviation\": \"Ford v. Sauls\", \"decision_date\": \"1927-02-26\", \"docket_number\": \"12163\", \"first_page\": \"426\", \"last_page\": \"435\", \"citations\": \"138 S.C. 426\", \"volume\": \"138\", \"reporter\": \"South Carolina Reports\", \"court\": \"Supreme Court of South Carolina\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-11T02:39:32.771941+00:00\", \"provenance\": \"CAP\", \"judges\": \"Mr. Chiee Justice Watts, Messrs. Associate Justices Beease and StabeEr, and Mr. Acting Associate Justice Purdy, concur.\", \"parties\": \"FORD ET AL. v. SAULS ET AL. EX PARTE CITIZENS EXCHANGE BANK IN RE LIQUIDATION OF CITIZENS EXCHANGE BANK\", \"head_matter\": \"12163\\nFORD ET AL. v. SAULS ET AL. EX PARTE CITIZENS EXCHANGE BANK IN RE LIQUIDATION OF CITIZENS EXCHANGE BANK\\n(136 S. E., 888)\\nSeptember, 1925.\\nMr. J. Wesley Crum, for appellants,\\nMr. R. C. Hardwick, also for appellants.\\nMessrs, Brown & Bush and Thos. M. Boulware, for respondent,\\nFebruary 26, 1927.\", \"word_count\": \"2752\", \"char_count\": \"15853\", \"text\": \"The opinion of the Court was delivered by\\nMr. Justice Cothran.\\nThis is an appeal from an order of his Honor, Judge Dennis, refusing a motion by the defendants to set aside the summons and complaint and abating the cause of action, upon certain grounds, and also from an order of the same judge, signed on the same day, December 18, 1925, overruling the demurrer interposed by the defendants to the complaint upon the general ground, with specifications.\\nIt appears that on May 11, 1925, the board of directors of the Citizens' Exchange Bank of Denmark, under Section 3981, Vol. 3, Code 1922, by proper resolution, requested the state bank examiner \\\"to take and retain sole possession and control of the property and business of\\\" the bank \\\"for not exceeding 30 days\\\"; that immediately the examiner complied with said request; that on May 23, 1925, the stockholders adopted a resolution that with the consent of the examiner application Jae made to the Court for an order authorizing the bank \\\"to liquidate its affairs under the sole supervision and control of the examiner and subject to the order of the said Court.\\\". To this application the examiner consented, and on June 9, 1925, his Honor, Judge Rice, passed an order conformable to the application.\\nThe bank then proceeded to liquidate its affairs, we assume with the directors as liquidating trustees, as indicated as the proper course in Brown v. Hammett, 133 S. C., 446; 131 S. E., 612.\\nOn August 13, 1925, the present proceeding was instituted by Sarah Ford, suing on behalf of herself and all other depositors of the Citizens' Exchange Bank, against Laura Sauls and others, stockholders in said bank, upon their constitutional and statutory liability, alleging the insolvency of the bank. The writing setting forth the alleged cause of action was denominated a complaint; was accompanied by a summons served with the complaint upon the defendant Laura Sauls and perhaps others; it was entitled: \\\"Sarah Ford, Suing on Behalf of Herself and Other Depositors of the Citizens' Exchange Bank of Denmark, S. C., plaintiff, against Mrs. Laura Sauls (then follows a long list of other names), defendants. Ex Parte the Citizens' Exchange Bank of Denmark. In re. Liquidation of the Affairs of the Citizens' Exchange Bank of Denmark, S. C.\\\"\\u2014 apparently an effort to comply with the proviso in Section 3981, which will hereinafter be considered.\\nThe defendants then made the motion and interposed the demurrer referred to in the opening paragraph of this opinion. The grounds of same need not be set forth, as in the \\u00e1rgument of counsel for the appellants it is stated, \\\"The real question to be determined by this appeal is whether this action can be maintained under Section 3981 of the Code\\\"; and so it will be considered.\\nCounsel for the appellants contends that the action instituted by the plaintiff is not a proceeding \\\"in the cause in which the order of liquidation was granted,\\\" and for that reason comes within the inhibition of the proviso in Section 3981:\\n\\\"That during the periods when the examiner is in control of said corporation no action or proceeding against said corporation or its stockholders shall be instituted except in the cause in which the order of liquidation was granted.\\\"\\nWe think that the counsel is correct in this contention, and that the proceeding is really an independent action, in the nature of a creditor's bill, for the recovery of the statutory liability of all of the stockholders, for the benefit of all of the depositors, a matter that does not concern the liquidating trustees of the bank, and, for that reason, not within the inhibition of the proviso, which refers only to actions or proceedings affecting the liabilities or assets of the bank.\\nThe right of action upon the statutory liability of a stockholder has been invariably held by this Court to be a personal right of the depositors, enforceable by them in an action in the nature of a creditor's bill. It can, therefore, be no part of the assets of an insolvent bank, with which the liquidating trustees or the receiver, as the case may be, are charged with the duty of assembling and distributing.\\nIn Parker v. Bank, 53 S. C., 583; 31 S. E., 673; 69 Am. St. Rep., 888, certain creditors of the defunct bank, who were also stockholders, sought to set off their claims as creditors against their statutory liability as stockholders. Their claims were disallowed, for the very good reason stated by the Court:\\n\\\"The statutory liability is exclusively for the benefit of the creditors, and is enforceable by the creditors and not by the corporation. Creditors, sue in their own right and not by or through the corporation.\\\"\\nFor this reason it was held that a single creditor might maintain a creditor's bill on behalf of'all creditors, avoiding a multiplicity of suits.\\nIn Buist v. Williams, 81 S. C., 501; 62 S. E., 861, the Court said:\\n\\\"Creditors of an insolvent bank are not required to exhaust the assets of the bank before suing the stockholders on their liability fixed by law. Bird v. Calvert, 28 S. C. [22 S. C.], 292. Parker v. Bank, 53 S. C., 583; 31 S. E., 673 [69 Am. St. Rep., 888], Hence, when a bank becomes insolvent the creditors have two remedies which they may enforce, simultaneously. They may sue the bank and have a receiver appointed for the collection of the assets and application of them to the debts, and, at the same time, sue the stockholders on-their liability.\\\"\\nIn Smoak v. Bank, 131 S. C., 54; 126 S. E., 399, the Court said:\\n\\\"The depositors had the right to bring their action; they were not required to wait until the receiver wound up the affairs of the bank.\\\"\\nIn the case of State v. Bank of Clio, 129 S. C., 109; 123 S. E., 773, a creditor by note filed a petition in the case, in which a receiver had been appointed, for leave to surrender his note and take in substitution a certificate of deposit which he had surrendered at a prior time for the note, so that he might recover as a depositor upon the stockholders' statutory liability. The petition was dismissed in this Court upon the ground that the Court had no jurisdiction of the matter, for the reason that the petitioner's controversy was with the stockholders and not with the receiver. \\\"That this controversy does not in any wise concern the receiver of the bank . That is a matter with which the receiver is not at all concerned; it is entirely separate and distinct from the \\u2022administration of the estate in his hands.\\\"\\nThat the liability of the stockholders to the depositors is an individual liability to the depositors only, and is not an asset of the bank, the receiver having nothing to do with it, is sustained also by the following authorities: Alsop v. Conway (C. C. A.), 188 F., 568. Zang v. Wyant, 25 Colo., 551; 56 P., 565; 71 Am. St. Rep., 145. Flynn v. Bank, 104 Me., 141; 69 A., 771; 19 L. R. A. (N. S.), 428; 29 Am. St. Rep., 378. Bank v. Ellis, 166 Mass., 414; 44 N. E., 349; 55 Am. St. Rep., 414. Bank v. Ellis, 172 Mass., 39; 51 N. E., 207; 42 L. R. A., 396; 70 Am. St. Rep., 232. Golden v. Cervenka, 278 Ill., 409; 116 N. E., 273.\\nIn Runner v. Dwiggins, 147 Ind., 238; 46 N. E., 580; 36 L. R. A., 645, the Court says (quoting syllabus):\\n\\\"The double liability of the stockholders of a bank is not a 'right' or 'credit'' of the bank, which Rev. St. 1894, \\u00a7 2908 (Rev. St. 1881, \\u00a7 2671), authorizes the assignee for the benefit of creditors to collect, but is enforceable only by the creditors.\\\"\\nIn Morawetz, Priv. Corp. \\u00a7 869, it is said:\\n\\\"A provision of this character does not increase the capital'or pecuniary resources of a corporation, except indirectly by increasing its commercial credit; its object is merely to provide a security for creditors in addition to the security furnished by the company's capital. The liability thus assumed by the shareholders is solely for the benefit of the company's creditors. The corporation and its officers and agents cannot dispose of or control it in any manner.\\\"\\nIn Thomp. Com. Corp., \\u00a7 3560, it is said:\\n\\\"It may be stated as a general rule that statutes making stockholders individually liable to creditors independently of what they owe the corporation on account of their stock, create a right flowing directly from the stockholders to creditors. The sums thus created form no part of the assets of the company, but are a supplemental or superadded security for the benefit of creditors. An attempted assignment of this security is therefore inoperative. No action to enforce such liability can be brought by a receiver or assignee-of the corporation; such an action must be brought by one or more of the creditors.\\\"\\nIn Cook on Stock and Stockholders, \\u00a7 216, it is said:\\n\\\"The statutory liability of the stockholders is created exclusively for the benefit of corporate creditors. It is not to be numbered among the assets of the corporation and the corporation has no right or interest in it.\\\"\\nSee, also, Jacobson v. Allen (C. C.), 12 F., 454. Fransworth v. Wood, 91 N. Y., 508; 3 R. C. L., 31. McLaughlin v. Kimball, 20 Utah, 254; 58 P., 685; 77 Am. St. Rep., 908. Zang v. Wyant, 25 Colo., 551; 56 P., 565; 71 Am. St. Rep., 145. Colton v. Mayer, 90 Md., 711; 45 A., 874; 47 L. R. A., 617; 78 Am. St. Rep., 456.\\nIt is contended by counsel for the appellant that a proceeding for liquidation of a bank under Section 3981 is available only in cases involving a solvent bank;th\\u00e1t if the bank is insolvent the proceeding provided for in Section 3985 is exclusive. For this reason it is argued that the plaintiff having alleged the insolvency of the bank, has cut herself off from relief under Section 3981, assuming that the proceeding comes within the proviso of Section 3981.\\nWe dq not so construe the sections. On the contrary, Section 3981 applies without distinction to insolvent as well as solvent banks, and if the bank be found to- be insolvent, the discretion is vested with the examiner to proceed under either Section 3981, by liquidation, or under Section 3985 by receivership. It is conceivable that the conduct of the directors may have been such that actions against them would be advisable, in which event it would clearly be inexpedient to commit the liquidation to them; or for many possible reasons the examiner might determine that a receivership under a capable, disinterested receiver would be preferable. At the same time, where there has been no suspicion of wrongdoing or negligence and the directors familiar with local conditions have the confidence of the examiner, liquidation by them would be preferable. This matter is intended to be committed to his wise discretion.\\nAppropriate to the discussion is an order refusing a supersedeas in the case of Ex parte Brown et al., signed by the writer of this opinion on January 8, 1927, which the reporter will reproduce in the report of this appeal.\\nAfter the filing of that order the appeal was dismissed by consent.\\nIt goes without saying that the plaintiff's cause of action must be sustained by proof of the insolvency of the bank, an issue of fact.\\nThe judgment of this Court is that the orders appealed from be affirmed, and that the case be remanded to the circuit Court for further proceedings.\\nMr. Chiee Justice Watts, Messrs. Associate Justices Beease and StabeEr, and Mr. Acting Associate Justice Purdy, concur.\\nORDER\\nThis is an application before me ex parte, for an order of supersedeas, staying the execution of an order by his Honor, Judge Townsend, appointing a receiver of the Bank of Inman, admittedly insolvent, from which the defendants.have appealed, as appears from the certified copy of notice of appeal duly served and filed with the clerk of this Court.\\nIt is a delicate power, to be exercised only upon a clear showing of abuse of discretion or power, for a justice of this Court, upon an ex parte application, to interfere with an order of a Circuit Judge, passed after full argument upon both sides, it is a serious matter also to embarrass the operations of a state ofBcers in performing the duties imposed upon him by statute; it should not be done except in a clear case that he has transcended his power.\\nIt appears that on December 14, 1926, the directors of the bank, acting under Section 3981, Vol. 3, Code 1922, passed a resolution requesting the state bank examiner to take and retain sole possession and control of the property and business of the bank for a period not exceeding 30 days.\\nThe meeting of the directors had been called by the examiner for the purpose of considering the condition of the bank. The report of the examiner was submitted to the directors, which showed the hopeless insolvency of the bank.\\nIn pursuance of that resolution, on the same day, the examiner took charge of the assets of the bank, as provided in the section referred to, for a period of 30 days.\\nOn December 29, 1926, within the 30 days, and while in the actual possession of the assets of the bank, the examiner, upon two days' notice, applied to the Circuit Judge presiding in the circuit for the appointment of a receiver, upon the ground of the insolvency of the bank. It does not appear that any objection was raised to the length of the notice given, the respondents appearing resisting the motion, demurring to the petition, and suggesting the name of a receiver, upon failure of their demurrer.\\nThe application for the appointment of a receiver was made under Section 3985, which authorizes the examiner, when he finds that a bank is insolvent, to apply for an order permitting him to take over the affairs of the bank, and to make proper application for the appointment of a receiver. His possession of the assets render it unnecessary to apply for the first order.\\nThe position of the respondents is that, as the examiner was in possession under Section 3981, his only authority under that section was either to consent to the bank's resumption of business or to an order directing its liquidation, and that, upon the signing of such order, the directors ipso facto would become the liquidating trustees of the bank, with the powers and duties conferred by Section 4282, applicable to corporations generally; that he had no authority under these circumstances to proceed under Section 3985.\\nWhile, as pointed out in the case of Brown v. Hammet, 133 S. C., 446; 131 S. E., 612, Sections 3981 and 3985 provide for \\\"two distinct statutory proceedings,\\\" and if either is pursued to a finality the exclusion of the other is complete, there appears no reason why, if the proceeding instituted under Section 3981 should be abandoned, the examiner is precluded from proceeding under 3985. Section 3981 provides that neither the resumption of business nor the liquidation of the corporation can be accomplished without the consent of the examiner; if the proceeding under Section 3985 should be annulled, the respondents would be completely balked under Section 3981 by the examiner's withholding his consent. The fact that he is proceeding under Section 3985 is conclusive evidence that such consent would be withheld. He has evidently concluded that the affairs of the defunct bank can be best administered by a receiver, and I see no reason for interfering with the exercise of his judgment in the matter.\\nIt is highly important that the affairs of the bank be energetically and speedily administered \\u2014 a result which would be seriously embarrassed by the order now applied for.\\nThe motion for a supersedeas is therefore refused.\\nT. P. COTHRAN,\\nAssociate Justice, Supreme Court of South Carolina. Greenville, S. C., January 8, 1927.\"}"

sc/2015080.json

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+"{\"id\": \"2015080\", \"name\": \"BANK OF SWANSEA v. RUCKER ET AL.\", \"name_abbreviation\": \"Bank of Swansea v. Rucker\", \"decision_date\": \"1930-03-21\", \"docket_number\": \"12863\", \"first_page\": \"29\", \"last_page\": \"43\", \"citations\": \"156 S.C. 29\", \"volume\": \"156\", \"reporter\": \"South Carolina Reports\", \"court\": \"Supreme Court of South Carolina\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T20:51:59.054284+00:00\", \"provenance\": \"CAP\", \"judges\": \"Mr. Ci-iiee Justice Watts and Messrs. Justices Brease and StabeER concur.\", \"parties\": \"BANK OF SWANSEA v. RUCKER ET AL.\", \"head_matter\": \"12863\\nBANK OF SWANSEA v. RUCKER ET AL.\\n(152 S. E., 712)\\nMessrs. Bfird & Carroll, for appellant,\\nMessrs. Timmerman & Graham, for respondents,\\nMarch 21, 1930.\", \"word_count\": \"4009\", \"char_count\": \"22534\", \"text\": \"The opinion of the Court was delivered by\\nMr. Justice Coti-iran.\\nThis action was originally instituted in 1925 for the purpose of foreclosing two mortgages which had been executed by the defendant Anna Rucker to the bank; the one dated in 1919, to secure a note of the same date for $2,128.50, covering her undivided interest in a tract of 500 acres, and also her undivided interest in an unimproved lot in the Town of Swansea; the other dated in 1922 to secure a note of the same date for $801.26, covering a tract of 55 acres.\\nThe mortgagor Anna Rucker was the wife of M. J. Rucker, who died in 1916, leaving as his heirs at law the widow and two daughters, Mae, who married William Hutto, and Lillian, who married P. L. Lybrand. Mrs. Hutto and Mrs. Rybrand were made parties defendant to the foreclosure suit, as claiming some interest in the property.\\nThe suit proceeded to judgment against Mrs. Rucker for $3,210.62 and $1,131.15, the amounts due upon the notes referred to, and a decree of foreclosure and sale was signed December 12, 1925. We apprehend, for the reason hereinafter explained, the decree of foreclosure directed the sale of the 55-acre tract as the property of Mrs. Rucker and the undivided interest of Mrs. Rucker in the Swansea lot; it did not direct the sale of the undivided interest of Mrs. Rucker in the 500-acre tract.\\nThe 55-acre tract and the undivided interest (so-called), of Mrs. Rucker in the Swansea lot were bid off by the bank, and deeds therefor properly executed.\\nRecurring to certain events that had in the meantime transpired: The intestate, M. J. Rucker, died seized and possessed of three parcels of real estate \\u2014 a tract of 500 acres, the home place, a tract of 55 acres, and the vacant lot in the Town of Swansea. He was then living with his family upon the 55-acre tract. Shortly after his death the family moved into the Town of Swansea and occupied a rented house. It was agreed by the widow and the two daughters, who were entitled to a third each as heirs at law, that three men be selected to appraise and divide the real estate among them. Witt, the president of the bank, and two others, Haigler and Rast, were selected as appraisers. They had the assistance of one Rister, who appears to have been familiar with the lines. They went upon the lands, and ran a dividing line through the 500-acre tract, allotting one part of it, 219 acres to Mrs. Rybrand and 248 acres to Mrs. Hutto (an apparent shortage of 33 acres), and the 55-acre tract to Mrs. Rucker. Witt and Haigler, two of the appraisers (Rast having died in the meantime), and Rister, who was assisting in the appraisement and allotment, testified that it was the understanding that the girls should be alloted the 500-acre tract and Mrs. Rucker the 55-acre tract and the Swansea lot. There is some controversy as to the allotment of the Swansea lot to Mrs. Rucker, and, as the counsel for the bank do not appear to insist upon this very plausible explanation of the allotments, we will give it no further attention.\\nLater in 1923 deeds were interchanged confirming the allotments above referred to, but they did not include or refer to the Swansea lot.\\nAfter the family had moved from the home tract of 55 acres into the Town of Swansea, Mrs. Rucker borrowed from the bank in 1919 the money represented by the first and larger mortgage, some $2,000, for the purpose of erecting a residence upon the Swansea lot. It was understood by the bank that that was the purpose of the loan which was secured, as stated, by a mortgage covering her undivided interest in the 500-acre tract and her \\\"undivided interest\\\" in the Swansea lot. Mrs. Rucker let the building contract to one Moore, who furnished all of the material, completed the house, and turned it over to her. It has been suggested that the timber for the house came from land owned by the three joint tenants; this theory is inconsistent with the testimony of the contractor, and, if true, is susceptible of the inference that it came from the 55-acre tract which had been alloted to Mrs. Rucker. Later in 1922 she borrowed from the bank about $800 secured by a mortgage upon the 55-acre tract.\\nAfter the foreclosure sale, when the bank had bid off the 55-acre tract and the \\\"undivided interest\\\" of Mrs. Rucker in the Swansea lot, the bank endeavored to get possession of the Swansea lot upon which Mrs. Rucker had built the residence, but was met with the claim of Mrs. Hutto and Mrs. Lybrand that they were entitled to a third each of the Swansea lot, including the house which had been built by their cotenant, Mrs. Rucker.\\nAccordingly, a consent order was passed by the Court on February 8, 1927, setting aside so much of the decree of foreclosure as purported to adjudicate the rights of Mrs. Hutto and Mrs. Lybrand in the Swansea lot, and allowing them to set up their claims to a third interest each therein; this they did by answer. The substance of their contention is that the Swansea lot was not included in the parol partition, and that their interests in it have not been affected by the sale under foreclosure, and that they are entitled to a third each of the entire lot, including the house and improvements placed thereon by Mrs. Rucker; that a division in kind cannot be had, and that the premises should be sold as a whole and the proceeds divided among them and the bank, which had acquired the interest of Mrs. Rucker.\\nThe original action was thus transmuted, so far as the Swansea lot is concerned, into an action for partition among the parties other than Mrs. Rucker, and the real point at issue is whether the bank, succeeding to the rights of Mrs. Rucker, has the right to have the portion of the lot which was improved by her allotted to it, which would give it the benefit of the improvements.\\nBy consent a reference was had and testimony taken. When the case came on for hearing before his Honor, Judge Featherstone, in December, 1928, he signed an order dated January 4, 1929, in which he did not pass upon any of the legal questions involved, but directed simply that a writ in partition be issued, reserving all questions of rights and equities for further determination upon the coming in of the return of the commissioners in partition.\\nThe commissioners made return, dividing the lot into three parts allotting one to each of the tenants in common.\\nThe matter then came on to be heard by his Honor, Judge Townsend, who filed a decree dated March 23 (1929?), in which he held that the improvements inured to the benefit of all the cotenants. He directed that the lot be sold as a whole, and that the proceeds of the sale be applied, first to the payment of the costs and expenses incident to the proceedings in partition and sale, and that the remainder be equally divided between the plaintiff bank and the defendants Mrs. Flutto and Mrs. Bybrand, one-third to each. From this decree the plaintiff bank has appealed to this Court.\\nWhile the evidence is not clear as to the amount of the borrowed money applied by Mrs. Rucker to the construction of the improvements, it is evident that the greater part of it was so applied; and whether all or a part was so applied is a matter that could not affect the question at issue, for, whatever improvements were placed upon the lot, they were placed there by Mrs. Rucker; there is not the slightest evidence that a dollar that went into them was furnished by either of the daughters, or that any part of the common property was appropriated thereto.\\nThe right of the bank to have that portion of the lot improved allotted to it must be worked out, if at all, through the right of Mrs. Rucker to which the bank has succeeded; in other words, if there had been no mortgage and no foreclosure, would Mrs. Rucker have had the right, in the partition of the Swansea lot, to have that portion of it improved by her allotted to her?\\nBefore entering upon a discussion of this issue, it is worthy of observation that the bank's mortgage covered not only the \\\"undivided interest\\\" of Mrs. Rucker in the Swansea lot, but her \\\"undivided interest\\\" in the 500-acre tract, and that the decree of foreclosure did not contain a direction that it be sold. Her interest was one-third, or practically 160 acres, which could have been embraced in the order of sale. This was a distinct benefit to the daughters to whom the 500-acre tract had been allotted at a time when the mortgage covered the interest of the mother which the daughters acquired. This omission was evidently due to the impression of the bank that the oral partition had had the effect of transferring its mortgages to the 55-acre tract and the Swansea lot as the individual property of Mrs. Rucker. If it has not had that effect, it is possible that the bank may yet go upon the undivided interest of Mrs. Rucker in the 500-acre tract. This suggestion is made simply to demonstrate that, under all the circumstances of the case, the daughters will suffer no prejudice by the Court's sustaining the present contention of the bank that the portion improved by Mrs. Rucker be allotted to it; whereas, if it had been insisted upon, there is good ground for holding that the entire lot had been allotted to Mrs. Rucker. It will be seen from the authorities to be cited that the right thus claimed for the improving tenant in common will not be allowed where it would prejudice the interests of the other cotenants.\\nThe rule appears well settled in this State that the right of a cotenant in possession of the common property to be reimbursed for improvements made by him, or in the partition to have the portion of the land improved by him allotted to him, is exceptional, and to maintain it the improving tenant must establish: (1) That he was in possession under an honest belief of ownership; or (2) that to disallow his claim would be inequitable; and (3) that the allowance would result in no inequity to the interests of his cotenants.\\nAmong the earlier cases the rule was announced with rigidity that the claim could not be allowed unless the improving tenant had reason to believe, and honestly believed, that he had the fee-simple title in severalty to the land improved. Williman v. Holmes, 4 Rich. Eq., 475; Scaife v. Thomson, 15 S. C., 337; Annely v. De Saussure, 17 S. C., 389; Johnson v. Harrison, 18 S. C., 604.\\nThe rigidity was greatly modified by the cases of Buck v. Martin, 21 S. C., 590, 53 Am. Rep., 702; Johnson v. Pelot, 24 S. C., 255, 58 Am. Rep., 253; Sutton v. Sutton, 26 S. C., 33, 1 S. E., 19, 23; Shumate v. Harbin, 35 S. C., 521, 15 S. E., 270; and Guignard v. Corley, 147 S. C., 12, 144 S. E., 586, 62 A. L. R., 533, which declare the essentials above stated.\\nIn the case of Buck v. Martin, supra, the mother of a family of children who were cotenants with her of a tract of land erected a house upon the common property into which the family moved and were reared. She knew, of course, that she did not have title to the property, and made no claim that she thought that she did. One of the children conveyed her interest to a creditor; a creditor of this grantee recovered a judgment against him, issued execution, and levied upon and sold the interest of the daughter. The purchaser then brought an action for partition, and the mother claimed the value of the improvements made by her. The Court in an exceedingly human opinion sustained her contention.\\nThe Court, referring to the case of Johnson v. Harrelson, supra, said:\\n\\\"In this last case the principle is announced by the. Chief Justice as follows: 'As a general rule, and in ordinary cases, where the cotenants are all known and easy, of access, and one moves forward without consultation with the others, and erects improvements of his own accord whether desired or not by the others, he does so at his own risk, and such improvements will not be allowed. Where,\\nhowever, improvements have been erected by a co-tenant, which add value to the common estate, and erected under circumstances which would make it a great and obvious hardship upon the improving tenant to deprive him entirely of the benefit of such improvements, throwing their whole value into the common estate for partition, the disposition of the Court of equity has always been to give the improving tenant the benefit thereof as tar as consistent with the equity of his co-tenants. 1 Story Eq. Jur., \\u00a7 655.' It seems to us that the improvements in this case were erected by the mother and her husband, 'under circumstances which would make it a great and obvious hardship upon them to be deprived of the benefit of such improvements, throwing their whole value into the common estate.' \\\"\\nTo further sustain the mother's claim it was said:\\n\\\"We do not regard the rule that the improving co-tenant is not entitled to compensation, as applying to the case where all the co-tenants concur in the improvements. From the peculiar circumstances of this case, we must regard it as belonging to that class of cases. It is true that the children were minors at the time the improvements were made and could not consent for themselves, but they were with their mother, and the family needed a home \\u2014 indeed, it was absolutely necessary. If, at the time, an application had been made to the Court for leave to build a little cottage on the common property as a shelter for the family, can there be a doubt that such application would have been granted by the Court, acting for the children? Ex parte Palmer, 2 Hill Eq., 218; Corbett v. Laurens, 5 Rich. Eq., 316. Then we regard that done which should have been done. It was not the legal duty of the mother or her husband to support the children without the use of their shares. The possession of the mother was also the possession of the children living with her, and of course they have no just claim for rents and profits which they consumed themselves. The plaintiffs have no higher rights than Mrs. Dantzler transferred to Miller & Richey. We think the facts require us to consider the improvements as made with the concurrence of all the cotenants, through the Court acting for them.\\\"\\nIt will be observed that Buck v. Martin was a case in which the improving tenant claimed reimbursement out of the proceeds of the sale; not the right to have the improved portion of the land allotted to her. It is evident that it requires a stronger case to obtain relief of the nature claimed than of the latter. It certainly can work no injustice to the non-improving tenants to allot the improved portion to the improving tenant; it might work great injustice to them to allow a reimbursement in every, case, regardless of the ability or willingness of the cotenants to stand the expense, or to the practical utility of the improvements.\\nIn Johnson v. Pelot, supra, the Court said:\\n\\\"As a general rule, and in ordinary cases, where co-tenants are well known and easy of access, and improvements are made by one without consultation with the others, they are made at the risk of the improving tenant, and will not, as 'matter of right, be allowed him in the partition of the premises (citing cases). \\u2022 Where, however, improvements are made by one co-tenant under the belief that he has in severalty a fee simple title to the premises, or where said improvements have been erected under circumstances which would make it a great and obvious hardship upon the improving tenant to deprive him entirely of their benefit, the disposition of the Court of Equity has always been to give him the benefit thereof if practicable, and as far as consistent with the equity of the cotenants, especially as against the claim of one who subsequently thereto establishes his right as co-tenant.\\\"\\nIn Sutton v. Sutton, supra, the Court said:\\n\\\"It appears by a number of cases that in this State it is established as a rule that a tenant in common, who, of his own head, improves the common property, is not entitled individually to compensation therefor. This seems to be mainly on the ground that he could at any time have partition, and it is his own folly to improve the lands of others who may dislike the improvements, or object, as some Judge has expressed it, to be 'improved out of their estates.' Thurston v. Dickinson, 2 Rich. Eq., 317 [46 Am. Dec., 56]; Dellet v. Whitner, Cheves Eq., 223; Hancock v. Day, Mc-Mul. Eq., 69 [36 Am. Dec., 293]; Thompson v. Bostick, McMul. Eq., 79; Corbett v. Laurens, 5 Rich. Eq., 314. But it is certainly unjust that one shall be enriched at the expense and to the injury of another, and there are several well-established exceptions to the rule. As we understand, it does not apply where the co-tenants consent to the improvements, or if they are necessary for the use and enjoyment of all the co-tenants (Buck v. Martin, 21 S. C., 592 [53 Am. Rep., 702]), or notably when the improvements are made bona fide, under an honest conviction of exclusive ownership of the land. Scaife v. Thomson, 15 S. C., 337, 369.\\\"\\nIn the most recent case upon the subject, Guignard v. Corley, 147 S. C., 12, 144 S. E., 586, 590, 62 A. L. R., 533, the Court said:\\n\\\"It has been held in the following cases that an improving tenant in common must have had reason to believe, and must have honestly believed, that he had the fee simple title in severalty to the land improved, in order to obtain compensation for his improvements on partition (citing cases).\\n\\\"We think, however, that,, notwithstanding the absence of such belief, there may have existed other controlling equitable considerations which would have entitled him to compensation. See note 1 A. L. R., at page 1199.\\\"\\nIn Ferris v. Montgomery Co., 94 Ala., 557, 10 So., 607, 610, 33 Am. St. Rep., 146, the Court said:\\n\\\"A Court of equity will not allow one man to deprive another of the fruits of his labors, and expenditures if such an unconscionable result may be avoided consistently with the security to each of them of the full measure of all that he is entitled to claim. The co-tenant, whether he supposes himself to be the sole owner, or knows that there are others who are owners in common with him, is entitled to occupy and use the property, though his co-tenants fail or refuse to share with him in the enjoyment thereof; and if, in the course of his use and occupation, he makes improvements on a part of the common property, in good faith, and without any intention of embarrassing or obstructing a partition, or gaining an advantage therein, there is no good reason why he should not be allowed to retain the part improved by him, if his improvements in fact do not constitute a hindrance or obstacle in the way of the other co.-tenants getting their full shares on the division of the property. A Court of equity will simply so order the partition as to secure the rights of all parties without visiting an unnecessary hardship upon any of them.\\\"\\nWe think that every essential element in establishing the improving tenant's right to have allotted to her the improved portion of the lot (and by succession the right of the bank) exists in the present case.\\nAlthough we are pretermitted by the appellant's failure to present the contention that the entire lot was allotted in the partition to Mrs. Rucker from adopting that view of the evidence, it is reasonably clear that, when she erected the improvements, it was done under the honest belief that the lot was her own under the parol partition; and, even if we cannot sustain her right to the entire lot, it is evident that she so considered it, which would satisfy one of the essential elements referred to. The cashier of the bank so considered the effect of the partition; Witt, one of the appraisers, testified: \\\"Q. Did you appraise any part for Mrs. Rucker? A. The home place 55 acres and a lot in the Town of Swansea.\\\" Haigler, another of the appraisers, testified: \\\"We walked over the place and divided it equally as near as we could (referring to the 500-acre tract). We just told where the line should go. The house place (the 55-acre tract), and lot in Swansea was to go to Mrs. Rucker and the rest to the two girls.\\\" Rister who accompanied the appraisers as an assistant, testified, referring to Mrs. Rucker: \\\"She told me that they had all agreed for her to take the Home Place and the lot in Swansea and the other tract to be divided between the children.\\\"\\nAnother essential element appears in the fact that the improvements were made at the expense of Mrs. Rucker, no part of which being contributed by either of the daughters, and under the circumstances it would be inequitable to throw her money into the common pot.\\nAnother consideration is that the family had moved from the country into town and occupied a rented house; it was, of course, natural and to the advantage of the entire family that the vacant lot be improved as a home for them; and, as was held in the Buck v. Martin case, doubtless under the circumstances, if application had been made to the Court, authority would have been given to her to do exactly what she did, and, as was held in that case, the improvements will be held to have been made with the concurrence of the other co-tenants.\\nThe important consideration is also presented that to allow the claim would not prejudice in the least the interest of the co-tenants; they have not put a dollar into the improvements, and by a partition in kind the allotment of the improved subdivision to Mrs. Rucker and the other two subdivisions to the daughters would give them all that they ever were entitled to, eliminate the mortgage on the 500-acre tract, and protect the very strong equity of Mrs. Rucker, the improving tenant.\\nWe think under the circumstances that it was error on the part of the Circuit Judge in directing that the entire lot be sold as a whole. The return of the commissioners in partition was exactly right, and is the only way in which the respective rights and interests of the parties can be protected.\\nThe judgment of this Court is that the decree of the Circuit Judge be reversed, and that the case be remanded to the Court of Common Pleas for further proceedings consistent with the conclusions herein announced.\\nMr. Ci-iiee Justice Watts and Messrs. Justices Brease and StabeER concur.\"}"

sc/2028703.json

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+"{\"id\": \"2028703\", \"name\": \"TRUE v. SOUTHERN RAILWAY CO. ET AL.\", \"name_abbreviation\": \"True v. Southern Railway Co.\", \"decision_date\": \"1931-03-17\", \"docket_number\": \"13094\", \"first_page\": \"454\", \"last_page\": \"463\", \"citations\": \"159 S.C. 454\", \"volume\": \"159\", \"reporter\": \"South Carolina Reports\", \"court\": \"Supreme Court of South Carolina\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-11T02:39:38.016800+00:00\", \"provenance\": \"CAP\", \"judges\": \"Mr. Chief Justice Beease and Messrs. Justices StabeEr and Carter concur.\", \"parties\": \"TRUE v. SOUTHERN RAILWAY CO. ET AL.\", \"head_matter\": \"13094\\nTRUE v. SOUTHERN RAILWAY CO. ET AL.\\n(157 S. E., 618)\\nOctober, 1929.\\nMessrs. D. W. Robinson and D. W. Robinson, Jr., for appellant,\\nMessrs. Frank G. Tompkins and Prank B. Gary, Jr., for respondent,\\nMarch 17, 1931.\", \"word_count\": \"1358\", \"char_count\": \"7866\", \"text\": \"The opinion of the Court was delivered by\\nMr. Justice Cothran.\\nThis is an appeal from an order of nonsuit by his Honor Judge Shipp. The action was' for damages on account of alleged false malicious and libelous statements contained in certain certificates and affidavits claimed to have been circulated and published concerning the plaintiff, which he alleged charged him with dishonesty and stealing, in his posi tion as conductor, resulting in damage to his reputation and in his discharge.\\nIt appears that on November 9, 1925, A. H. Plant, assistant to the vice president of the defendant company, wrote to the plaintiff a letter marked \\\"personal,\\\" received by the plaintiff on December 4, 1925, as follows:\\n\\\"As you are aware, checks are being made by the company of transportation revenue returns \\u2014 both tickets and cash fares \\u2014 made by its conductors.\\n\\\"Investigation recently made shows an apparent irregularity in your cash fare returns as follows:\\n\\\"Train No. 23, October 27, 1925. Charlotte to Columbia: It is reported that passengers rode the above train between the points shown below, paid cash fares and did not receive receipts:\\n\\\"Griffith to Pineville; Griffith to Rock Hill; Carhartt to Rock Hill; Chester to Blackstock; Winnsboro to State Park.\\n\\\"No such fares appear on your cash fare reports for that train and date.\\n\\\"The record indicates that prior to the investigation referred to in October, three similar irregularities were found in jrour transportation returns.\\n\\\"These checks now being made will be continued and if the apparent irregularities do not cease, the entire record must be submitted to the proper officer of the operating department for such action as may be justified, which action will be based upon the entire record.\\n\\\"The general chairman of the Order of Railway Conductors has been advised that this caution would be given and has requested that he be furnished a copy of it which is agreeable to us, if you do not object. Unless we hear from you to the contrary, within fifteen (15) days from this date, it will be assumed that there is no objection on your part, and we will furnish a copy hereof to such general chairman.\\\"\\nTo this letter the plaintiff made no reply, and a copy of it was sent to the chairman of the Order of Railway Conductors to which the plaintiff belonged.\\nOn July 13, 1928, W. F. Cooper, superintendent of the company, wrote a letter to the plaintiff as follows :\\n\\\"Investigation having developed what appear to be irregularities in the handling of transportation on trains entrusted to your charge, you are hereby notified to attend an investigation to be conducted by Mr. J. H. Stanfiel, assistant to vice-president, at my office on Monday, July 16, 1928, commencing at 9:00 a. m. The irregularities in question occurred on the following trains and dates: (Here followed a list of the 'irregularities,' with the dates and train numbers when and on which they were supposed to have occurred, closing with this statement) : If it is your desire to have a representative with you at the investigation in question we shall be glad if you will arrange for such person as you desire to represent you to be with you at. the place, on the date and at the hour mentioned above.\\\"\\nIn compliance with this notice the plaintiff appeared at the office of the superintendent of the railway in Columbia, S. C., on July 16, 1928. There were present at the hearing: J. H. Stanfiel, assistant to vice-president; A. H. Plant, assistant to vice-president; W. F. Cooper, superintendent; J. W. Connelly, chief of police; R. F. DeRamus, general superintendent; Ruther Gordon, chief of police; J. F. Trazzare, special agent. At that meeting, Mr. Moore, general chairman of the Order of Railway Conductors, represented Conductor True, Mr. Moore, during the investigation, asked questions on behalf of the plaintiff.\\nThe investigation was called in response to the obligation of the company under its agreement with the Order of Railway Conductors which provided:\\n\\\"Conductors, flagmen, baggagemen, brakemen, yardmen and switchtenders will not be discharged or demerited without an investigation, which will be made by proper officer within five days, if possible, and in their presence. They will have the privilege of bringing to the investigation to assist them a conductor, flagman, baggageman, brakeman, yardman or switchtender, as the case may be, of their own selection, provided such person is employed and is in good standing on the division. If found blameless, they will be paid for the time lost. If discharged, they will be furnished with a letter showing cause of dismissal, term of service and capacity in which employed. If demerited, they will be furnished with a written notice of same.\\\"\\nIf the company had discharged the plaintiff without complying with this provision, it would have subjected itself to a suit for damages.\\nThe investigation then proceeded in an orderly fashion; no objection was interposed by the plaintiff upon any ground; he was present represented by the chairman of his order, who was given full opportunity of examination and cross-examination; he made no request for time and expressed his ability to meet all charges of which he was fully informed. They were specifically stated and thoroughly threshed out by statements supported by reports and affidavits and every opportunity given the plaintiff to answer them.\\nIt will be observed that the basis of the plaintiff's claim to libel and slander was the matter brought out in the investigation, instituted in his interest and according to the provisions of the agreement with his order.\\nThe ruling of his Honor, Judge Shipp, in passing upon the motion for nonsuit is clear and comprehensive ; it meets with the approval of this Court and will be reported.\\nThat the communications during the investigation were privileged appears beyond controversy. Switzer v. Exp. Co., 119 S. C., 237, 112 S. E., 110, 26 A. L. R., 819, 25 Cyc, 393, Note 46, L. R. A. (N. S.), 104; Billings v. Fairbanks, 136 Mass., 177; Palmer v. Hammerston, Cab. & El., 36; Laughlin v. Schnitzer (Tex. Civ. App.), 106 S. W., 908; Warr v. Jolly, 6 Car. & P., 497; Haynes v. Leland, 29 Me., 233; Patterson v. Frazer (Tex. Civ. App.), 79 S. W., 1077; Louisville Times Co. v. Lancaster, 142 Ky., 122, 133 S. W., 1155; Beeler v. Jackson, 64 Md., 589, 2 A., 916; Middleby v. Effler (C. C. A.), 118 F., 261; Christopher v. Akin, 214 Mass., 332, 101 N. E., 971, 46 L. R. A. (N. S.), 104; Chalkley v. R. Co., 150 Va., 301, 143 S. E., 631; Polk v. R. Co., 156 Ark., 84, 245 S. W., 186, 29 A. L. R., 220; Gattis v. Kilgo, 140 N. C., 106, 52 S. E., 249; Newell on Libel and Slander, 477; Missouri Pac. R. Co. v. Richmond, 73 Tex., 568, 11 S. W., 555, 4 L. R. A., 280, 15 Am. St. Rep., 794; White v. Nicholls, 3 How., 266, 11 L. Ed., 591; Moore v. Manufacturers' Nat. Bank, 123 N. Y., 420, 25 N. E., 1048, 11 L. R. A., 754; Lewis v. Chapman, 16 N. Y., 369; Lewis v. Carr, 178 N. C., 578, 101 S. E., 97; Adam v. Ward (Eng.), Ann. Cas., 1917-D, 249; Elmore v. R. Co., 189 N. C., 658, 127 S. E., 710; Caulfield v. R. Co., 170 La., 155, 127 So., 585; Chesapeake Ferry Co. v. Hudgins (Va.), 156 S. E., 429.\\nFurthermore, it does not appear that the defendant in its investigation went beyond the legitimate scope of the enquiry or committed any act therein from which a malicious intent could be inferred. See Chesapeake Ferry Co. v. Hudgins, supra; Fitchette v. Sumter Hardwood Co., 145 S. C., 53, 142 S. E., 828.\\nThe judgment of this Court is that the judgment of the Circuit Court be affirmed.\\nMr. Chief Justice Beease and Messrs. Justices StabeEr and Carter concur.\"}"

sc/2031355.json

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+"{\"id\": \"2031355\", \"name\": \"BYRD v. SHELL ET AL.\", \"name_abbreviation\": \"Byrd v. Shell\", \"decision_date\": \"1933-03-06\", \"docket_number\": \"13594\", \"first_page\": \"226\", \"last_page\": \"231\", \"citations\": \"169 S.C. 226\", \"volume\": \"169\", \"reporter\": \"South Carolina Reports\", \"court\": \"Supreme Court of South Carolina\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-11T00:38:34.724025+00:00\", \"provenance\": \"CAP\", \"judges\": \"Mr. Chief Justice Brease and Messrs. Justices StabrEr and Carter concur.\", \"parties\": \"BYRD v. SHELL ET AL.\", \"head_matter\": \"13594\\nBYRD v. SHELL ET AL.\\n(168 S. E., 692)\\nApril, 1931.\\nMessrs. Richey & Richey, for appellant,\\nMr. O. L. Long, for respondent,\\nMr. R. R. Babb, for other respondents.\\nMarch 6, 1933.\", \"word_count\": \"501\", \"char_count\": \"2814\", \"text\": \"The opinion of the Court was delivered by\\nMr. Justice Bonham.\\nAction was brought in the Court of Common Pleas for Raurens County for the purpose of having construed the wills, and codicils thereto, of Charles Irby and Sarah Irby, and for judgment for settlement of their estates. It was referred to H. S. Blackwell, Esq, to hear and determine the issues of law and of fact. Upon the coming in of his report, the matter was heard by Hon. C. C. Eeatherstone, Circuit Judge, upon exceptions thereto. In due time Judge Eeather stone filed his decree confirming the report of the referee. The appeal from that decree is by the executor alone; none of the devisees under the respective wills, nor any other party in interest, has appealed.\\nThe executor appeals for the reason, as stated by his counsel, that, if the Circuit decree had ordered certain land to be sold, instead of decreeing it divided in kind, appellant would have collected commissions on the land so sold.\\nAlong with the hearing on the merits of the appeal, this Court heard a motion, of which due notice had been given, to dismiss the appeal on the ground that appellant had no interest in the suit which entitled him to appeal.\\nSection 773, Vol. 1, Code 1932, declares that any party aggrieved may appeal. The appellant here is not aggrieved by the judgment of the Circuit Court, which deals with and declares the rights and interests of the parties to the action. He is only a party in a representative capacity. If the land were sold which he contends should have been sold, it would not have benefited him. The sale would have been made by the master, and the proceeds distributed by him, and the commissions on the sale would have gone to him.\\nThere seems to be no direct authority in this jurisdiction on this exact point, but respondent's counsel has in his excellent brief cited a number of apt authorities from the decisions of Courts of other jurisdictions. We quote one or two of them:\\n\\\"The right to appeal as a party 'aggrieved' does not extend to' executors who have obtained a judgment construing a will as to which of two parties is entitled to a certain bequest where the alleged claimants acquiesce in the decision.\\\" Warren Bryant et al., Executors, v. Thompson, 128 N. Y., 426, 28 N. E., 522, 13 L. R. A., 745.\\n\\\"The Executor cannot appeal as such from a decree of settlement and distribution although he is a legatee.\\\" In re Marrey's Estate, 65 Cal., 287, 3 P., 896.\\nThe appeal must be dismissed.\\nThe Court is satisfied with the decree of the Circuit Judge. Let it be reported.\\nMr. Chief Justice Brease and Messrs. Justices StabrEr and Carter concur.\"}"

sc/2034201.json

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+"{\"id\": \"2034201\", \"name\": \"STATE v. HOLMES\", \"name_abbreviation\": \"State v. Holmes\", \"decision_date\": \"1933-10-27\", \"docket_number\": \"13705\", \"first_page\": \"8\", \"last_page\": \"17\", \"citations\": \"171 S.C. 8\", \"volume\": \"171\", \"reporter\": \"South Carolina Reports\", \"court\": \"Supreme Court of South Carolina\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T22:56:28.908352+00:00\", \"provenance\": \"CAP\", \"judges\": \"Messrs. Justices Stabler, Carter and Bonham and Mr. Acting Associate Justice W. C. Cothran concur.\", \"parties\": \"STATE v. HOLMES\", \"head_matter\": \"13705\\nSTATE v. HOLMES\\n(171 S. E., 440)\\nMessrs. C. M. Edwards and L. D. Jennings, for appellant.\\nMr. Frank A. McLeod, Solicitor, for the State.\\nOctober 27, 1933.\", \"word_count\": \"3142\", \"char_count\": \"17857\", \"text\": \"The opinion of the Court was delivered by\\nMr. Chief Justice Blease.\\nJames Holmes, Willie Evans and Esther Robinson, all colored, were indicted and tried together, in the Court of General Sessions for Sumter County, for the crime of murder, growing out of the alleged killing by the defendants of Nora Franklin, by strangulation.\\nThe defendant, Holmes, was, usually called \\\"Donnie\\\" Holmes; Evans very often went by the name of \\\"Mottie\\\" Evans; and the woman, Esther Robinson, bore the nickname of \\\"Queenie.\\\"\\nNeither of the defendants engaged counsel. The Court assigned counsel for each of them. L- D. Jennings, Esq., and C. M. Edmunds, Esq., appeared for Holmes; W. M. Levi, Esq., and George D. Levy, Esq., represented Evans; and Messrs. Epps & Epps defended Esther Robinson. The record discloses clearly and fully that all these attorneys, who received no compensation for their services, ably and efficiently performed their duties, and endeavored at every stage of the trial to see that their respective clients received the fair and impartial trial guaranteed to them by the Constitution of this State and of the United States.\\nUnder the theory of the State, all of the defendants were principals in the murder, it being claimed that all of them were present at the time of the alleged homicide, and participated therein. And the prosecution sought to show that the motive for the crime was to enable Holmes to collect $125.00 on account of an insurance policy on the life of the deceased, wherein Holmes, her nephew, was named as the beneficiary. Alleged oral statements, in the nature of confessions, on the part of all three of the defendants were introduced by the State.\\nEach of the defendants pleaded not guilty. All of them testified in the trial. Willie Evans and Esther Robinson gave damaging testimony against their codefendant, Holmes.\\nThe result of the trial, before his Honor, Judge Stoll, and a jury, was the acquittal of Esther Robinson; a verdict of guilty of murder with recommendation to mercy as to Willie Evans, and his sentence to life imprisonment; and a verdict of guilty of murder as to James Holmes, and his sentence to death by electrocution.\\nThe appeal to this Court is on the part of James Holmes alone. Since he was not financially able to have printed the record in the case, on motion of his cousel, this Court has permitted typewritten records to be presented, and has acceded to the request that the appellant be not held to a strict compliance with the rules of the Court.\\nThe appellant has presented four exceptions. The first, second and third of these relate to the admission of testimony. The fourth challenges certain instructions of the trial Judge to the jury. Since the complaint as to the charge has some bearing upon the correctness of the rulings as to the admission of the testimony, which the appellant says was erroneously received, we consider; first the fourth exception.\\nIn the main charge, before the jury were directed to retire for the purpose of the consideration of the case, the Circuit Judge gave them the following instructions : \\\"Now, I charge you, where two or more persons are being tried for the same offense, they are known as what we call codefendants, and if one of them takes the stand, which he has a right under the law to do, to testify, he .can testify only to such things as relate to the case under trial. But if his testimony relates to one of his codefendants, you cannot consider the testimony as against them. You only consider it as against the defendant who is testifying. For instance, Mr. Foreman, A, B and C are tried together. A takes the stand and admits his part, and says things that incriminate himself, and also incriminate B and C, the jury could consider it as to A, but could not consider it as to B and C, because they are co-defendants.\\\"\\nNear the conclusion of the charge, Mr. R. D. Epps, of counsel for Esther Robinson, took the position that the charge as to the testimony of codefendants, above quoted, was erroneous. After some argument of the law on the subject, the presiding Judge decided to let the instructions stand as they had been given. Mr. Jennings, of counsel for the appellant, then announced that he agreed with the position taken by Mr. Epps. After the jury had retired, Mr. Epps presented to the Judge some authorities which he thought sustained his position, apparently being among them the case of State v. Blue, 118 S. C., 127, 110 S. E., 111. The jury, desiring to have some of the testimony in the case read to them, were brought into the courtroom. After the reading of that testimony, the trial Judge charged them further as follows: \\\"Mr. Foreman and Gentlemen, before you retire, after thinking over the matter, I am afraid I committed an error in my general charge to you relative to the testimony of the defendants. I want to strike out that part where I stated testimony of the defendants could not be considered as evidence against a codefendant, and 1 instruct you this, that the testimony of the defendants\\u2014 you are to be the judges of the credibility of the defendants as any other witnesses and you are the sole judges of what weight you give to the testimony of the defendants, as you are the judges of the weight you give the testimony of any other witness. I think that makes it clear what I am trying to correct. You may retire if that is all you want.\\\"\\nThe appellant now says that the instructions first quoted were erroneous. Fie says, also, that the last instructions did not correct the previous error, and that thereby the law on the subject was left \\\"in a confused state,\\\" and that the effect of the instructions was a declaration that the testimony of a codefendant could not be considered for or against another codefendant, and he was prejudiced in his trial by failure of the Judge to adequately correct the error into which he had first fallen.\\nThe instructions first given by the trial Judge were erroneous. While there may have been an indication in the opinion of the Court iii the case of State v. Franks, 51 S. C., 259, 28 S. E., 908, that a defendant, in the trial of a criminal case, could not testify in behalf of a codefendant, jointly tried with him, it is entirely clear from the able opinion of Mr. Justice Hydrick, for this Court, in the later case of State v. Kennedy, 85 S. C., 146, 67 S. E., 152, 155, that such is not now the law in this State. The Court said in the Kennedy case that the decision in the Pranks case \\\"was rested upon other grounds\\\" than the holding there indicated as to the testimony of a codefendant.\\nIn the Kennedy case, Mr Justice Hydrick construed the effect of the provisions of Section 64 of the Criminal Code of 1902 (now contained in Section 1011 of the Code). The language of the statute is this: \\\"In the trial of all criminal cases, the defendant shall be allowed to testify (if he desires to do so, and not otherwise) as to the facts and circumstances of the case.\\\" The distinguished jurist said: \\\"The common-law doctrine [as to the testimony of codefendants] has been abrogated by statute in this State.\\\" He further said: \\\"Under the terms of the statute, any of a number of defendants jointly indicted and jointly tried would have the right 'to testify as to the facts and circumstances of the case,' and the language of the statute does not certainly in express terms limit his competency to testify only in his own behalf. We think the intention of the Legislature was to remove the common-law disability of incompetency of defendants in criminal cases by reason of being parties to the record, or of being interested in the result, and put them upon the same footing as other witnesses. Hence it has been held that, when a defendant goes upon the witness stand, he 'thereby subjects himself to all the incidents of a regular witness, and his general reputation for veracity may be impeached; that he is subject to the usual duties, liabilities, and limitations of witnesses.' State v. Peterson, supra [35 S. C., 279, 14 S. E., 617].\\\"\\nWhile the Kennedy case was not expressly referred to in the later case of State v. Cooler, 112 S. C., 95, 98 S. E., 845, 846, it is evident the principles announced by Mr. Justice Hydrick in the former case were followed in the later. In that case, Cooler and Davis were indicted and tried together for the crime of murder. In the appeal, Cooler complained of the admission of statements made by his co-defendant, Davis, in the testimony of the latter, which statements, evidently, were damaging to Cooler. Judge Fraser, in speaking for this Court, used this language: \\\"We say Davis was a witness, and had the right to make his statement, even if it' included a statement that his codefendant had done the killing.\\\"\\nIn State v. Blue, supra, the appellant and others had been indicted and tried together on a charge of the crime of grand larceny. In passing upon exceptions as to the admission of statements of one of the defendants made out of the Court, Mr. Justice Watts, for this Court said: \\\"In addition to this he [the codefendant whose statements were objected to] testified in his own behalf; and his evidence, wherein he implicated the other defendants, was certainly competent to go to the jury for their consideration as to the guilt or innocence of all of the defendants.\\\"\\nIn addition to the authorities cited, the case of State v. Peterson, supra, and the case of State v. Adams, 49 S. C., 414, 27 S. E., 451, tend to sustain the declarations of Mr. Justice Hydrick.\\nWhile the learned Circuit Judge committed error in the instructions he first gave to the jury as to the testimony of codefendants, that error was likely very beneficial to the appellant. As stated before, the testimony given by his two codefendants was very damaging to the appellant. His testimony had little, if any, effect as to the charges against the other two defendants, for the appellant, apparently claiming that he was drunk and insane at the time of the commission of the crime charged against him, testified that he had no recollection of the occurrence, if he had any part in the killing of the deceased, his aunt.\\nThe later instructions, to our mind, were entirely sufficient to clear up the error committed in the main charge, and they were in accord with the law as has\\nbeen seen from our references to the cited cases. The law is, when two or more persons are indicted and tried together for the commission of the same crime, and one of the defendants voluntarily testifies in the trial, as he has the right to do, then the jury are to be the judges of the credibility of that defendant as a witness,.and of the weight and effect, of his testimony, not only for or against himself, but for or against all, or either of his codefendants in the case. The charge of the trial Judge, as corrected, clearly declared that law. It was not only his right, but it was the duty of the trial Judge, when he discovered that he had committed an error in his instructions, to make the necessary correction. See Lumpkin v. Mankin, 136 S. C., 506, 134 S. E., 503. It is not to be overlooked, too, that the correction in the instructions was given at the request of the appellant's counsel. If the correction, in the mind of that counsel, was not sufficiently clear, he should have asked for further instructions.\\nThe first exception relates to the testimony of Officer J. D. Chandler, a witness for the- State, as to statements, in the nature of a confession as to his part in the crime, made by the defendant Willie Evans, referred to in the testimony by the officer as \\\"Mottie\\\" Evans. In detailing the statements made to him by Evans, the officer was allowed to repeat what that defendant had told him of the part taken by the appellant, Holmes, in the alleged murder. It is contended that it was improper to admit the statements, or confessions, of Evans, made in the absence of the appellant, in which acts and words of the appellant, implicating him in the crime, were included, since the appellant could not, under the law, be affected or bound thereby.\\nThe exact point has been decided against the position taken, for in the case of State v. Jeffords, 121 S. C., 443, 114 S. E., 415, the Court, through Mr. Justice Fraser had this to say: \\\"The next assignment of error is in allowing confessions of Harrison and Treece to be introduced in evidence, in so far as they contained accusations of Jeffords. The rule is very clear that the confessions must be given as made. If we strike out any part, then the confession ceases to be the confession as made. The rule in such cases is clearly to let all the defendant said be given, and the jury cautioned not to consider' it against any one, except the man who makes it.\\\" (Italics ours.)\\nIn the case at bar, several times during the taking of the testimony, the trial Judge repeatedly told the jury that they were to consider any statement, or confession, made out of the Court by either of the defendants only as to the defendant making it, and not against any other defendant. In his charge, he likewise fully instructed the jury.\\nThe third exception complains of error in permitting the solicitor, on his cross examination of the defendant Willie Evans, to ask that defendant, generally, of acts and words of the appellant, having some bearing upon the killing' of the deceased, and particularly as to the alleged attempt of the appellant, as testified to by Evans, to poison the deceased, by giving her whiskey containing Paris green, upon an occasion some weeks before the death of the deceased occured from strangulation. The cross examination complained of was entirely proper. When a defendant voluntarily elects to be a witness in his own behalf, he thereby assumes the position of any ordinary witness, and he may be cross examined as any other witness. See numerous cases, so holding, cited in the annotation to Section 1011 of the Code of 1932. The defendant Evans elected to go upqn the witness stand. When he did so, he subjected himself to the right of cross examination on the part of the solicitor. The appellant had the right, also, to cross examine Evans, and his counsel exercised that right. The appellant had the right, too, by his testimony, or the testimony of any other witness, to contradict, in the proper manner, the testimony of Evans, given either on his direct examination, or on his cross examination. See State v. Adams, supra.\\nThe specific objection made in the argument of the appellant that it was error to admit the testimony of Evans, as to the previous attempt on the part of the appellant to poison the deceased, on the ground that it was error for the prosecution to endeavor to show the commission of another and distinct crime by the appellant, cannot be sustained. If the appellant attempted to poison the deceased, as testified to by Evans, proof of that act by him was clearly competent to go to the jury as evidence of the malice, as known to the law, of the appellant toward the deceased, and of his desire to take her life.\\nThe appellant's second exception charges error in the Court permitting the introduction of the insurance policy on the life of the deceased, in which' the appellant was named as beneficiary, without formal proof of the execution by the insurance company of the policy, and allowing the witness for the State, Officer Chandler, to testify regarding some of the contents of that policy, as related to him by the appellant. The record shows that when Mr. Chandler was testifying he related what the appellant had told him as to the part he had in the killing of the deceased. The witness testified as to statements of the appellant, tending to show that he had strangled to death his aunt that he, as the beneficiary of a life insurance policy on her life, might collect the insurance provided to be paid therein. The insurance policy, having been procured, was in the hands of Mr. Chandler at the time of one of his conversations with the appellant. The appellant identified the policy to Mr. Chandler and he identified it in the Court as having been identified by the appellant. The appellant, in his testimony, practically admitted the identification of the policy formerly made by him. The statements of the appellant to Mr. Chandler, as to certain terms of the policy, related by Mr. Chandler in his testimony, corresponded with the terms of the policy produced in the Court. The policy and the testimony of Mr. Chandler, as to what the appellant had told him regarding it, were clearly admissible. There was never any question as to the execution and delivery of the policy by the insurance company; no issue in the case required any formal proof of its execution, and none was necessary.\\nIn addition to giving special attention to the exceptions of the appellant, and the parts of the record relating to those exceptions, we have read carefully the entire record in the case. We have not found anywhere any error which calls for a'reversal of the judgment against the appellant. The charge of the trial Judge has especially impressed us. He instructed the jury fully on all phases of the law which could .have had any possible bearing in the case. The appellant certainly had a fair and impartial trial. Not only have his own attorneys and the trial Judge seen to that, but the solicitor and the officers of the law have contributed to that end. The evidence against the appellant was strong. The terrible situation confronting him is the result of his own conduct.\\nThe judgment of this Court is that the judgment below be, and the same is hereby, affirmed.\\nMessrs. Justices Stabler, Carter and Bonham and Mr. Acting Associate Justice W. C. Cothran concur.\"}"

sc/2036250.json

@@ -0,0 +1 @@
+"{\"id\": \"2036250\", \"name\": \"STATE EX REL. JOHN M. DANIEL, ATTORNEY GENERAL, ET AL. v. DAVIS\", \"name_abbreviation\": \"State ex rel. Daniel v. Davis\", \"decision_date\": \"1934-05-15\", \"docket_number\": \"13850\", \"first_page\": \"62\", \"last_page\": \"63\", \"citations\": \"173 S.C. 62\", \"volume\": \"173\", \"reporter\": \"South Carolina Reports\", \"court\": \"Supreme Court of South Carolina\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-11T01:04:04.814858+00:00\", \"provenance\": \"CAP\", \"judges\": \"Mr. Chief Justice BeEase, Messrs. Justices StabeEr, Carter and Bonham and Mr. Acting Associate Justice W. C. Cothran concur.\", \"parties\": \"STATE EX REL. JOHN M. DANIEL, ATTORNEY GENERAL, ET AL. v. DAVIS\", \"head_matter\": \"13850\\nSTATE EX REL. JOHN M. DANIEL, ATTORNEY GENERAL, ET AL. v. DAVIS\\n(174 S. E., 927)\\nMessrs. H. K. Townes and B. P. Martin, for petitioners,\\nMessrs. J. Prank Bfps and C. S. Bowen, for respondent,\\nMay 15, 1934.\", \"word_count\": \"225\", \"char_count\": \"1317\", \"text\": \"Per curiam.\\nThis action, brought in the original jurisdiction of the Court, is in the nature of quo warranto \\\"to try the title of the defendant to the office of superintendent of the county home of Greenville County.\\\" Upon examination of the record, made up of the pleadings, notices, and affidavits filed in the case, we find that additional evidence is necessary, there being disputed matters of fact, for a proper disposition of the questions presented. While the Court might exercise its power, as is suggested, to frame and certify to the Circuit Court issues for the determination of questions of fact, we think, for satisfactory reasons, that the better and more expeditious plan would be to dismiss this proceeding, without prejudice to the rights of the plaintiffs to bring an action in the Court of Common Pleas for Green-ville County, if they be so advised, for hearing and determination in that Court of the matters here sought to be litigated. And it is so ordered.\\nMr. Chief Justice BeEase, Messrs. Justices StabeEr, Carter and Bonham and Mr. Acting Associate Justice W. C. Cothran concur.\"}"

sc/2041316.json

@@ -0,0 +1 @@
+"{\"id\": \"2041316\", \"name\": \"FORD v. BALL\", \"name_abbreviation\": \"Ford v. Ball\", \"decision_date\": \"1935-11-11\", \"docket_number\": \"14169\", \"first_page\": \"111\", \"last_page\": \"117\", \"citations\": \"178 S.C. 111\", \"volume\": \"178\", \"reporter\": \"South Carolina Reports\", \"court\": \"Supreme Court of South Carolina\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T21:37:54.821696+00:00\", \"provenance\": \"CAP\", \"judges\": \"Mr. Chief Justice Stabeer and Messrs. Justices Carter, Bonham and Baker concur.\", \"parties\": \"FORD v. BALL\", \"head_matter\": \"14169\\nFORD v. BALL\\n(128 S. E., 319)\\nMr. C. B. Ruffin, for appellant,\\nMr. Henry C. Jennings, for respondent,\\nNovember 11, 1935.\", \"word_count\": \"1000\", \"char_count\": \"5682\", \"text\": \"The opinion of the Court was delivered by\\nMr. Justice Fishburn#.\\nThis is an appeal from an order of his Honor, Judge Shipp, overruling a demurrer to the complaint, made on the ground that the complaint does not state facts sufficient to constitute a cause of action. The action was brought for the recovery of damages growing out of the alleged breach of a contract affecting the purchase and reconveyance of a tract of land in Tee County, accomplished and accompanied by fraudulent acts.\\nA careful examination of the allegations of the complaint leads us to the conclusion that it is legally sufficient in its averments. The complaint, which will be reported, contains allegations appropriate to an action for breach of contract accompanied by fraud. The exceptions, imputing error to the trial Judge, direct our attention in the main to Paragraph 3 of the complaint, and stresses the failure of the respondent to demand from the appellant at Bishopville the written statement embodying the alleged agreement for the reconveyance of the tract of land in question, and failure of the respondent to tender to the appellant the amount agreed upon. ,\\nUnder the agreement alleged in this case, it was the duty of the appellant to deliver the written agreement, whether or not it was called for by the respondent. The demurrer admits the truth of every well-pleaded allegation contained in the complaint. The appellant, therefore, admits that he agreed to reconvey the tract of land upon the terms set forth in the complaint, and that- upon receiving a deed for the property from the respondent, he would deliver to her a written statement, binding himself to reconvey. He admits, as alleged in the complaint, that she fully performed her part of the agreement, and that he seized all of the crop made on the property during the year 1930, valued in excess of the sum of $200.00, which, under the agreement, was more than sufficient to pay the first installment on the repurchase agreement. He admits that he violated the terms of the agreement for the purpose and with design of cheating and defrauding her out of the benefits resulting to her under the contract; that he carried the deed to her for execution, without intending to comply with his agreement; and that he had no intention of delivering the written statement of agreement at the time he promised he would do so, but made the promise with intent to violate it, and for the purpose of inducing the plaintiff to execute and deliver the deed to him. He admits that with the purpose and intent of defrauding the plaintiff and depriving her of her beneficial rights under the contract, he sold and conveyed away one acre of the land which he was under contract with the plaintiff to reconvey to her, knowing that by making such conveyance it would be impossible for him to comply with the terms of his contract. He further admits that he dispossessed the plaintiff, and has himself gone into possession of the lands in question, and that his breach of the alleged contract was accomplished by the fraudulent acts alleged against him in the complaint.\\nWelborn v. Dixon, 70 S. C., 108, 49 S. E., 232, 3 Ann. Cas., 407, is in point. In that case the plaintiff conveyed to Dixon a tract of land as security for a debt, with the agreement that upon payment of the debt the defendant would reconvey the land to the plaintiff. Thereafter the defendant conveyed the said land to a third person, and thereby made it impossible for him to comply with the terms of the agreement, and it was held that the conveyance of the land under these circumstances constituted an act of fraud which accompanied the breach of the contract. In this case, as the defendant did in the case of Welborn v. Dixon, supra, the appellant conveyed a part of the land to a third person, thus putting it out of his power to comply with his contract, and this conveyance of a part of said land is one of the fraudulents acts alleged in the complaint, which, if true, would constitute a breach of the contract accompanied by a fraudulent act.\\nIn the case of Palmetto Bank & Trust Company v. Grimsley et al., 134 S. C., 493, 133 S. E., 437, 439, 51 A. L. R., 42, it was held that:\\n\\\" 'When a promise is made with no intention of performance and for the very purpose of accomplishing a fraud, it is a most apt and effectual means to that end, and the victim has a remedy by action or defense.' Goodwin v. Horne, 60 N. H., 485.\\n\\\" 'A promise is usually without the domain of the law, unless it creates a contract, but if made when there is no intention of performance, and for the purpose of inducing action by another, it is fraudulent, and may be made the ground of relief.' Herndon v. Durham & S. R. C., 161 N. C., 650, 77 S. E., 683.\\\"\\nThe demurrer admits the truth of the facts alleged in the complaint, and the complaint specifically alleges that the plaintiff has fully performed on her part the obligations of the alleged agreement. This being admitted, the plaintiff has stated a cause of action. Bailey v. Savannah Guano Company, 101 S. C., 445, 86 S. E., 7.\\nHaving reached the conclusion that the complaint states facts sufficient.to constitute a cause of action based on the fraudulent breach of a contract, it follows that the judgment of the Circuit Court should be affirmed.\\nAll exceptions have been considered, and are overruled. It is the judgment of this Court that the judgment of the Circuit Court herein be, and the same hereby is, affirmed.\\nMr. Chief Justice Stabeer and Messrs. Justices Carter, Bonham and Baker concur.\"}"

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+"{\"id\": \"2049208\", \"name\": \"MONROE v. WOOD\", \"name_abbreviation\": \"Monroe v. Wood\", \"decision_date\": \"1938-04-06\", \"docket_number\": \"14660\", \"first_page\": \"507\", \"last_page\": \"517\", \"citations\": \"186 S.C. 507\", \"volume\": \"186\", \"reporter\": \"South Carolina Reports\", \"court\": \"Supreme Court of South Carolina\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-11T00:06:25.205213+00:00\", \"provenance\": \"CAP\", \"judges\": \"Mr. Chiee Justice Stabeer and Messrs. Justices Baker and Fishburne concur.\", \"parties\": \"MONROE v. WOOD\", \"head_matter\": \"14660\\nMONROE v. WOOD\\n(197 S. E., 39)\\nDecember, 1936.\\nMr. A. F. Woods, for appellant,\\nMr. Joe P. Lane, for respondent,\\nApril 6, 1938.\", \"word_count\": \"3512\", \"char_count\": \"19773\", \"text\": \"The opinion of the Court was delivered by\\nMr. Justice Boni-iam.\\nDecember 30, 1929, the plaintiff entered into a written contract with the defendant, I. T. Wood, which provided for the lease by I. T. and S. P. Wood to M. M. Monroe of their two-thirds interest in an ice manufacturing plant in the Town of Tatta, S. C. The plaintiff already owned a one-third interest in the plant. Subsequent to the execution of the contract, I. T. Wood acquired the interest of S. P. Wood in the property leased to Monroe, and assumed all of the obligations of S. P. Wood under the contract.\\nThe contract of lease included the building and machinery. It also provided that I. T. Wood and S. P. Wood would sell ice to Monroe at the rate of 25 cents the hundred pounds delivered at Tatta. Another provision of the contract was that I. T. and S. P. Wood should have the right at any time to remove and convert to their own use any of the machinery and appliances in the ice manufacturing plant at Tatta, they to be charged with one-third the cost price of any such machinery or appliances thus removed. The contract was to run for one year, with the option to Monroe of renewing it for four years longer. At the end of the first year M. M. Monroe exercised his option and renewed the contract for four years. Monroe agreed to pay as rent for the leased premises the sum of $240.00 a year, payable $20-.00' per month. Monroe continued to occupy the leased premises for the months of January, February, and March after the expiration of the lease on December 30, 1934. At the end of March, 1935, Wood informed Monroe that he would charge him more for ice, whereupon Monroe vacated the premises and brought suit against Wood. This action was begun May 16, 1935, and sought to recover damages in the sum of $1,454.10-; the items of damages alleged were, the failure of Wood to pay Monroe his share of the cost of the machinery and appliances removed by Wood from the leased premises, and $1,454.10, which loss plaintiff incurred when defendant breached the contract, and plaintiff was forced to buy his ice at Dillon and haul it to Latta.\\nTo this complaint defendant duly answered. April 15, 1936, the plaintiff served an amended complaint, containing the additional allegations that by reason of the breach by defendant of the contract to deliver ice to plaintiff at Datta, plaintiff was compelled to haul his ice at a cost of $1,316.30, that the ice which he got from defendant was of inferior quality, and by reason of its loss in weight he suffered a further loss of $1,640.00; that the total sum due to plaintiff by defendant is $4,616.37. That, after deducting therefrom rent for five years, $1,200.00, and $608.30 paid plaintiff for his share of the cost of the machinery, making a total credit of $1,808.30, there remained due to plaintiff by defendant the sum of $2,808.30.\\nThe answer to the amended complaint was a general denial; that if there was any defect in the ice \\u2014 which is denied \\u2014 the quality was obvious to .plaintiff and could have been discovered by plaintiff, yet plaintiff accepted and used it. Further, defendant set up by way of counterclaim, the right to recover of plaintiff the $1,478.48 arising out of the transaction between the parties under the contract between them. The following items are set out in the answer to the amended complaint:\\nRental of machinery for four years............$ 139.20\\nAmount paid Cox for plaintiff................ 472.32\\nFive years' rental under contract............... 1,200.00\\nUnpaid ice account......................... 601.90\\nTown of Datta taxes . 6.40\\n$2,419.82\\nDess credit for machinery . 941.31\\n$1,478.51\\nThe case came on for trial before Judge Dennis and a jury.\\nAt the conclusion of all the testimony, counsel for the defendant made a motion for a directed verdict as to the item of $1,640.00' which plaintiff claims he suffered by reason of the inferior quality of the ice which the defendant sold him.\\nThe motion was made on the ground that if there was any defect in the ice plantiff saw it, admits that it was obvious, yet he accepted it and paid for it. The motion was refused, the Court saying: \\\"The question in my mind that inclines me to submit the matter to the jury is that this man \\u2014 it wasn't like where he could go into a store and buy ice or any other ice plant \\u2014 he either had to get the ice from this defendant or go out of business. That might bring an element that probably might require me submitting that to the jury.\\\"\\nThe jury found for plaintiff.\\nMotion for new trial was made on the following grounds:\\n\\\"1. The testimony being uncontradicted that the alleged defects in the quality of the ice were obvious, and that the plaintiff nevertheless accepted the ice with full knowledge of its alleged defective quality, if any, were waived as a matter of law, thereby precluding any recovery on account of defective quality. Consequently the Court was in error in submitting as questions to be passed upon by the jury the issues of defective quality and waiver.\\n\\\"2. The Court in any event was in error in submitting as questions to be passed upon by the jury the issues of defective quality of the ice and waiver, insofar as the dealings of the parties after the first year of the contract were concerned, because the testimony is wholly undisputed that the plaintiff voluntarily exercised his own option to continue the contract in effect after the first year, and to buy for cash and accept the defendant's ice, in spite of the fact that the alleged defective quality of the ice was obvious and at all times well known and fully appreciated by him.\\n\\\"3. If the Court properly submitted as questions to be passed upon by the jury the issues of alleged defective quality of the ice and waiver for the period covered by the first year of the contract, nevertheless the Court was in error under any view of the case in so charging the jury that these questions could be considered for the whole period of the contract, because in any event there was plainly a waiver as a matter of law of the alleged defective quality after the first year of the contract, when the testimony showed wholly without any dispute that the plaintiff voluntarily exercised his own option to continue the contract in effect after the first year and to buy for cash and accept the defendant's ice, in spite of the fact that the alleged defective quality of the ice was obvious and at all times well known and fully appreciated by him.\\n\\\"4. The verdict of the jury was inconsistent with the instructions of the Court, and plainly contrary to the weight of the evidence.\\\"\\nThe motion was refused. The appeal comes to this Court on nine exceptions.\\nWe shall consider those issues which pertain to defective ice and waiver by plaintiff of such defect \\u2014 if it existed \\u2014 by accepting and using it, it being an obvious and patent defect by plaintiff's own admission. We set out the exceptions which relate to this issue:\\n\\\"1. The Court erred in overruling defendant's motion for a directed verdict in his favor as to plaintiff's claim of loss and damage on account of alleged defective ice for the reasons stated in defendant's motion, to wit: because the testimony shows without contradiction or dispute that the defects, if any, were obvious and known to the plaintiff,- and that he nevertheless accepted and used the ice, thereby waiving the defects, if any, as a matter of law.\\n\\\"2. The Court erred in charging the jury so as to submit as questions to be passed upon by the jury the issues of alleged defective quality of the ice and waiver or non-waiver thereof, because the testimony was uncontradicted that the alleged defects in the ice were obvious, and that the plaintiff nevertheless accepted and used the ice with full knowledge and appreciation of the alleged defects, thereby waiving the defects, if any, as a matter of law, and precluding any right to recovery on account of the alleged defects.\\n\\\"3. If the Court properly submitted as questions to be passed upon by the jury the issues of alleged defective quality of the ice and waiver or non-waiver thereof for the period covered by the first year of the contract, nevertheless the Court erred under any view of the case in so charging the jury that these questions could be considered for the whole five-year period of the contract, because in any event there was plainly a waiver by plaintiff as a matter of law of the alleged defective quality of the ice after the first year of the contract, in that the testimony showed wholly without any dispute or contradiction that the plaintiff voluntarily exercised his own option to continue the contract in effect after the first year and to buy (wholly for cash after the second year), and accept and use the defendant's ice in spite of the fact that the alleged defective quality of the ice was plainly obvious and well known and fully appreciated by the plaintiff at all times, both at the time he exercised his option to extend the contract and thereafter.\\\"\\nThe appellant states the questions made by his appeal, along the line of our consideration, as follows:\\n1. Was there error in refusing defendant's motion for a directed verdict or a peremptory instruction to the jury to find in defendant's favor as to plaintiff's claim based on an alleged defective quality of ice sold to plaintiff by the defendant ?\\n2. Was there error in the charge to the jury as to plaintiff's claim based on defective ice?\\nThere was no issue to submit to the jury as to whether the ice was defective. Plaintiff said it was defective to such an extent that it was patent and obvious to him all the time he was buying it. The motion for directed verdict made by defendant as to this claim of defective ice was that even if the ice was defective plaintiff had waived that defect by accepting the ice and using it. That was a question of law which should have been decided by the Judge. Instead, he left it to the jury to say whether if the plaintiff could not buy ice elsewhere than from defendant he had waived the defects in the ice. We do not think that is the law in this jurisdiction. For many years the Courts here, and elsewhere, have held that one seeing and knowing the defect in a commodity nevertheless receives it, he cannot afterwards complain of the defects.\\nIn the case of Griggs-Paxton Shoe Co. v. Friedheim & Bro., 133 S. C., 458, 131 S. E., 620, it appears that the merchant Friedheim had bought shoes from the plaintiff. They came in bound boxes and were put in the warehouse and not inspected for thirty days. When inspected, Friedheim undertook to reject them, and returned them to the shipper. When sued for the purchase price, among other defenses, he claimed that he was entitled to a reasonable time to inspect the shoes. The case went to the jury and judgment went against Friedheim. On appeal this Court said, inter alia (page 623) :\\n\\\"It is a matter of common knowledge in this state that the fall trade is at its best in the time covered by the period during which these goods were kept in the store of the defendant, and, as a matter of law, this court holds that the defendant, having kept them during a period of more than one month, is deemed to have accepted them and waived any defect either of workmanship or of quality. To hold otherwise would subject the seller to the whims of the purchaser.\\n\\\"This does not violate the rule that this is ordinarily a question of fact to be left to the jury. When there is no dispute about a fact, and it is subject to only one reasonable inference, there is no longer anything for the jury to determine.\\\" (Italics added.)\\nIf the plaintiff had refused to accept the ice which he claims was defective, he would have had a cause of action against defendant for all relevant damages he may have suffered. But when for five years he accepted daily the alleged defective ice and used it he waived his right to sue for damages. As Mr. Acting Associate Justice Purdy said in the Friedheim case, supra: \\\"To hold otherwise would subject the seller to the whims of the purchaser.\\\"\\nIn the case of Woods v. Cramer, 34 S. C., 508, 13 S. E., 660, Mr. Justice Mclver, for the Court said (page 663) : \\\"We think there is as little doubt that, even if the goods did not in fact correspond with the sample, yet if the defendants accepted them, they would be liable for the contract price; for, while the defendants would have had the right to reject the oats if they did not substantially compare with the samples by which they were sold, yet if they nevertheless chose to accept them, that would be a waiver of their right of rejection and they would be bound to perform the contract to pay the stipulated price.\\\"\\nIn the case of Little et al. v. Veneer Mfg. Co., 130 S. C., 372, 126 S. E., 42, this is found in syllabus 2: \\\"Buyer, having accepted and paid full contract price of lumber, could not recover damages on theory that lumber failed to conform to specifications.\\\"\\nIn the case of Smith Bros. Grain Co. v. Adluh Milling Co., 128 S. C., 434, 122 S. E., 868, this was said (page 871) : \\\"The buyer has, of course' a reasonable time within which to inspect the goods; but if he knows of the defects, or accepts them without inspection after the lapse of a reasonable time, he is held to have waived all objections to their condition.\\\"\\nIn the case of Brooke v. Milling Co., 78 S. C., 200, 58 S. E., 806, 125 Am. St. Rep., 780, this occurs (page 808) : \\\"By acceptance of the goods, the defendant waived the right to allege inferiority of quality which was obvious to him.\\\"\\nIn Building Supply Company v. Jones, 87 S. C., 426, 69 S. E., 881, this is found (page 882) : \\\"The general rule is that if, before acceptance of goods, material variance from the quality contracted for is so obvious that the purchaser has observed it, or by ordinary inspection would have observed it, and nevertheless accepted the goods, he will be held to have waived the variance from the quality he was entitled to demand.\\\" Citing Woods v. Cramer, and Brooke v. Milling Co., supra.\\nIn the case of Richmond Metal Works v. Haley, 157 S. C., 426, 154 S. E., 412, it was announced (page 415) : \\\"Where the alleged defect or inferiority is obvious, or may be discovered by reasonable inspection or examination before acceptance, the purchaser, by accepting the goods, waives the right to allege inferiority of quality which was obvious to him.\\\" Citing cases.\\nIn the case of Bond Bros., etc., v. Claussen's Bakeries, 184 S. C., 95, 191 S. E., 717, 113 A. L. R., 675, filed June 4, 1937, Mr. Justice Baker, delivering the opinion of the majority of the Court, said (page 719) :\\n\\\"This principle, by reason of the facts of the cases heretofore coming before this Court, has been applied to quality only, but it does not require even an extension of the principle to make it applicable also to quantity, and we can see no good reason why it should not as well apply to quantity. Respondent takes the position that, in fact, the case of Greenwood Mill v. Tolbert, 105 S. C., 273, 89 S. E., 653, Ann. Cas., 1917-C, 338, is authority for this position. Inferentially, this may be true, although a careful reading of this case will not bear out such a conclusion.\\n\\\"In the Greenwood Mill-Tolbert case, the defect was latent and hidden, and the purchaser was unable to detect the defect at the time of purchase. In the case under consideration the 'defect' was 'on the surface,' and readily ascertainable by the respondent. And in this case the defense of estoppel by waiver is pleaded, it being appellant's contention that any loss which respondent may have suffered was due to the negligence of respondent in failing to count the deliveries of bread when made, well knowing, as shown by the testimony, that appellant had no means of knowing\\u2014 of more than suspecting, in a most general way \\u2014 that the deliveries were short; and respondent having an absolute, easy, and open manner and method of ascertaining if the correct and accurate deliveries were actually being made, and having failed to use even ordinary care, it has waived any question as to the quantity of the deliveries, and is thereby estopped from maintaining an action therefor.\\\"\\nThe cases of Southern Coal Company v. Rice, 122 S. C., 484, 115 S. E., 815; Brooke v. Milling Co., supra; Woods v. Cramer, supra; Vanderhorst v. McTaggart, 2 Bay, 498; Griggs-Paxton Shoe Co. v. Friedheim & Bro., supra; Mitchell v. McBee, 1 McMul., 267, 36 Am. Dec., 264, are cited in support of the conclusion of the opinion.\\nIt seems wholly useless to cite other authorities to establish the postulate that it is the rule long established in this jurisdiction that: \\\"That if one accept an article the defect of which is obvious, or discernable upon reasonable inspection, and nevertheless accepts the article, he waives the right to complain of the patent defects.\\\"\\nWe repeat that if it be true that the ice sold plaintiff by defendant was defective, and plaintiff cannot be heard to say that it was not because he and his witnesses specifically swear that it was, and he predicates his complaint in part on that allegation, and it is not possible for him to deny that the defect was obvious, for he has so declared on oath, then the only question submitted to the Court by defendant's motion for a peremptory instruction to the jury, was one of law and should have been granted.\\nThe respondent cites, as against the array of authorities above cited and quoted, the case of Youmans v. Chisolm, 165 S. C., 337, 163 S. E., 884. We can find in this case nothing pertinent to the issue of waiver made in the present case.\\nAnd this observation applies with equal force to the case of Gaillard v. Gaillard, 175 S. G, 297, 311, 179 S. E., 41, quoted by respondent.\\nRespondent relies on the case of Griffith v. Newell, 69 S. C., 300, 303, 48 S. E., 259. The essential difference between that case and the one we are considering is that the Newell case grew out of a contract Newell made with the directors of the South Carolina penitentiary, by which the directors contracted to hire to him a certain number of convicts to work on his farm. When he went for them, they gave him fewer than the number contracted for, but promised he should have the others when they were available. Each time they called on him for the pay of those he had, he paid with the understanding that he would get the other convicts under his contract. Finally, when he refused to pay longer, he was sued, and defended by saying that the failure to get all his convicts caused him to lose his crop. The State replied by saying you have waived your right by paying for what you got. It was then that the Court held that a man who was continually demanding his rights could not be held to have waived them.\\nThere was no question of patent or obvious defect in a commodity, as is the question in the present case. Day after day for five years Mr. Monroe received, accepted, and paid for, and used ice, a commodity of commerce, which he claims was defective.\\nThe doctrine of waiver, shown by the numerous authorities we have cited and quoted, conclusively shows that his claim for damages now cannot be sustained.\\nWe hold that the motion for peremptory instruction made by defendant as to the claim of defect in the ice should have been granted.\\nHaving reached this conclusion, and inasmuch as the case must go back, we prefer not to discuss any other issues in the case.\\nJudgment reversed, and case remanded for retrial.\\nMr. Chiee Justice Stabeer and Messrs. Justices Baker and Fishburne concur.\\nMr. Justice Carter did not participate on account of illness.\"}"

sc/2064299.json

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+"{\"id\": \"2064299\", \"name\": \"DAVIS v. FLEMING ET AL.\", \"name_abbreviation\": \"Davis v. Fleming\", \"decision_date\": \"1941-02-28\", \"docket_number\": \"15222\", \"first_page\": \"343\", \"last_page\": \"357\", \"citations\": \"196 S.C. 343\", \"volume\": \"196\", \"reporter\": \"South Carolina Reports\", \"court\": \"Supreme Court of South Carolina\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T23:06:39.142697+00:00\", \"provenance\": \"CAP\", \"judges\": \"Messrs. Justices Baker and Fishburne and Messrs. Acting Associate Justices L. D. Lide and J. Strom Thurmond concur.\", \"parties\": \"DAVIS v. FLEMING ET AL.\", \"head_matter\": \"15222\\nDAVIS v. FLEMING ET AL.\\n(13 S. E. (2d), 434)\\nMessrs. Wise & Whaley and W. Turner Logan, Jr., for appellant,\\nMessrs. Elliott, McLain, Wardlaw & Elliott and Robinson & Robinson, for respondent,\\nFebruary 28, 1941.\", \"word_count\": \"4016\", \"char_count\": \"23970\", \"text\": \"The opinion of the Court was delivered by\\nMr. Chief Justice Boni-iam.\\nThe plaintiff was employed to do certain painting in the decorating of the Palmetto Theater building at Columbia, South Carolina. The general contract for constructing the building was given to the respondents, except that for the painting and decorating of the interior, which was under an entirely separate contract made by the owners of the building with the Wil-Kin Theater Supply Company. While engaged in the work of painting; the plaintiff fell and sustained serious injuries.\\nThe general contract contains the following provisions:\\n\\\"Article 68. The general contractor is to provide labor and materials necessary to erect, to maintain and remove runways, scaffolding and ladders reaching from the lowest level of the building to the roof which may be required to the full execution of this work, including that of the mechanical or other contractors. The general contractor shall not be required to assume any responsibility in case of accident to any workman in the employ of the mechanical or other contractors which may be either wholly or partly due to the scaffolding used by them. It shall, however, be the duty of the general contractor to erect the runways, scaffolding and ladders in a substantial and adequate manner.\\\"\\n\\\"Article 102. Painting and Decorating. This work will be done under separate contract, but the general contractor shall supply scaffolding for this work as heretofore specified and shall lend reasonable assistance in its execution.\\\"\\nIt is under the provisions of Article 68, .supra, that this action is brought, it being alleged in the complaint that plaintiff was employed by Wil-Kin Theater Supply Company as a painter and it was necessary for him to walk upon a scaffold twenty feet from the floor, which had been erected by the defendants as general contractors under their contract with the owners of the property, which scaffold was intricate in design, and was erected prior to the time the plaintiff began to work. There is the further allegation that one of the uprights broke at a large knothole throwing plaintiff to the cement floor many feet below. That the plaintiff's injuries were due to and caused by the \\\"carelessness, willfulness, wantonness, and negligence of the defendants\\\" in the particulars set out. The plea is for $35,000.00 damages, actual and punitive.\\nFor answer, the defendants set out: (1) A general denial of each and every allegation of the complaint; (2) that plaintiff has been and is receiving compensation from the WilKin Theater Suppty Company, or its insurance carrier, Employers Liability Assurance Corporation, for the injuries he received as a result of such fall, but the defendants particularly deny that this action is brought conformable to the South Carolina Workmen's Compensation Act, Act July 17, 1935, 39 Statutes at Large 1231, but on the contrary allege .that under the facts set forth in the said complaint this action is brought contrary to the said Workmen's Compensation Act; (3) it is further alleged that this action is not brought in the name of the real party in interest and plaintiff has no right to maintain it, because he has accepted settlement under the Workmen's Compensation Act, under the terms of which any right of action accruing to plaintiff would accrue to the Wil-Kin Theater Supply Company, or its insurance carrier, Employers Liability Assurance Corporation, and any action should be brought by the said employer, or-insurance carrier or both. Defendants further pled the contribu tory negligence of the plaintiff and his assumption of the risk of his employment.\\nIt appears from the Record that when the case came before Judge Stoll, plaintiff's attorneys moved to strike from the answer so much of the third, fourth, fifth and sixth defenses as relate to plaintiff's having accepted an award under the Workmen's Compensation Act, which motion was refused. The plaintiff's attorney served notice of intention to appeal from the order of Judge Stoll.\\nIt also appears from the record that the plaintiff, in order to reach a part of the wall where the scaffolding had been removed, with the assistance of a coworker, placed a board approximately eighteen feet in length, twelve inches wide, and two inches thick, with one end thereof resting on the remaining portion of the scaffolding about twenty feet from the floor, and the other end thereof resting upon the balcony; while walking along the board preparatory to painting that portion of the wall to which the scaffolding did not extend, the appellant was precipitated to the floor.\\nWhen the evidence in chief for plaintiff had been heard, the defendant moved for a nonsuit, which motion was denied. When all of the evidence was in, defendant made a motion for directed verdict in its favor, which motion was granted.\\nIt will be observed that the complaint nowhere makes mention of the fact that the plaintiff had made application to the Commission of the Workmen's Compensation Act for, and had been awarded, compensation for the injuries which he had suffered by this fall, and that he had accepted the award. When the defendants by way of answer set up the defense as a bar to plaintiff's action the facts of this award and its acceptance, the plaintiff moved to strike such allegations from the answer, and, as is said hereinabove, plaintiff served notice of intention to appeal from Judge Stoll's order denying the motion to strike. During the trial of the case by Judge Bellinger, plaintiff's counsel sought to introduce evidence tending to show the amount of the award and that it was being paid in monthly installments. The defendants' counsel objected to this testimony and the objection was sustained; the Court holding' it to be irrelevant -to any allegation of the complaint. During the argument on this question, plaintiff's counsel made the statement that the action was brought with the consent of the-party who had paid the award. The Court said: \\\"This action is not dependent on any right of subrogation.\\\" Thereafter, the plaintiff made a motion that the complaint be \\u2022amended by alleging that this action is being brought by the plaintiff for the benefit of the Employers Liability Assurance Corporation, as provided by Section 11 of the South Carolina Workmen's Compensation Act. The Court said: '\\\"I think the most material objection is that by that you are really changing the party in interest, as it appears here now, and I think it comes too late. In other words, you had the opportunity, and you say that you are representing the one who paid the award. That should have been pleaded in the first instance. You are really changing }^our beneficiary, in so far as your pleadings are concerned. I will refuse that motion.\\\"\\nJudge Bellinger's order directing a verdict in favor of respondents is as follows:\\n\\\"The theory of the plaintiff's action here is that he was \\u00abemployed by the Wil-Kin Theater Supply Company, which had an independent contract, that is a contract independent of the Mechanics Contracting Company, to do the painting and decorating in the theater that was being constructed, and that the Wil-Kin Theater Supply Company being an independent contractor on the building, made the Mechanics Contracting Company a third party, and that this action is brought against a third party, as contemplated under the Workmen's Compensation Act.\\n\\\"The plaintiff's further theory is that the Mechanics Contracting Company, under its contract, was to furnish, that is, was to provide labor and materials necessary to erect, maintain and remove runways, scaffolding and ladders reach ing from the lowest level of the building to the roof, which might be required for the full execution of this work, including that of the mechanical or other contractors, and that it should be the duty of the general contractor, that is, the Mechanics Contracting Company, to erect runways, scaffolding and ladders in a substantial and adequate manner, as provided by Section 68 of the specifications introduced in evidence.\\n\\\"The plaintiff takes the position that the Wil-Kin Theater Supply Company was operating under Section 102, headed 'Painting and Decorating', which provides that, 'this work shall be done under separate contract, but the general contractor shall supply scaffolding for this work as heretofore specified and lend reasonable assistance in its execution.'\\n\\\"Now, taking the facts and construing them most favorably to the plaintiff in this action,.we find \\u2014 and most of these but not all are undisputed \\u2014 we find that the Mechanics Contracting Company did build a scaffold upon which the painters and others were to work; that as the work progressed, a part of the scaffolding was torn away, leaving a part of the original scaffold standing; that while the plaintiff, Air. Davis, and a fellow workman, were painting they took a board, and placed one end of that board on a seat tier of the balcony, and the other end on one of the crosspieces of the remaining scaffolding; that while they were employed in their work, the end of the scaffold upon which one end of this board had been placed by Mr. Davis and his fellow workman gave way, and Mr. Davis fell to the floor and was injured.\\n\\\"There is no evidence here that Mr. Davis or anyone connected with the painting contractor there made any request for the placing of a further scaffold, but the plaintiff and his fellow workman undertook to build their own scaffold in the manner indicated. The evidence here is clear and uncontradicted that the plaintiff when injured was not on the scaffold constructed by the Mechanics Contracting\\\" Company, but was on the board which the plaintiff and his fellow workman had placed, with one end on the seat tier In the balcony, and the other end on the remaining part of the scaffold constructed by the Mechanics Contracting Company.'In other words, this was an additional construction of a scaffold, and when I use the term 'scaffold', I do not agree with my friends over there in their interpretation of the term 'scaffolding' just meaning an upright piece, but anything you stand on \\u2014 if it's a swinging scaffold it's tied by a rope, and there are various kinds. A scaffold is anything that is put up for them to reach their work, and it doesn't make any difference how it's constructed. So, as I view the evidence, the uncontradicted evidence in this case, the plaintiff here improperly risked danger to himself, which was a direct and proximate cause of his injury, in constructing the place in which or on which he was to work. That duty was not imposed upon him in the course of his usual duties. When the plaintiff voluntarily constructed the place on which he was working by placing the board with one end on the seat tier and the other on the remaining portion of the scaffold that had been constructed by the Mechanics Contracting Company, he was then and there not working on the scaffold constructed by the defendant here, the Mechanics Contracting Company.\\n\\\"Now, the plaintiff here would be liable, the defendant rather would be liable to the plaintiff only if the plaintiff was injured while working on the scaffold provided by the defendant, and the defendant would not be liable for any injury to the plaintiff where the plaintiff undertook to construct his own scaffold, using a part of the defendant's remaining scaffold. In other words, the defendant couldn't be held liable where the plaintiff was working in a place or on a place not provided by the defendant. The plaintiff here voluntarily constructed the place he was working on, and not the defendant. In other words, the plaintiff created a dangerous place to work, and the dangerous place to work was not created by the defendant. It was the creation of this unsafe place to work by the plaintiff that was the direct and proximate cause of the injury to the plaintiff. In other words, the plaintiff voluntarily created the unsafe place in which he was working. He voluntarily worked in that unsafe place which produced the injury, and if not in whole, contributed to his injury, as a proximate cause, without which the injury would not have occurred.\\n\\\"So, I grant the motion for a directed verdict on the second, the third ground, and upon the reasons which incorporate perhaps further grounds. The reasons I have given perhaps incorporate further grounds than you have set forth in the grounds of your motion.\\\"\\nPlaintiff moved for a new trial, which was refused, and now appeals upon grounds stated in twenty-two exceptions, but which his counsel elect to treat in argument as embodying four questions, viz.:\\n\\\"1. Can this action be maintained under Section 11 of the Workmen's Compensation Act?\\n\\\"2. What was the legal relationship between plaintiff's employer and defendants?\\n\\\"3. Was plaintiff's employer negligent in not providing him with a safe place to work ?\\n\\\"4. Did the Court err in directing a verdict for respondents ?\\\"\\nThe defendants served the following additional grounds to sustain the order of Judge Bellinger:\\n\\\"1. The Court should have granted a nonsuit or directed verdict upon the ground that the defendants were under no obligations to the plaintiff to furnish him a safe place of employment under the provisions of Section 68 and Section 92 of the contract.\\n\\\"2. The Court should have directed a verdict upon the ground that the evidence clearly showed that the plaintiff was guilty of contributory negligence, in that he used scaffolding without making any inspection of it.\\n\\\"3. Upon the ground that the plaintiff having testified that he accepted an award under the Workmen's Compensation Act and having brought this suit in his own behalf, and it appearing from the plaintiff's testimony that the suit was brought in behalf of the plaintiff, this action is barred upon Section 11 of the Workmen's Compensation Act.\\n\\\"4. Upon the ground that under Section 27 of the contract if plaintiff has a claim against these defendants it is a claim under the Workmen's Compensation Act and not a claim enforcible in Court.\\n\\\"5. Upon the ground that if the testimony showed that the action was brought for the benefit of the Wil-Kin Theater Supply Company or its insurance carrier recovery is barred because of the negligence of the Wil-Kin Theater Supply Company in failing to furnish the plaintiff with a safe place to work.\\n\\\"6. Upon the ground that the evidence shows that the plaintiff assumed the risk of his employment and may not recover in this cause.\\\"\\nIn their brief, counsel for appellant say: \\\"This question is raised by our exceptions One, Two, Three, Four and Five, and by defendants' third additional sustaining ground. This is a subrogation suit under Section 11. of the Workmen's .Compensation Act, brought with the insurer's consent and for the joint benefit of the insurer and the injured employee. \\\"\\nWe do not concur in this statement. The complaint is entirely silent of allegation that the action is brought with the consent of the insurer and for the joint benefit of the insurer and the insured employee. On its face the complaint is a tort action at common law brought by the employee to recover damages for injuries alleged to have been sustained by him through the negligence of the defendants. When the defendants, by their answer, set up the defense that the plaintiff had received and accepted an award by the Commissioners of the Workmen's Compensation Act, plaintiff moved to strike from the answer all allegations which relate to an award under the Workmen's Compensation Act, and has appealed from the order overruling this motion. Throughout the trial of the case it was treated as a common-law action in tort, until counsel sought to show by its witnesses the amount and manner of payment of the award. These efforts so to prove were defeated by the action of Judge Bellinger in sustaining objections to the questions. Thereafter, the plaintiff moved to amend the complaint by alleging that \\\"this action is being brought by the plaintiff for the benefit of the' Employers Liability Assurance Corporation, and for himself, as provided by Section 11 of the South Carolina Workmen s Compensation ActA (Italics added.) It is too clear for argument that the action is not brought under Section 11 of the South Carolina Workmen's Compensation Act, which is in these words:\\n\\\"The rights and remedies herein granted to an employee where he and his employer have accepted the provisions of this Act, respectively, to pay and accept compensation on account of personal injury or death by accident, shall exclude all other rights and remedies of such employees, his personal representative, parents, dependents or next of kin, as against employer at common Jaw, or otherwise, on account of such injury, loss of service, or death: Provided, however, That when such employee, his personal representative or other person may have a right to recover damages for such injury, loss of service, or death from any person other than such employer, he may institute an action at law against such third person or persons before an award is made under this Act, and prosecute the same to its final determination; but either the acceptance of an award hereunder, or the procurement and collection of a judgment in an action at law, shall be a bar to proceeding further with the alternate remedy. In all cases where an employer and employee have accepted the Workmen's Compensation Act, as hereinbefore provided, any injury to a minor while employed contrary to the laws of this State shall be compensable under this Act the same and to the same extent as if said minor employee was an adult.\\n\\\"The acceptance of an award under this Act against an employer for compensation for the injury or death of an employee shall operate as an assignment to the employer of any right to recover damages which the injured employee or his personal representative or other person may have against any other party for such injury or death; and such employer shall be subrogated to any such right, and may enforce, in his own name or in the name of the injured employee or his personal representative the legal liability of such other party. If the injured employee, his personal representative or other person entitled so to do, has made a claim under this Act against his employer, and has not proceeded against such other party, the employer may, in order to prevent the loss of his rights by the passage of time, institute such action prior to the making of an award hereunder.\\n\\\"The amount of compensation paid by the employer, or the amount of compensation to which the injured employee or his dependents are entitled, shall not be admissible as evidence in any action brought to recover damages, but any amount collected by the Employer under the provisions oi this Section in excess of the amount paid by the employer, or for which he is liable, shall be held by the employer for the benefit of the injured employee or other person entitled thereto, less such amounts as are paid by the employer for reasonable expenses and attorney's fees when approved by the Commission: Provided, That no compromise settlement shall be made by the employer or insurance carrier in the exercise of such right of subrogation without the approval of the Industrial Commission being first had and obtained.\\n\\\"When any employer is insured against liability for compensation with any insurance carrier, and such insurance carrier shall have paid any compensation for which the employer is liable or shall have assumed the liability of the employer therefor, it shall be subrogated to all the rights and duties of the employer, and may enforce any such rights in its own name or in the name of the injured employee or his\\npersonal representative: Provided, however, Nothing herein shall be construed as conferring upon insurance carriers any other or further rights than those existing in the employer at the time of the injury to his employee, anything in the policy of insurance to the contrary notwithstanding.\\\"\\nWe think the issues suggested by appellant's exceptions and embodied in his brief in four questions are disposed of by the case of Dawson v. Southern Railway Company, filed November 6, 1940, and reported in S. C., 11 S. E. (2d), at page 453. In that case Judge Stoll had said in overruling a demurrer to the complaint: \\\"It appears to me, however, that under Section 11, of the South Carolina Workmen's Compensation Act that the complaint does state a cause of action and that the plaintiff is not barred from maintaining the action set forth therein.\\\" The complaint in that case set forth that the action was brought for the benefit of the brothers of the deceased, \\\"except so much of the recovery as is due the State of South Carolina by reason of the subrogated claim in the sum of Nineteen Hundred and Ninety-one ($1,991.00) Dollars, said claim arising by reason of the payment by the State Hospital of South Carolina to the plaintiffs herein the above amount as workman's compensation under the Workmen's Compensation Act of South Carolina.\\\" Here is direct reference to the fact that the State Hospital had paid the award and was subrogated to plaintiff's right of action, except as to any excess over the amount paid by the hospital. But this Court held that the action would not lie, as it was brought in the name of the representative of the deceased. We quote from that case:\\n\\\" The matter is governed by the specific provisions of Section 11 of the Workmen's Compensation Act, viz., the acceptance by the claimant of the award of the Commission, and its payment by the employer, operates as an assignment to the employer of the plaintiff's cause of action against the doer of the injury to the plaintiff's intes tate and on account of which he died, and for which plaintiff as administrator filed his claim and received his award for compensation. And the Act specifically provides the manner in which the claim thus assigned shall be enforced, viz., in the name of the employer, in the name of the injured party or of his personal representative. Nowhere does the Act give the injured party or his representative the right of action for further damages against the party who inflicted the injury. On the contrary, it explicitly provides, Section 11, in part:\\n\\\" ' that when such employee, his personal representative or other person may have a right to recover damages for such injury, loss of service, or death from any person other than such employer, he may institute an action at law against such third person or persons before an award is made under this Act, and prosecute the same to' its final determination; but either the acceptance of an award hereunder, or the procurement and collection of a judgment in an action at law, shall be a bar to proceeding further with the alternate remedy. ' \\\"\\nWe think the trial Judge should have granted the defendant's motion for directed verdict on the ground that the plaintiff having accepted the award of the Workmen's Compensation Commission is barred from maintaining this action; and the order is sustained upon this additional ground offered by defendants, and also upon the grounds stated in the order.\\nWe think the exceptions of the appellant and the other sustaining grounds of the respondent are covered by the order of Judge Bellinger.\\nThe appellant did not argue his exceptions to the order of Judge Stoll and may be held to have abandoned them. We may say, however, they are without merit.\\nThe order appealed from is affirmed as written, and as amended by the additional ground suggested by respondents.\\nMessrs. Justices Baker and Fishburne and Messrs. Acting Associate Justices L. D. Lide and J. Strom Thurmond concur.\"}"

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+"{\"id\": \"2071617\", \"name\": \"FLOYD v. C. I. T. CORPORATION\", \"name_abbreviation\": \"Floyd v. C. I. T. Corp.\", \"decision_date\": \"1939-11-01\", \"docket_number\": \"14953\", \"first_page\": \"518\", \"last_page\": \"530\", \"citations\": \"191 S.C. 518\", \"volume\": \"191\", \"reporter\": \"South Carolina Reports\", \"court\": \"Supreme Court of South Carolina\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T22:45:59.220601+00:00\", \"provenance\": \"CAP\", \"judges\": \"Messrs. Justices Baker and Fisi-iburne and Mr. Acting Associate Justice G. Dewey Oxner concur.\", \"parties\": \"FLOYD v. C. I. T. CORPORATION\", \"head_matter\": \"14953\\nFLOYD v. C. I. T. CORPORATION\\n(5 S. E. (2d), 299)\\nFebruary, 1939.\\nMessrs. Samuel Want, James S. Verner and Sam Rogol, for appellant,\\nMessrs. McHachin & Townsend, for respondent,\\nNovember 1, 1939.\", \"word_count\": \"3748\", \"char_count\": \"21145\", \"text\": \"The opinion of the Court was delivered by\\nMr. Justice Bonham.\\nPlaintiff brought his action by the service of a complaint which alleged a single cause of action demanding damages in the sum of $3,000.00 on account of the facts, or the incident, set out in the complaint. Defendant moved that plaintiff be required to make his complaint more definite and certain by separating the three causes of action which appellant alleged were jumbled in the complaint. The motion was granted and in due time the amended complaint was served, in which were stated to be three causes of action. Thereupon, the appellant moved that respondent be required to elect upon which of the three causes of action he would go to trial, and that the two causes of action not elected be dismissed. Appellant further moved that if such election be not ordered, then that the second and third causes of action be dismissed and the respondent be limited to the first cause of action. Appellant also demurred to the third cause of action on the ground that it showed no legal injury inflicted upon the respondent and no damages sustained by the respondent as the result of any legal injury. The motion was refused and the demurrer overruled. Hence, this appeal.\\nThere are five exceptions, which appellant holds in its brief to state three questions for consideration, viz.:\\n\\\"I. The demurrer to the thirl cause of action should have been sustained because it shows no injury to or damage sustained by the respondent (Exceptions Nos. 1 and 2).\\n\\\"II. The respondent should have been required to elect upon which of the three causes of action stated in the complaint he will proceed, and the suit should have been dismissed as to the other two causes of action (Exceptions Nos. 2, 3, 5 and 6).\\n\\\"III. The facts set forth in the second cause of action do not show trespass to real estate, as held by the opinion of the lower Court (Exception 4).\\\"\\nUpon the argument of the motion it appears that respondent's counsel suggested in argument that appellant had asked that the causes of action be separated and now objected to the separation. This is not, as appellant's counsel suggest, \\\"sound criticism,\\\" They say: \\\" We are not here objecting to the separation of the causes of action; we are raising at the first available time the point that the separate causes of action cannot be joined in a single complant, because (1) All three causes of action are founded upon the same incident, and give rise to only a single cause of action, in which damages cannot be recovered for loss of the wife's services and for assault and for trespass. (2) The third cause of action, relating to the loss of services of the respondent's wife, on the facts stated, shows no legal injury to or damage suffered by the respondent, and (3) the respondent should be required to inform the appellant in advance whether this case will be tried before a jury as an action for assault, or as one for trespass.\\\"\\nIn the order of Judge Sharkey, on the motion to make the complaint more definite and certain-by separating the several causes of action, from which there is no appeal, he said:\\n\\\"It appears to me that the defendant's motion to make the complaint more certain and definite by separating the several causes of action that may be deduced therefrom is the sound method of requiring the plaintiff to put the defendant on notice of just what character of case the plaintiff intends to make before the jury.\\n\\\" Just as it is impossible for the defendant to know the precise cause of action upon which the plaintiff intends to rely, as the complaint is now drawn, so it is equally impossible for this Court to pass upon the propriety of some of the allegations of the complaint which the defendant seeks to have stricken out, so long as the complaint remains susceptible of construction of setting up several causes of action of a character that are wholly dissimilar.\\\"\\nThis prelude brings us to the consideration of the issue in the case, the solution of which, in our judgment, is decisive of the whole case.\\nHas plaintiff split a single cause of action into three causes of action? If so, his complaint is fatally defective in that shape.\\nThe rule is thus stated in Bliss on Code Pleading, page 155, Section 118, et seq.: \\\"It is a rule that one cause of action \\u2014 as, one springing from a single contract \\u2014 cannot be so split as to authorize more than one action ; and the same rule would make it improper to so divide a single cause of action, by separate statements in one complaint, as to show more than one cause of action.\\\"\\nThe same author says in the same section: \\\"Logically, every wrong furnishes itself a cause of action, but different wrongs may be so blended as to be called a single wrong, as to furnish but a single cause of action, especially with reference to the policy of the law, which discourages a multiplicity of suits. A distinguished common-law Judge in New York says: rAll damages arising from a single wrong, though at different times, make but one cause of action; and all debts and demands already due by the same contract make one entire cause of action.' \\\" (Italics added.)\\nLet us analyze the complaint in this action by the above-stated rule.\\nParagraphs II and III of the first cause of action of the amended complaint state that:\\n\\\"II. That on or about August 16, 1938, at about 3 :00 P. M., one Harper, the agent of the Defendant C. I. T. Corporation, came to the plaintiff's home at Aynor, S. C., and asked if the plaintiff had any money for him to- catch up his payments on his car which was financed through the Defendant, the said Harper at the time acting about the business of and within the scope of his duties for the Defendant C. I. T. Corporation, whereupon the plaintiff informed the said agent that his wife had made a payment of Twenty ($20.00) Dollars to the Defendant a few days before.\\n\\\"III. That the Defendant's agent Harper thereupon told the plaintiff that no such payment had been made and ac cused the Plaintiff's wife of lying in saying that such payment had been made; that upon the plaintiff's telling the said Harper to leave his premises, the Defendant's agent Harper dared the plaintiff to come out of his house; and upon the Plaintiff's informing the said Harper that his wife was ill, the said Harper cursed the Plaintiff and angrily informed the Plaintiff that he intended to take his car; that, upon the Plaintiff starting out of his house and ordering the Defendant's agent Harper to leave his premises, the said Harper again cursed the Plaintiff and refused to leave the premises; that the said Harper then went to his own car and took something which the Plaintiff believes was a revolver out of the pocket of his car, and while holding the said instrument in his pocket in such manner as to appear to have a weapon aimed at the Plaintiff, came back towards the Plaintiff's house, cursing and abusing the plaintiff, and again dared the Plaintiff to come out, saying: 'Damn you, I'll fix you if you come out of the house' and after cursing and threatening the Plaintiff for some time, and further threatening to take away the Plaintiff's car, the said Harper finally left the Plaintiff's premises.\\\"\\nUpon the strength of these allegations, the plaintiff charges that an assault was committed.\\nThe second cause of action cites almost identically the same statement of facts and denominates the action of defendant's agent Harper as a trespass.\\nThe third cause of action sets forth practically the same facts and alleges that because 'of them the plaintiff lost the services of his wife.\\nEach cause of action alleges damages in the sum of $1,-000.00, and there is a prayer for judgment in the sum of $3,000.00.\\nIs there a doubt that the litigation arose out of one incident, one occurrence? That each statement (or cause of action) complains of the same conduct of the agent of the defendant, and, hence, states but one cause of action?\\nThe question here involved has often been before the Courts of this State, and others, and a review of the authorities demonstrates that a clear preponderance of them supports the rule that where the cause of action grows out of one incident, it cannot be split to support more than one.\\n\\\"A single cause of action cannot be split either as to relief demanded or grounds on which recovery is sought .\\\"\\n\\\"Splitting a cause of action is the bringing of an action for only a part of the cause of action.\\\" 1 C. J. S., Actions, page 1306, \\u00a7 102.\\n\\\"The rule against splitting causes of action applies to causes of action arising ex delicto, the rule being that a single wrong gives rise to but one cause of action, for which but one action can be maintained, however numerous the elements or items of damage resulting therefrom may be .\\\" 1 C. J. S., Actions, page 1329, \\u00a7 104.\\nIn the case of Floyd v. American Employers' Ins. Co , 187 S. C., 344, 197 S. E., 385, 387, this is said:\\n\\\"In United States v. Throckmorton, 98 U. S., 61, 25 L. Ed., 93, it is said by the Federal Court that (page 65) 'There are no maxims of the law more firmly established, or of more value in the administration of justice, than the two which are designed to prevent repeated litigation between the same parties in regard to the same .subject of controversy, namely, interest rei publicae ut sit finis litium, and nemo debet bis vexari pro una et eadam causal Hence the principle is uniformly and inflexibly maintained that a judgment for a part of an entire demand is a bar to any other suit for another part of the same demand. A claim which is in its nature entire cannot be split up into several causes of action, and if suit is brought for a part only of the items constituting an entire claim, recovery for that part will bar recovery in any subsequent suit for the residue or any other items of the same demand. Pomeroy v. Prescott, 106 Me, 401, 76 A., 898, 138 Am. St. Rep, 347, 21 Ann. Cas., 574.\\n\\\"The rule invoked is analogous to that which prevails with reference to torts. It is well settled that a single tortious act which causes only personal injuries gives to the injured individual but a single right of action, no matter how varied or numerous the injuries may be. It is equally as clear that but one action may be maintained for a single wrongful or negligent act which destroys or damages numerous items of another's propertjY In harmony with the principle just enunciated, the great weig'ht of authority in this country is to the effect that a single tortious act which causes another to suffer both personal injury and property damage constitutes but one cause of action.\\\" Citing many authorities from this and other jurisdictions.\\nIn the case of Flickner v. One Chevrolet Truck & Trailer, 178 S. C., 53, 182 S. E., 104, 105, it is held that: \\\"The appellant in this case could not split his cause of action for personal injuries and for property damage. Holcombe v. Garland & Denwiddie, Inc., 162 S. C., 379, 160 S. E., 881. The cause of action in each case was concededly the same.\\nIn the case of Holcombe v. Garland & Denwiddie, Inc., supra, this is found (162 S. C., 379, 160 S. E., 883) :\\n\\\"Defendant negligently injured plaintiff's wife and destroyed his horse and buggy. Plaintiff brought action for medical expenses, etc, in treating his wife, for loss of services of wife, damage to property and expense, and joined all in one action. Defendant demurred for misjoinder of action. Overruled.\\n\\\"McClellan, C. J, delivering the opinion on appeal said:\\n\\\" 'We know of no principle of law or decided case which requires him to split this one cause of action into two or more because the injuries he sustained may be diversified in character. To the contrary, he must lay all he has suffered in one action, or, failing in that, he foregoes his claim for such part of the injur)'- as he does not count upon.3 Birmingham So. Ry. v. Lintner, 141 Ala. 420, 38 So. 363, 365, 3 Ann. Cas., 461, found in 109 Am. St. Rep., 40.\\\"\\nThe Court of Appeals of the District of Columbia, in the case of Poling v. Washington Loan & Trust Co., 53 App. D. C., 212, 289 F., 610, 612, clearly states the: rule which we are discussing. True, this decision is not binding on us, but it is pertinent for the purpose of showing how universal is the recognition of the rule that a single cause of action, or delict, cannot be split into two or more causes of action. We quote from the Poling case:\\n\\\" This court in Tribby v. O'Neal, 39 App. D. C. 467, declared it to be 'a familiar rule that one cause of action cannot be split up and sued upon in several suits,3 and the test there announced 'is whether the remedies pursued in two or more suits could have been included in one.3 Although differing from the English rule (Brunsden v. Humphry, L. R. 14 Q. B. Div. 152), we think the practice is well settled in the courts of this country that, though injuries may be diversified in character, if a party is entitled to sue, he may recover in one action all the damages proximately inflicted as the consequence of a wrongful or negligent act.33 Citing numerous authorities, among them Hazard Co. v. Volger, 3 Wyo., 189, 18 P., 636.\\n\\\"In the Hazard Case the suit was for damages to person and to property arising from the explosion of a powder magazine, in which the cause of action was set forth in the petition in three separate counts. On this point the court said:\\n\\\" 'Upon what principle of pleading it was deemed proper, or even advisable, to attempt a division of one cause of action into three distinct and separate causes, is not easily perceived. The complaint is of injury resulting from the explosion of powder. The fact that a part of those injuries consisting in the wounding of the wife, a part in the destruction of furniture, and a part injury to a house, cannot be regarded as a proper reason for setting forth each specific injury in a separate count or paragraph as an independent cause of action. There may be various elements of damage inflicted upon a person by the performance of one illegal act, but the act affords the cause of action or complaint. It is a legal unit, and is not the subject of subdivision because sundry injuries may result from it.' \\\"\\nIn the case of Threatt v. Brewer Mining Co., 49 S. C., 95, 26 S. E., 970, there is an exhaustive and clear consideration and elucidation of the facts which led to the announcement by this Court of the rule: \\\"A complaint for damages and injunction, which alleges several elements of damage, states but one cause of action.\\\"\\nThe plaintiff (Threatt) brought action to recover damages for injury to his lands by reason of the operation of defendant mining company.and for injunction. The case is thus stated in this Court's opinion: \\\" What the plaintiff in the case at bar really seeks is to prevent the defendant, through its milling operations, from invading his right of property. The injury to his bottom lands is one element in this invasion of his right of property; the injury to his right to water his stock in the stream is another element; the injury to pure air at his home is another element; the injury to his fishing privilege in such stream is another element; the injury to the two neighborhood roads is another element; the injury to his ditches another element; and the injury to the air he breathes while in his bottom lands is another element. All these elements enter in to complete the alleged wrong to plaintiff by this defendant through his milling operations. The circuit judge evidently took this view of the complaint when he overruled this objection to it. We take the same view of this matter, and therefore, overrule these two exceptions.\\\"'\\nThe Circuit Judge had held that the complaint had stated but one cause of action.\\nIn the case at bar the trial Judge, in overruling the demurrer and denying defendant's motion, held that the matter is controlled by Matheson v. Telegraph Co., 137 S. C., 227, 135 S. E., 306. Clearly this is an error of citation. That case is not concerned with the question then before the Court. There is a case of Matheson v. Am. Tel. Co., 125 S. C., 297, 118 S. E., 617, 618, which does relate to the question, but we think that the trial Judge erred when he held that it controlled the decision in this case.\\nIn that case the complaint stated two causes of action; one for trespass growing out of an incident which it is alleged occurred in September, 1922, and one for abusive language which it is alleged by the complaint to have occurred October 16, 1922. A motion was made to require the plaintiff to state these causes of action separately. The motion was refused. On appeal this order was reversed. The Court said: \\\"In the appeal from the order refusing the motions of the defendants, there are four exceptions, but they raise the single point that the complaint contains two separate and distinct causes of action, namely, a cause of action for injury and damage to the premises and realty of plaintiff, and a cause of action for injury and damage to the person of the plaintiff upon another occasion than the trespass; and that for that reason the defendants were entitled to an order requiring the plaintiff to amend the complaint, making it more definite and certain by separately stating two causes of action.\\\" (Italics added.)\\nWe have underscored the language of the opinion which marks the difference between that case and this with which we are now concerned. We continue the quotation from the opinion as follows: \\\"It is obvious that the complaint contains two separate and distinct causes of action against the defendants. In the first four paragraphs the plaintiff seeks to recover for an alleged willful and wanton trespass upon the premises of the plaintiff and the consequent injury and damage to the realty resulting therefrom; in paragraphs 5 and 6 she seeks to recover for a trespass to her person, resulting from an altercation which occurred some two weeks after the alleged trespass and damage to the realty, and alleges that from the conduct of the defendant's agent at that time she sustained serious and severe personal injuries. In these two paragraphs there is no allegation of a trespass upon the realty or of any damage to it. In the one case the remedy at common law' would have been trespass vi et armis, and in the other, trespass against the person.\\\" Citing cases.\\nContinuing the quotation:\\n\\\"It is contended by the respondent that (apparently assuming that the complaint contains two separate and distinct causes of action) this form of slovenly pleading is permissible under what is known as the 'jumbling statute,' section 216 [now Sect. 484] of the Code, subdivision 2, which is as follows:\\n\\\" 'In all cases where two or more acts of negligence or other wrongs are set forth in the complaint, as causing or contributing to the injury, for which such suit is brought, the party plaintiff in such suit shall not be required to state such several acts separately, nor shall such party be required to elect upon which he will go to trial, but shall be entitled to submit his whole case to the jury under the instruction, of the court and to recover such damages as he has sustained, whether such damages arose from one or another or all of such acts or wrongs alleged in the complaint.'\\n\\\"The plain words of the statute negative the idea that two or more causes of action may be 'jumbled.' [Italics added.]\\n\\\" 'Where two or more acts of negligence or other wrongs are set forth in the complaint as causing or contributing to the injury for which suit is brought, the party plaintiff in such suit shall not be required to state such several acts separately.'\\n\\\"The relief from the requirement of separate statement is only when there has been one injury and there have been two or more acts which may have caused or contributed to it. In the case at bar, it is alleged that there were two injuries ; and while as to each it will not be necessary to state separately the several acts which caused or contributed to it, that is very far from permitting the commingling of two causes of action which have no connection with each other and neither of which can be said to have caused or contributed to the other.\\\"\\nWe think the trial Judge in our case was in error in overruling defendant's demurrer and denying his motion on the ground that they were controlled by the case of Matheson v. Telegraph Co., supra, and by Section 484 of the Code.\\nAnd the Court was in error in refusing- to grant the motion of the defendant that the plaintiff be required to elect upon which cause of action he would go to trial, and that the other two causes of action be dismissed.\\nThe judgment of the lower Court is reversed and the case is remanded to that Court for such action as is in accord with the rulings herein contained.\\nMessrs. Justices Baker and Fisi-iburne and Mr. Acting Associate Justice G. Dewey Oxner concur.\\nMr. Chief Justice Stabrer concurs in result.\"}"

sc/2087297.json

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+"{\"id\": \"2087297\", \"name\": \"DUCKER v. DUNEAN MILLS ET AL.\", \"name_abbreviation\": \"Ducker v. Dunean Mills\", \"decision_date\": \"1951-01-22\", \"docket_number\": \"16455\", \"first_page\": \"465\", \"last_page\": \"473\", \"citations\": \"218 S.C. 465\", \"volume\": \"218\", \"reporter\": \"South Carolina Reports\", \"court\": \"Supreme Court of South Carolina\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T18:35:42.643688+00:00\", \"provenance\": \"CAP\", \"judges\": \". Baker, C. J., and Fishburne, StukEs, Tayeor and Oxner, JJ-, concur.\", \"parties\": \"DUCKER v. DUNEAN MILLS ET AL.\", \"head_matter\": \"16455\\nDUCKER v. DUNEAN MILLS ET AL.\\n(63 S. E. (2d) 314)\\nMessrs. Haynsworth & Haynsworth, of Greenville, for Appellants,- Dunean Mills and Liberty Mutual Insvirance Company,\\nMessrs. Mawn, Arnold & Mann, of Greenville, for Respondent, Aetna Casualty & Surety Company,\\nMessrs. Culbertson & Foster, of Greenville, for Respondent, Marie Ducker, Employee.\\nMessrs. Haynsworth \\u25a0& Haynsworth, of Greenville, for Appellants, Dunean Mills and Liberty Mutual Insurance Company, in Reply,\\nJanuary 22, 1951.\", \"word_count\": \"2489\", \"char_count\": \"14311\", \"text\": \"PER CURIAM.\\nPrior to January 1, 1948-, the Aetna Casualty & Surety Company was the Workmen's Compensation carrier for the Dunean Mills. On January 1, 1948, this coverage was as sumed by the Liberty Mutual Insurance Company. During the year of 1947, the respondent, Mavis Ducker, was employed as a textile worker at Dunean Mills, and received an injury in November of 1947. At that time the Aetna Casualty & Surety Company was the insurer. The injury occurred when a shuttle flew off a loom and hit her-on the left side or peripheral area of the head, towards the rear of the skull. On May 10, 1948, while Liberty Mutual Insurance Company was the carrier, the respondent was again injured when a shuttle flew off a loom and hit her in the left temple or temporal region of the head. As a result of these accidents the respondent, Mavis Ducker, filed a claim with the Industrial Commission.\\nThe existence of a compensable injury is not at stake. The issue before this Court is whether the November injury, while Aetna Casualty & Surety Company was the employer's carrier, was the sole cause of respondent's disability, or did the two injuries in combination produce the disability. In the second question there is the problem of whether the second injury, in May of 1948, aggravated the first.\\nThe Single Commissioner found that the respondent had been temporarily and totally disabled from May 10, 1948, until the date of the hearing, that both injuries combined to cause the disability and both carriers should equally share compensation payments and medical expenses. The employer and the insurance carriers appealed to the Full Commission and on November 29, 1949, the award of the Single Commissioner was affirmed and made the opinion and award of the Full Commission.\\nWithin due time the employer and its carriers appealed to the Court of Common Pleas, which appeal, by consent, was transferred to the Greenville County Court, and heard by Honorable W. B. McGowan, Judge of that Court. Judge McGowan sustained the appeal of the Aetna Casualty & Surety Company, dismissed it from the action, and held the liability to be that of the Liberty Mutual Insurance Com pany, the carrier for Dunean Mills in May, 1948, on the basis that the second accident definitely aggravated any condition which may have been caused by the first accident, and since there was no apparent disability and diminution of earning capacity until the second accident, the first carrier, having surrendered the risk on or about January 1, 1948, should be discharged.\\nIt will be observed that the issue in this Court, on appeal, is between the two carriers. Mavis Ducker is entitled to compensation and it has to be paid by one or both of the carriers. The Aetna Casualty & Surety Company, for the purposes of this appeal, is the respondent, and the Liberty Mutual Insurance Company the appellant, although neither is referred to as respondent or appellant.\\nAfter careful study of the record, the conclusion has been reached that the injury of November, 1947, is the sole cause of the disability. This means the Full Commission and the County Court of Greenville are both in error and the liability is that of Aetna Casualty & Surety Company.\\nThe November inqury happened while respondent was working on the third shift. The accident was reported when she finished her shift. The shuttle from the loom struck her on the left side or peripheral area of the head and broke the skin or caused an abrasion which was painted by the nurse on duty. She did not go to a doctor until the second accident, but in about one month, as related by respondent, the site of the injury started bothering her, a \\\"knot\\\" formed thereon which gradually became sorer and sorer. The November injury continued to bother respondent until and beyond the May, 1948, accident. When this second accident occurred, she reported to the nurse who referred respondent to the' company physician, Dr. J. G. Murray. In concultation, she told Dr. Murray about the first blow and he then, started treating it.\\nDr. Murray lanced or incised the \\\"knot\\\" formed from the November lick and treated the area of the May blow, which was swollen and tender. Respondent says she did not receive any relief from the incision but it became worse, \\\"It made it sore and it swelled worse than it was before he operated.\\\"\\nIn describing the November injury the respondent said: \\\"I did not notice it until the first of the year that there was a knot formed up there. It kept hurting and I noticed that there was a knot up there, and it got touchy. If I touch it, it just runs all over me. It is so quickie I can hardly touch it now. It did all the time I was working up until May.\\\"\\nThe respondent, in relying to a question whether the pain was coming from one blow alone or both, said:\\n\\\"A. No, sir, I don't know which it was.\\n\\\"Q. It is just the left side of your head that hurts ? A. All down there.\\n\\\"Q. All down the left side of your face? A. Yes, ears and throat too1, the whole side.\\\"\\nHowever, the following is also quoted from her testimony:\\n\\\"Q. You can't swear where the pain comes from, the injury \\u2014 the November or May lick, or from both, can you? A. Well, I would say both. Before the second one, I didn't have this hurting in my ears and throat, and since the last one it hufts all down through here, and if I stoop down it shoots all the way up from both of them.\\n\\\"Q. Since the last lick then the pain has tended to spread down to the left side of your face? A. That's right.\\n\\\"Q. Before the May lick the pain was localized in your head? A. Yes, sir, mostly in that knot there.\\n\\\"Q. It wasn't as severe, it didn't cause you to lose any time? A. Well, I didn't work regular. I wasn't able to work, but still I didn't tell them.\\\"\\nRespondent's opinion as to which lick being the cause of her disability, or whether the second aggravated the first, has no probative value, but her description of the progress of her physical condition is material when considered in relation to the time of the two accidents.\\nDr. Murray testified he treated respondent on May 10, 1948, at which time he received the history of the first injury. Dr. Murray said he examined the site of the first injury, in the left parietal region of the head, \\\"and there was a small tumor mass, I would say about the size of a buckshot, perhaps, which I though would be a little cyst formation, so I incised the thing to relieve it, and when I got in there, it wasn't a cyst, but just some fibrous tissue, that was all that was done.\\\" In answer to a question why it was there, Dr. Murray said, \\\"based on the history of a previous injury at that point I assume it was fibrous tissue resulting from the first injury.\\\"\\nThe last treatment administered by this medical witness to respondent was in June of 1948, and he did not see her again until the second hearing before the Single Commissioner on July 13, 1949, when he examined her during the progress of his cross-examination. In his direct examination Dr. Murray stated he did not expect that the fibrous tissue would increasei in size over a period of time, nor did he find anything in his examinations in May and June of 1948 which would render respondent incapacitated from work. In the cross-examination he was asked to- again examine Mrs. Ducker, and somewhat to his surprise he found a thickness and swelling in the area of the first injury about the size of a fifty cent coin which he described as being a tumor mass. Throughout his examination this doctor would not state that respondent was incapacitated from work by.reason of either injury, nor is there to be found in his testimony any statement that the existence of the tumor mass was in any way caused by or accelerated by the second injury. In fact, he referred to the second injury only briefly, describing it as a swelling which did not increase in size and cleared up in a few days. In reference to the second injury, he also stated there was a bruise of the skin- \\u2014 -not an abrasion but more of a contusion. While respondent first went to Dr. Murray as a result of the second injury, it developed the treatments received were principally for the fibrous or tumor mass caused by the first injury.\\nIn June of 1949 the respondent was examined by Dr. G. C. Pettigrew, who testified in her behalf. Dr. Pettigrew related the medical history of the case and gave the following as his objective findings: \\\"I found on the left parietal area of the skull, just below the mid-sagital suture, a mass approximately two inches, a flat mass approximately two inches long and around one and a half inches wide, the edges of which were very irregular, and was tender on pressure.\\\" From the .r-ray plates Dr. Pettigrew says \\\"she had an area on the left parietal bone between the size of a quarter and a half dollar, which was necrotic in the bone, a necrotic area the size of a quarter or half a dollar.\\\" Dr. Pettigrew further testified that unless she received continued medical treatment her condition would continue to get worse, and from his opinion she had been disabled since the time of the injury. This witness also stated he did not find any injury to the temporal region, the site of the' second injury, nor was there any reason to expect trouble from the second accident,' and that the disability was gradually getting worse.\\nThe closest approach in the record to any testimony to show that the second injury aggravated the first is found in the testimony of Dr. Pettigrew. He was asked if it was humanly possible to say which lick was the cause of the whole suffering, and he answered that he wouldn't say which one; \\\"probably the first one is the cause, and the second one aggravated it.\\\" This answer was followed by a question, \\\"If she worked following the first one, it may be the second one was the sole cause? It may be the first one; it may be a combination, of the two ?\\\" Answer, \\\"I couldn't say which was which.\\\" These questions and answers ' were preceded by testimony from this witness, already referred to, that the disability was caused by the November lick. His answer to the effect that the second accident probably aggravated the first leaves the cause and effect relationship in surmise or conjecture. This Court, in a number of cases, has already held that where medical testimony is relied upon to sustain an award, the medical witness must testify, taking into consideration all attending data, it is his or their professional opinion that the result in question most probably came from the cause alleged. It will be seen that it is not sufficient to say that the result in question probably came from the cause alleged, but most probably, or words of similar import. Dr. Pettigrew did not use the phrase \\\"most probably,\\\" nor does he give any facts or circumstances to support the word \\\"probably\\\" in connection with aggravating effects. On the other hand, when saying probably the first accident was the cause, he has preceded this statement with a very strong opinion to the effect that the cause of the disability is the lick received in November.\\nWhile respondent's physical condition became worse at or following the May accident, there is an absence of evidence to sustain a finding of fact that the second accident accelerated or aggravated the first injury. It is just as probable that the necrosis, fibrous tissue, tumor mass, or whatever it may be, was -in a natural state of progress, or the unfortunate result of the operation and would have occurred if there had not been a May accident, as it is probable that the May lick aggravated the November injury.\\nIn Crenshaw v. Pendleton Manufacturing Co., 215 S. C. 66, 54 S. E. (2d) 61, in an opinion by Mr. Justice Taylor, we held that while the words \\\"likely\\\" and \\\"probably\\\" are somewhat synonymous when used in a question to a physician on a medical issue, nevertheless a professional opinion based upon a likelihood or probability is not sufficient to support a Workmen's Compensation award on an issue of cause and effect. A greater degree of certainty is attained when the doctor's opinion is based on more than a likelihood or more than a probability, which is sometimes expressed in the phrases \\\"more than likely,\\\" \\\"more than probable,\\\" or \\\"most probably,\\\" or other words or phrases of similar meaning. These latter phrases convey that degree of definiteness which is necessary to sustain an award in questions of this nature.\\nAVe do' not find any testimony herein to' support the opinion and award of the Full Commission that claimant is temporarily disabled as the result of the combined injuries, or if the word \\\"combined\\\" is used in the sense of \\\"aggravated,\\\" that the second accident definitely aggravated any condition which may have been caused by the first. AVhile we agree with Judge McGowan in his conclusion that the Full Commission committed error in holding both carriers liable, we think that he is in error in sustaining the Commission on the point of the aggravation.\\nIt is our conclusion that the accident in November of 1947 is the sole cause of respondent's disability., and in consequence of which the liability is that of' Aetna Casualty & Surety Company.\\nThere are two reports by doctors who did not testify at the hearings. These reports are referred to in the testimony, but are not included in the Transcript of Record before this Court. Therefore, these reports were not considered in reaching our decision.\\nThis, proceeding is remanded to the County Court of Greenville County to enter judgment against the Aetna Casualty & Surety Company for the compensation due respondent, medical and hospital bills incurred and to be incurred, and releasing the Liberty Mutual Insurance Company from liability for said compensation and expenses.\\n. Baker, C. J., and Fishburne, StukEs, Tayeor and Oxner, JJ-, concur.\"}"

sc/2091825.json

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+"{\"id\": \"2091825\", \"name\": \"STATE v. ROBINSON\", \"name_abbreviation\": \"State v. Robinson\", \"decision_date\": \"1953-04-16\", \"docket_number\": \"16736\", \"first_page\": \"314\", \"last_page\": \"320\", \"citations\": \"223 S.C. 314\", \"volume\": \"223\", \"reporter\": \"South Carolina Reports\", \"court\": \"Supreme Court of South Carolina\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-11T02:39:56.381764+00:00\", \"provenance\": \"CAP\", \"judges\": \"Fishburne, Stukes, Taylor and Oxner, JJ., concur.\", \"parties\": \"STATE v. ROBINSON\", \"head_matter\": \"16736\\nSTATE v. ROBINSON\\n(75 S. E. (2d) 465)\\nMessrs. C. T. Gray don and John Grimball, of Columbia, for Appellant,\\nMr. T. Pou Taylor, Solicitor, of Columbia, for Respondent.\\nApril 16, 1953.\", \"word_count\": \"1417\", \"char_count\": \"8416\", \"text\": \"Baker, Chief Justice.\\nThe appellant was tried and convicted at the May (1952) term of the Richland County Court of General Sessions on an indictment charging that he, with numerous other persons, entered into a conspiracy to defraud the State by the sale, delivery and giving to certain individuals named in the indictment, to wit, Samuel B. Marshall, D. J. Marshall, Benjamin J. Cooper, and others about to take the state teacher's examination in 1949, answers to questions contained in such examination; and from the verdict of guilty and sentence imposed, he appeals.\\nThe machination of the scheme is so fully set forth in Pettiford v. South Carolina State Board of Education, 218 S. C. 322, 62 S. E. (2d) 780, it is unnecessary that we again outline same.\\nThere are twenty-two exceptions, but in stating the \\\"Questions Involved,\\\"' appellant has reduced these to five issues, which will not be taken up in the order stated in his printed brief.\\nWe will first pass upon Question No. IV whether the trial Judge erred in refusing the motion of appellant for-a direction of verdict of not guilty, and failing in that, in not granting him a new trial. In that a new trial must be granted the appellant for other reasons, we will refrain from discussing such testimony as is contained in the record which may be said tended to prove the offense alleged in the indictment. Suffice it to say we have read the record and, construing the testimony in the light most favorable to the prosecution, which must be done in passing upon a motion for a direction of verdict, keeping in mind, however, that the defendant is entitled to the benefit of any reasonable doubt thereabout, State v. Shackelford, 220 S. C. 519, 68 S. E. (2d) 450, have reached the conclusion that we cannot hold as a matter of law that the trial Judge erred in not granting the motion for the direction of verdict in appellant's behalf.\\nWe will now go back to Questions Nos. II and III, reading respectively as follows:\\n\\\"Did the Trial Judge err in admitting hearsay testimony for the sole purpose of corroborating one of two contradictory statements made by a prosecuting witness ?\\\"\\n\\\"Did the Trial Judge err in admitting testimony in reply by the State that was not contradictory of any testimony offered by the defense and which was also hearsay testimony?\\\"\\nThe chief witness for the prosecution was Samuel Marshall, who testified that he had been given the key answers to the examination questions by the appellant on the night before the examination was to be held, and had been allowed to use appellant's office and typewriter to make other copies of same, and that later he made additional copies in pencil or pen, and had sold to others who were taking the examination at least two, if not three, of these copies for which he had received one hundred to one hundred and twenty dollars, no part of which was ever paid to the appellant. In fact, the appellant made no charge to him for the copy of the key answers he received from the appellant. During the trial, while the defense was cross-examining this witness (Samuel Marshall), the defense procured from the State's prosecuting officer, the Solicitor, and introduced them in evidence, two written statements, both of which had been made under oath by this witness. These statements were contradictory as to the source from which the witness had procured the key answers. In his first sworn written statement, he had stated that he procured the answers to the examination from a man named Robert Del-linger, who lived in Orangeburg, and in his second sworn written statement, made at a later date, he said he had gotten the answers to the examination from the appellant. After these contradictory statements were introduced in evidence, the prosecution called Robert Bellinger as a witness, and the trial Judge, over the vigorous objections of the appellant's counsel, permitted Bellinger to testify in the minutest details to a conversation between him and the witness Samuel Marshall in Orangeburg, when only the two of them were present, all for the purpose of showing that he (Bellinger) had at one time agreed for Marshall to say that the answers to the questions were procured from him, and thus bolster the second sworn written statement made by Marshall wherein he claimed to have procured the answers to the examination from the appellant.\\nIn so far as the testimony of Bellinger related to the conversation between him and the witness Marshall was concerned, it was pure hearsay, and inadmissible. There are only two exceptions, so far as we recall at the moment, where what might be termed hearsay testimony, is admissible, and the testimony permitted does not fall in either. For this postulate, citation of authority is unnecessary.\\nWhen the appellant was testifying, and in the course of his testimony, he said that while Marshall was being investigated in reference to his (Marshall's) connection with the scheme to defraud the State by furnishing teachers who were taking the examination with answers to the questions, Marshall came to him and told him (appellant) that he (Marshall) had told the Constabulary that he had procured the answers to the examination from a man by the name of Leadbetter who lived in Orangeburg; that Marshall then asked him (appellant is a duly licensed and practicing attorney in Columbia) what to tell them (the Constabulary), and he told him to tell the truth; that he (the appellant) didn't know where Marshall had procured the answers.\\nThe State, under the guise of putting up reply testimony, placed on the witness stand two members of the State Constabulary who were active in this investigation, and Dr. Ellison M. Smith, Director of Teacher Education and Certification in the State Department of Education, and who was also active in the investigation of the fraud which certain teachers undertook to perpetrate, was recalled to the witness stand, and over the objection of the appellant's counsel, these witnesses were permitted to testify that Marshall had never mentioned the name \\\"Lead- better\\\" to them. Such testimony was in nowise contradictory of the appellant's testimony, nor was it in reply to any testimony offered by the appellant. The issue wasn't whether Marshall had told the Constabulary that he had procured the answers from a man named \\\"Leadbetter,\\\" but it was whether Marshall had told the appellant that that was what he had told the Constabulary. The only person who could have denied the statement as to what Marshall told the appellant was Marshall himself, and although he was in the courtroom, he was not recalled to the witness stand.\\nNumber I of appellant's statement of the \\\"Questions Involved\\\" is incomplete, but it is not necessary that we now pass upon the issue which was intended to be raised thereby, since in all probability the same situation will not arise in another trial. Nor is it now necessary that we decide the issue raised by Number V of the appellant's statement of the \\\"Questions Involved.\\\" Such issue may not come before the Court in another trial.\\nThe witness, Marshall, referred to throughout herein is Samuel Marshall or S. B. Marshall. He was not the only witness by the name of Marshall who testified for the prosecution.\\nFor the reasons hereinabove stated, the judgment appealed from is reversed and the case remanded.\\nFishburne, Stukes, Taylor and Oxner, JJ., concur.\"}"

sc/2113639.json

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+"{\"id\": \"2113639\", \"name\": \"Kermit R. PAGE, Respondent, v. Eva V. PAGE, Victoria Lee Page, Carolyn Louise Page, James Edward Page, and the South Carolina National Bank of Charleston, of whom Victoria Lee Page, Carolyn Louise Page, James Edward Page and the South Carolina National Bank of Charleston are, Appellants\", \"name_abbreviation\": \"Page v. Page\", \"decision_date\": \"1963-12-12\", \"docket_number\": \"18140\", \"first_page\": \"312\", \"last_page\": \"317\", \"citations\": \"243 S.C. 312\", \"volume\": \"243\", \"reporter\": \"South Carolina Reports\", \"court\": \"Supreme Court of South Carolina\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-11T02:39:55.956920+00:00\", \"provenance\": \"CAP\", \"judges\": \"Moss, Lewis, Bussey and Brailsford, JJ., concur.\", \"parties\": \"Kermit R. PAGE, Respondent, v. Eva V. PAGE, Victoria Lee Page, Carolyn Louise Page, James Edward Page, and the South Carolina National Bank of Charleston, of whom Victoria Lee Page, Carolyn Louise Page, James Edward Page and the South Carolina National Bank of Charleston are, Appellants.\", \"head_matter\": \"18140\\nKermit R. PAGE, Respondent, v. Eva V. PAGE, Victoria Lee Page, Carolyn Louise Page, James Edward Page, and the South Carolina National Bank of Charleston, of whom Victoria Lee Page, Carolyn Louise Page, James Edward Page and the South Carolina National Bank of Charleston are, Appellants.\\n(133 S. E. (2d) 829)\\nMessrs. E. Windell McCrackin and Howell v. Bellamy, Jr., of Myrtle Beach, for Appellants,\\nMessrs. Holler & Holler, of Myrtle Beach, for Respondent.\\nDecember 12, 1963.\", \"word_count\": \"1244\", \"char_count\": \"7189\", \"text\": \"Taylor, Chief Justice.\\nThis action was brought by plaintiff, Kermit R. Page, to construe the will of the late father, James O. Page. Among other provisions, the will provided:\\n\\\"Item VIII. All the rest, residue and remainder of my estate, whether real, personal or mixed, which I may own at the time of my death, or in any way be entitled to, I give, devise and bequeath the same to my trusted friend, Edwin L. Lucas, as Trustee, the same to be expended for any emergent needs of my son, Kermit R. Page, and my three grandchildren, Victoria Lee Page, Carolyn Louise Page and James Edward Page, the Trustee to be the judge of the necessity of paying out any of said funds. This is to provide against any misfortune to my said son that would incapacitate him as a provider for himself and his family, or any unforseen happening tO' any of the said children that would make necessary any expenses that my said son could not reasonably meet.\\\"\\nThe named trustee failed to qualify and the First National Bank of Myrtle Beach administered the trust fund until merging with the South Carolina National Bank of Charleston, which is now the duly qualified and acting trustee under the will.\\nPlaintiff seeks a construction of the will which would authorize and direct the trustee to pay to him the annual income from the corpus of the trust.\\nWhile the First National Bank of Myrtle Beach acted as trustee, it construed the will as allowing payment of taxes and insurance upon land devised to plaintiff by the testator and used by him as a home for himself and family. Upon qualification as trustee, the South Carolina National Bank of Charleston placed a different construction on the will to the effect that the trust funds were not intended by testator to be used in the manner demanded by plaintiff.\\nThe Honorable Claude M. Epps, Judge of the Civil and Criminal Court of Horry County, in his Order of April 6, 1963, placed a construction on the will in accordance with plaintiff's demands \\\"since to do so would be in the best interest of all the individual parties to this suit and since it could in nowise affect the defendant trustee.\\\" It was ordered that the trustee pay the 1962 taxes, plus any insurance premiums. It was ordered further that the annual income from the corpus be paid to plaintiff and that the trustee pay from the trust fund attorneys' fees in the amount of $350.00 plus $25.00 for the guardian ad litem. The trustee and guardian for the minor grandchildren appeal.\\nThe 1962 City and County taxes on the real estate, which consists of a house and lot together with an adjoining vacant lot, both of which were devised to Respondent by the testator, amount to $202.66. The insurance premium, which became due and payable January 18, 1963, amounts to $121.26. The corpus of the trust is approximately $21,300.00 and the annual income therefrom based on prior earnings amounts to approximately $840.00.\\nThe powers of a trustee are either mandatory or discretionary. A power is mandatory when it authorizes and commands the trustee to perform some positive act and is discretionary when the trustee may either exercise or refrain from exercising it. Woodward v. Mordecai, 234 N. C. 463, 67 S. E. (2d) 839; 54 Am. Jur., Trusts, Section 290, p. 231, 80 C. J. S., Trusts, \\u00a7 246, p. 223. The testator by directing \\\"the Trustee to be the judge of the necessity of paying out any of said funds\\\" vested a discretionary power upon the trustee as to the disbursement of the trust funds.\\nHowever, a trustee cannot exercise an arbitrary discretion with regard to the trust property. Neel v. Clark, 193 S. C. 412, 8 S. E. (2d) 740. Courts of Equity have the right to exercise a supervisory control of the act of trustees, Wannamaker v. South Carolina State Bank, 176 S. C. 133, 179 S. E. 896; Scovill v. Scovill, 191 S. C. 323, 4 S. E. (2d) 286; Wingard v. Hennessee, 206 S. C. 159, 33 S. E. (2d) 390. In the administration of a trust, the intent of the testator is of controlling importance. Such intent is to be gathered from the words of the provision, but these words are to be interpreted in the light of the rest of the will in order to determine the intention. 54 Am. Jur., Trusts, Section 274, p. 218. The trustee does not have absolute and uncontrolled discretion in disbursing the trust funds but must exercise his discretion as directed by the will. By the terms of the will under consideration, the trustee may only apply such funds for use of the beneficiaries whenever in the trustee's judgment, due to a \\\"misfortune,\\\" the beneficiaries are in \\\"emergent need.\\\"\\n\\\" 'Misfortune' is some adverse event not immediately dependent on action or will of him who suffers it, and so improbable that no prudent man would take it into his calculations. In re Monterori's Will, 179 Misc. 711, 40 N. Y. S. (2d) 414, 415.\\\" 27 Words & Phrases, p. 532. An \\\"emergent need\\\" is a need which suddenly arises unexpectedly from an unforeseen combination of circumstances often calling for prompt and immediate action or remedy. It does not embrace happenings which are recurring and foreseeable in the ordinary course of events but rather refers to an event or circumstance which might not occur and which was not reasonably forseeable or anticipated at the time of the will's execution.\\nExamination of Appellant trustee's action in this light reveals that it did not abuse its discretion by refusing to pay the reasonably forseeable expenses of insurance and property taxes on Respondent's land. If the trustee exercises his discretionary power in good faith, without fraud or collusion, the Court will not interfere or control his discretion. Carter v. Young, 193 N. C. 678, 137 S. E. 875. Respondent would, in effect, have the Court substitute its discretion for that of the trustee. This the Court cannot do and \\\"the mere fact that if the discretion had been conferred upon the Court, the Court would have exercised the power differently is not a sufficient reason for interfering with the exercise of the power by the trustee.\\\" II Scott on Trusts, Section 187, p. 1376.\\nThe burden is not upon the trustee to show good reasons for its actions but rather is upon those who question its actions to prove an abuse of discretion. There has been no showing that Respondent's claimed lack of financial resources is insufficient or unavailable due to any \\\"misfortune\\\" which would require the trustee to alleviate an \\\"emergent need\\\" such as to warrant this Court granting the relief sought on the grounds that the trustee has abused its discretion.\\nFor the foregoing reasons, we are of opinion that the Order appealed from should be reversed, and it is so ordered.\\nReversed.\\nMoss, Lewis, Bussey and Brailsford, JJ., concur.\"}"

sc/2114658.json

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+"{\"id\": \"2114658\", \"name\": \"Jane Sirrine COTHRAN and Helyn C. Asbury, as Executrix of the Estate of William G. Sirrine, Plaintiff-Respondents, v. The SOUTH CAROLINA NATIONAL BANK OF CHARLESTON, (Greenville, S. C.) as Executor and Trustee of the Estate of Joseph Emory Sirrine, Daniel R. McLeod, as Attorney General of the State of South Carolina, and John Doe, individually and as representative of all the unborn children and grandchildren of Jane Sirrine Cothran, Defendant-Appellants\", \"name_abbreviation\": \"Cothran v. South Carolina National Bank\", \"decision_date\": \"1963-02-27\", \"docket_number\": \"18034\", \"first_page\": \"80\", \"last_page\": \"97\", \"citations\": \"242 S.C. 80\", \"volume\": \"242\", \"reporter\": \"South Carolina Reports\", \"court\": \"Supreme Court of South Carolina\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T18:39:32.797293+00:00\", \"provenance\": \"CAP\", \"judges\": \"Taylor, C. J., and Moss, Bussey and Brailsford, JJ., concur.\", \"parties\": \"Jane Sirrine COTHRAN and Helyn C. Asbury, as Executrix of the Estate of William G. Sirrine, Plaintiff-Respondents, v. The SOUTH CAROLINA NATIONAL BANK OF CHARLESTON, (Greenville, S. C.) as Executor and Trustee of the Estate of Joseph Emory Sirrine, Daniel R. McLeod, as Attorney General of the State of South Carolina, and John Doe, individually and as representative of all the unborn children and grandchildren of Jane Sirrine Cothran, Defendant-Appellants.\", \"head_matter\": \"18034\\nJane Sirrine COTHRAN and Helyn C. Asbury, as Executrix of the Estate of William G. Sirrine, Plaintiff-Respondents, v. The SOUTH CAROLINA NATIONAL BANK OF CHARLESTON, (Greenville, S. C.) as Executor and Trustee of the Estate of Joseph Emory Sirrine, Daniel R. McLeod, as Attorney General of the State of South Carolina, and John Doe, individually and as representative of all the unborn children and grandchildren of Jane Sirrine Cothran, Defendant-Appellants.\\n(130 S. E. (2d) 177)\\nMessrs. Rainey, Fant & Horton, of Greenville, for Appellant, The South Carolina National Bank of Charleston, as Executor and Trustee of the Estate of Joseph Emory Sirrine,\\nMessrs. Benjamin B. Dunlap and Victor S. Evans, Assistant Attorneys General, of Columbia, for Appellant, Daniel R. McLeod, Attorney General.\\nMessrs. Hinson & Hamer, of Greenville, for Respondent, Jane Sirrine Cothran,\\nMessrs. Kendrick & Stephenson and Wyche, Burgess & Wyche, of Greenville, for Respondent, Helyn C. Asbury, as Exectrix of the Estate of William G. Sirrine, deceased,\\nMessrs. Rainey, Fant & Horton, of Greenville, for Appellant, The South Carolina National Bank of Charleston, as Executor and Trustee of the Estate of Joseph Emory Sirrine, in Reply,\\nFebruary 27, 1963.\", \"word_count\": \"4740\", \"char_count\": \"27541\", \"text\": \"Lewis, Justice.\\nThis is an appeal by the defendant, The South Carolina National Bank of Charleston, from an order of the lower court striking certain portions of the defendant's answer and refusing the said defendant's motion for an order of reference.\\nThe plaintiffs instituted this action under the Uniform Declaratory Judgments Act of South Carolina seeking a determination of the rights of the life beneficiaries under the will of the late J. E. Sirrine of Greenville, South Carolina, in and to certain stock dividends and the profits from the sales of stock received by the defendant, The South Carolina National Bank of Charleston, as trustee under said will.\\nThe complaint alleges, and the answer admits, that J. E. Sirrine died on August 7, 1947, leaving a will dated June 5, 1941 and two codicils thereto dated May 1, 1946 and May 29, 1947. These instruments were made a part of the complaint. Under the terms thereof, pertinent to the issues here, a trust was created and the trustee directed to pay \\\"all the net income\\\" of the trust estate as follows: one-half to the plaintiff, Jane Cothran, the testator's niece, and one-half to his brother, William G. Sirrine, now deceased, for life. Upon the death of one of the beneficiaries, the survivor was to receive \\\"all the net income\\\" of the trust estate for life. Upon the death of Jane Cothran, with children, the trust was to continue, her children receiving \\\"the net income\\\" until the youngest reached twenty-one years of age, at which time the principal was to be distributed among those then living. If Jane Cothran should die without descendants, the trustee would administer the estate as a memorial for the benefit of deserving students of Greenville High School.\\nThe complaint further alleges that the defendant, as trustee, is required under the terms of the will to pay to the life beneficiaries \\\"all the net income\\\" of the trust estate, which it has failed and refused to do, by refusing to distribute to the life beneficiaries (1) dividends received by it, in stock, on shares of stock owned by the said J. E. Sirrine and on shares of stock acquired by the trustee after his death, and (2) profits realized from the sale by the trustee of stock owned by the deceased at the time of his death and stock acquired by the trustee after the decedent's death. The prayer of the complaint asked the court to declare the stock dividends and such profits from the sales of stock as income from the trust estate and order its distribution to the life beneficiaries.\\nWilliam G. Sirrine, one of the life beneficiaries, died on December 11, 1959, leaving a will in which Helyn C. As-bury was named executrix. She, in that capacity, along with Jane Cothran, the surviving life beneficiary, are the plaintiffs in this action.\\nThe answer of the defendant bank sought to interpose three defenses. These defenses include, in addition to a general denial, estoppel and laches under various circumstances, which will be hereafter referred to in more detail.\\nUpon the filing of the answer, the plaintiff moved to strike therefrom the defenses relating generally to estoppel and laches upon the grounds that they were irrelevant, immaterial and not responsive to the allegations of the complaint. The defendant moved at the same time for an order of reference upon the grounds that the action is one in equity and will involve the taking of considerable testimony. Upon hearing the foregoing motions, the lower court granted that of the plaintiffs to strike certain allegations from the answer but denied the motion of the defendant for an order of reference. From this order the defendant has appealed.\\nIt is conceded that the primary issue raised by the complaint and answers was whether, under the terms of the will of J. E. Sirrine and the codicils thereto, dividends paid in stock and certain portions of the proceeds resulting from sales of stock by the trustee constituted income belonging to the life beneficiaries of the trust or corpus to be held by the trustee for the benefit of the remaindermen. Admittedly, the determination of this issue will be governed by the rule of law to be applied in determining whether such profits from the sales of. stock and the stock dividends constituted income or corpus of the trust estate under the will.\\nIn passing upon the plaintiffs' motions to strike and the defendant's motion for an order of reference, the lower court concluded that the issues arising under such motions could only be determined in the light of the legal principles which must be applied in deciding the foregoing primary issue in the case. Accordingly, the lower court, preliminarily to passing upon the motions, reviewed the South Carolina decisions and concluded that the apportionment, or Pennsylvania rule had been adopted by our courts in interpreting the term \\\"net income\\\" in such cases and that the term was, therefore, not ambiguous. In the light of the foregoing principles, the lower court concluded that the allegations of the answer sought to be stricken were irrelevant and that the order of reference should be refused.\\nAt the outset, the defendant objects to the scope of the order of the lower court, contending that in determining the principles of law which would govern the determination of the primary issue in the case the court erroneously decided issues involving the merits. There is no merit in this contention. The motion of the plaintiffs to strike was based upon the ground that the apportionment rule had been adopted by the courts in this State in interpreting \\\"net income\\\", therefore, the term was not ambiguous under our decisions, and such allegations of the answer were irrelevant. The motion of the defendant for an order of reference was based in part upon an affidavit of its trust officer, in which the apportionment rule is discussed in connection with the claimed necessity for an order of reference. Oral argument was allowed in this case upon the petition signed by counsel for all parties. This petition contained the following material statement:\\n\\\"2. If it was proper for the court to determine what rule of law governs in South Carolina with reference to the question of income as between life tenant and remainder-men and if the court below determined the proper rule of law so governing, the case would be substantially disposed of and it would only be necessary to have an accounting in accordance with such principles, with reference to which little controversy, if any, is anticipated.\\\"\\nUnder the foregoing circumstances, we think that it was proper for the lower court to determine the rule of law which governs in South Carolina with reference to the question of the meaning of the term \\\"income\\\" as used in the will in question. The relevancy of the allegations of the answer could only be determined in the light of the legal principles governing the determination of that primary issue in the case, and the propriety of an order of reference depended upon the determination of the scope of the inquiry to be made at the trial under the applicable legal principles.\\nWe, therefore, agree with the lower court that the determination of the issues which arise under the motions is largely dependent upon the rule of law to be followed in determining \\\"income\\\" under the terms of the will. In addition, it clearly appears from the record before us that, by passing upon the question, confusion will be avoided in the trial of the case in the circuit court and that such would be in the interest of all parties in the further disposition of the cause.\\nThe complaint seeks a recovery from the defendant, as trustee, of (1) all dividends in stock received by the trustee, and (2) the portion of the proceeds from the sale of corporate stock by the trustee which represents either (a) the difference between the value of the stock at the time acquired by the trustee and the sales price thereof, or (b) the difference in the value of the stock at the time acquired by the trustee and the sales price, to the extent that such difference represents earnings of the corporations withheld by the respective corporations during the terms of the trust and not declared and paid to the stockholders.\\nThe will in question is before us as a part of the complaint, and admitted by the answer. The bequest in the will of J. E. Sirrine to the life beneficiaries was of \\\"all the net income of my estate.\\\" The will contains no definition of what shall constitute \\\"net income\\\" and no discretionary power is vested in the trustee to determine what constituted income or corpus of the estate.\\nWhat then is the rule to be followed in determining \\\"net income\\\" under the will, as it relates to (1) dividends in stock and (2) profits from the sale of stock received by the trustee from the trust's ownership of corporate stock?\\nQuestions relating to the conflicting rights of life beneficiaries and remaindermen to the benefits derived from the ownership of corporate stock have been the subject of such litigation and in the solution of the problem the courts have, adopted several different rules for determining these rights. All courts, of course, recognize that where the testator's intention that the life tenant shall receive the increment from the stock appears from the trust instrument such intent is controlling. Where the testator has not manifested any specific intention, but has, as in this case, simply provided that all of the income from his estate shall be paid to the life beneficiaries, the courts have divided into at least three groups in attempting to determine in certain instances whether the particular benefit received by the trustee from the ownership of corporate stock shall be allotted to income or corpus. These are generally referred to as the (1) Massachusetts rule, (2) apportionment or Pennsylvania rule, and (3) Kentucky rule. For a discussion of these rules, their application, and the principles underlying each, see: Bogert, Trusts and Trustees, Second Edition, Section 842 et seq.; 3 Scott, Trusts, Second Edition, Section 236 et seq.; 33 Am. Jur. 845, Sections 336 & 337; 18 C. J. S. Corporations \\u00a7 471, p. 1122; Annotations: 76 A. L. R. (2d) 162; 130 A. L. R. 492; 44 A. L. R. (2d) 1277.\\nUnder the so-called Pennsylvania, or apportionment rule, it is the source of the stock benefit, and not its form, which determines to what extent it shall be treated as income or corpus of the estate. This rule treats all declared dividends, whether in cash or stock, as income to the life beneficiaries to the extent that the earnings from which the dividend is declared accumulated since the acquisition of the stock by the trustee. This rule also treats either profits from the sale of stock by the trustee during the life tenancy, or profits from the liquidation of the stock by the corporation during such period, as apportionable between the life tenant and remaindermen, if the profit was due to an accumulation of earnings by the corporation. The foregoing rule is based on maintaining the \\\"intact value\\\" of the stock as a part of the corpus of the estate for the remaindermen and giving the accretion to the life tenant. See: In re Nirdlinger's Estate, 290 Pa. 457, 139 A. 200, 56 A. L. R. 1303.\\nWe agree with the lower court that our decisions have adopted the so-called Pennsylvania, or apportionment rule. Cobb v. Fant, 36 S. C. 1, 14 S. E. 959; Wallace v. Wallace, 90 S. C. 61, 72 S. E. 553; Gist v. Craig, 142 S. C. 407, 141 S. E. 26. In the foregoing decisions, profits from the sale of corporate stock by the trustee were involved, as in the instant case. In the Wallace case the profits from the sale were due to accumulations in earnings on the stock, represented in part by extra shares declared as stock dividends and in part by increase in the value of the shares from the retention of earnings by the corporation. While the use of the words \\\"interest, income or profits\\\" in the bequest in that case was of some influence upon the court in reaching its decision, the conclusions reached were also based upon general principles of law. In the Wallace case, the question before the court was stated as follows:\\n\\\"The first question that will be considered is whether there was error, on the part of his honor, the circuit judge, in his ruling that the accretion of the bank stock, as shown by the difference in value of the stock at the time of its acquisition by the trust estate, and the value at the time of the death of the life tenant, due to accumulations in the interval of earnings, represented in part by extra shares declared as stock dividends and in part by increase in book value of the shares from the retention of earnings undistri buted passed to the devisees of the life tenant, and not to the remaindermen.\\\"\\nThe following ruling of the circuit judge in the Wallace case upon the foregoing issue was approved on appeal:\\n\\\"While upon the subject of the distributions of dividends or earnings upon stock between life tenant and remainder-men the courts are much divided, I am of the opinion that the strongest consideration of reason and justice support the rule which apportions such' dividends or earnings between life tenant and remaindermen according to the time when such earnings were made, and not according to the chance action of corporate officers in withholding or declaring dividends; and I think that upon the sale of the stock, as here, in which the funds of the life estate have been invested, the increment in value due to the undivided profits or surplus earned and to the credit of the stock, though not declared by the corporation as dividends should be awarded to the life tenant. The evidence shows with reasonable certainty the amount of the selling price of the stock in question, which represented the value of the undistributed earnings upon the conversion of the stock into money by sale, and there appears to be no difficulty in fairly apportioning proceeds of sale between the representatives of the life tenant and the remaindermen according to the equitable rule of apportionment just stated.\\\"\\nIn the Gist case, supra, the testator devised all of his property to his wife for life with remainder over. There was no trust and no provision for the payment of income to the life tenant, simply a devise to the wife of all of testator's property for life. At the time of his death, the testator owned 15 shares of the capital stock of the Winnsboro Bank, which at the time of his death was worth $102.00 per share. After the testator's death, two of the shares were retired by the bank at the value of $175.00 per share and the proceeds of $350.00 were paid to the life tenant. The remaining 13 shares enhanced in value to $240.00 per share, a total enhancement of $1,794.00, at the time of the death of the life tenant. There were two questions presented in the Gist case: (1) Who was entitled to the $146.00 profit representing the increase in value of the two shares redeemed by the Bank during the life tenancy; and (2) who was entitled to the $1,794.00, representing the accretion in the value of the remaining 13 shares which had not been sold or disposed of. The bank was still a going concern. While there is a great deal of dictum in the opinion in the Gist case, the court followed the apportionment rule in reaching its decision. With reference to the profit of $146.00 realized from the redemption of the stock, the Court said: \\\"It is conceded that at the time of the death of Dr. Douglass in 1897, the bank stock was worth $102.00 per share, par value $100.00; when Mrs. Rice (the life tenant) in 1905 received from the bank in cash $350.00 for the retirement of the two shares, she received $204.00, which may be considered the corpus of that fund, and $146-.00 a distributed earning upon the stock. Under the authorities hereinafter considered in reference to the $1,794.00 item, the $146.00 should be considered as earnings distributed by the bank to the lije tenant, and became her absolute property(Emphasis added.)\\nAs to the second question involved in the Gist case, with which we are not here concerned, it was held that the life tenant was not entitled to nor did she have the power to dispose of the accretion in value of the remaining 13 shares of stock because (1) there had been no declaration of a stock dividend from the additional earnings of surplus, (2) there had been no sale of the stock by the life tenant or any trustee, and (3) there had been no liquidation and distribution of the earnings of the corporation.\\nTherefore, the Gist case clearly held that the testator not having manifested any specific intention thereabout, upon the redemption of the two shares of bank stock, the difference between the value of the stock at the death of the testator and the redemption price, when this difference resulted from earnings accumulated by the bank during the term of the life tenancy, belonged as a matter of substantive law to the life tenant and not to the remaindermen. The Gist case was so construed in Evans v. Adams, 180 S. C. 214, 185 S. E. 57.\\nWhile the Pennsylvania, or apportionment rule has been criticized and has been changed in some states by the adoption of the Uniform Principal and Income Act, South Carolina has no statutory enactment upon the subject and has for many years recognized and applied the rule in determining the conflicting rights of life beneficaries and remaindermen to benefits received from the ownership of corporate stock. We would not be justified in overthrowing a rule so long established.\\nIn the light of the foregoing principles, we proceed to a determination of the relevancy of the portions of the answer which it is sought to have stricken. The allegations of the answer involved are paragraphs VII and IX of the first defense and all of the second and third defenses.\\nParagraph VII alleges that William C. Sirrine was an attorney with wide experience in trust and testamentary matters and prepared the will and codicils executed by his brother, J. E. Sirrine and that, with his knowledge of the law and of his brother's wishes and intent, William G. Sirrine acquiesced without protest in the manner in which the defendant treated stock dividends and profits on the sales of stock. Such acts and conduct on the part of the said William G. Sirrine, one of the life beneficiaries, it is alleged, now deprived his executrix, the plaintiff Helyn C. Asbury, of any right to assert the claims set forth in the complaint to such dividends and profits.\\nParagraph IX alleges that the testator was at the time of, and for many years prior to his death a director of the defendant bank and a member of its trust committee ; that he was familiar with the practice of the bank in handling estates and trusts, particularly with reference to stock dividends and profits on sales; and that if the testator desired for stock dividends and profits from sales of stock to be handled in a different manner from the practice followed, he would have so stated in his will.\\nThe second defense alleges that the plaintiffs, by having acquiesced for approximately fourteen years in the manner in which the defendant bank handled stock dividends and profits from the sale of stock and by delaying the bringing of this suit until after the death of William G. Sirrine, one of the life beneficiaries, have deprived the bank of the means of showing the intent of the testator and has caused the bank to take action with reference to the sale of stock \\\"which it might otherwise have handled differently.\\\"\\nThe third defense pleads that the plaintiff, Jane S. Cothran, is now estopped from claiming that the profits on the sale of stock in Chiquola Manufacturing Company should be paid over to her as net income from the trust, in that she exerted great pressure, through her attorney, upon the defendant to sell said stock, repeatedly pointing out to the defendant that the profit which it would realize from such sale, when invested, would afford her substantial income and after her death be available for educational purposes.\\nBasic to a decision of the relevancy of the foregoing allegations is the determination made hereinabove that the term \\\"net income\\\" as used in the will of J. E. Sirrine was not ambiguous under settled principles of law in this State.\\nIt is conceded that the will was prepared by an experienced attorney in trust matters. As stated in the case of Peoples National Bank of Greenville v. Harrison, 198 S. C. 457, 18 S. E. (2d) 1:\\n\\\"The will in controversy was not drawn by a layman. It was drawn by a lawyer of long and successful practice and it is natural to assume that when he used the words contained in the residuary clause, he was fully aware of the legal construction which would be given such words under the decisions of the Supreme Court hereinabove referred to.\\\"\\nThe testator used words of settled legal meaning, and the custom of the defendant bank in handling similar situations or testimony that the testator might have meant something else cannot change the intent of the testator clearly expressed. The defendant bank occupied the position of trustee under the will. Its duty was to administer the trust in accordance with its terms and not according to some custom to the contrary, tiffs in failing to sooner assert their rights.\\nThe second defense pleads laches on the part of the plain-\\n\\\"In order to constitute laches, there must be shown, not merely neglect for a time to enforce a legal or equitable right, where such neglect is for a period short of that which is a bar under the statute of limitations, but it must further be made to appear that such delay was accompanied either by a failure to perform some legal duty, whereby prejudice has resulted to the person pleading such neglect, or that such delay was accompanied by some act on the part of the person so negligent, which operated to mislead the person pleading such neglect, to his prejudice to such an extent that it would be unjust and inequitable thereafter to permit such negligent party to enforce such right.\\\" Edwards v. Johnson, 90 S. C. 90, 72 S. E. 638.\\nIn the case of Privette v. Garrison, 235 S. C. 119, 110 S. E. (2d) 17, it was stated that \\\"[t]he determination of the question of laches proceeds in the light of the circumstances of each case, taking into consideration among other things whether the delay has worked injury, prejudice or disadvantage to one of the parties.\\\"\\nIn the instant case, the defendant bank has the assets involved in the litigation and is still administering the trust. The allegations of the answer reveal no action on the part of the trustee which cannot be remedied by paying over the net income to those persons legally entitled thereto. Assuming that there has been delay, there is a total absence of any allegation upon which the conclusion could be reasonably based that the trustee or the remainder-men have been misled to their prejudice or that prejudice has resulted to either in any way.\\nThe third defense pleads estoppel on the part of the plaintiff, Jane S. Cothran, a life beneficiary.\\nThe elements of an estoppel were set forth as follows in the case of Adams v. Adams, 220 S. C. 131, 66 S. E. (2d) 809, 812:\\n\\\"The essential elements of an equitable estoppel as related to the party claiming the estoppel are (1) lack of knowledge and the means of knowledge of the truth as to the facts in question, (2) reliance upon the conduct of the party estopped, (3) action based thereon of such a character as to change his position prejudicially. 19 Am. Jur. 643, Sec. 43. In Sec. 87, page 744 of the same volume, we find: 'If, at the time when he acted, the party claiming the estoppel had knowledge of the truth, or had the means by which with reasonable diligence he could acquire the knowledge so that it would be negligence on his part to remain ignorant by not using those means, he cannot claim to have been misled by relying upon the representation or concealment.' \\\"\\nThe essence of the plea of estoppel here is that the life beneficiary insisted that the Chiquola stock be sold at a profit and that, if this were done, she would realize a substantial income from the investment of such profits and after her death it would be available for educational purposes. Certainly a request by a life beneficiary that the trustee sell stock at a profit could not act as an estoppel; neither do the alleged representations of the life beneficiary accompanying such request.- It is not alleged that, but for the representations of the life beneficiary, the defendant bank would have treated the profits as income. On the contrary, the defendant denies that any part of such profits was ever income under the will.\\nThe answer contains no allegations that the plaintiff, Jane S. Cothran, knowingly misled the defendant bank or that such defendant or the remaindermen have in any way suffered any legal prejudice from the sale of the stock or its subsequent handling by the defendant. The defendant bank had the same means of ascertaining the facts as any benefi ciary of the trust. It cannot claim to have been misled by any representations of the plaintiff:\\nThe allegations of the third defense, if proved, would not constitute a defense to the cause of action set forth in the complaint.\\nThe lower court properly granted the motion of the plaintiff to strike the foregoing allegations from the answer.\\nLastly, it is contended that the lower court erred in refusing to grant the defendant's motion for an order of reference. The granting of such motion was within the discretion of the trial judge. Section 10-1402, 1962 Code of Laws of South Carolina; Momeier v. John McAlister, Inc., 190 S. C. S29, 3 S. E. (2d) 606.\\nAs heretofore pointed out, counsel for all parties agreed, in their petition to this Court to be allowed oral argument, that, if the lower court was correct in its rulings upon other phases of the case, \\\"the case would be substantially disposed of and it would only be necessary to have an accounting in accordance with such principles, with reference to which little controversy, if any, is anticipated.\\\" Under these circumstances, there was no abuse of discretion in refusing the motion for an order of reference.\\nAffirmed.\\nTaylor, C. J., and Moss, Bussey and Brailsford, JJ., concur.\"}"

sc/2135611.json

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+"{\"id\": \"2135611\", \"name\": \"J. Archie LEE, Respondent, v. GULF INSURANCE COMPANY, Appellant\", \"name_abbreviation\": \"Lee v. Gulf Insurance\", \"decision_date\": \"1966-07-28\", \"docket_number\": \"18541\", \"first_page\": \"296\", \"last_page\": \"300\", \"citations\": \"248 S.C. 296\", \"volume\": \"248\", \"reporter\": \"South Carolina Reports\", \"court\": \"Supreme Court of South Carolina\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T20:13:28.735918+00:00\", \"provenance\": \"CAP\", \"judges\": \"Moss, C. J., and Lewis, Bussey and Brailsford, JJ., concur.\", \"parties\": \"J. Archie LEE, Respondent, v. GULF INSURANCE COMPANY, Appellant\", \"head_matter\": \"18541\\nJ. Archie LEE, Respondent, v. GULF INSURANCE COMPANY, Appellant\\n(149 S. E. (2d) 639)\\nMessrs. Burroughs & Green, of Conway, for Appellant,\\nWinston W. Vaught, Esq., of Conway, for Respondent,\\nJuly 28, 1966.\", \"word_count\": \"1097\", \"char_count\": \"6522\", \"text\": \"William L. Rhodes, Jr., Acting Associate Justice:\\nThe plaintiff-respondent instituted this action against the defendant-appellant for recovery of a judgment previously obtained by him against one Kirby Dix. The judgment was obtained in an action predicated on the negligence of Dix in the operation of his automobile and the resulting property dam\\u00e1ge to a building owned by the respondent. The appellant is the liability insurance carrier for Dix. The complaint alleges the existence of the liability insurance policy with Dix as the named insured and the procurement of the judgment against him as above stated. The answer of the appellant insurance carrier alleges, inter alia, non-coverage by reason of its contention that Dix was an employee of the respondent and in charge of the building that was damaged and sets forth a provision of the policy to the effect that destruction of property \\\"in the charge of the insured\\\" is excluded from coverage. The case was tried before a jury and resulted in a verdict for the respondent in the amount of the judgment previously obtained.\\nDuring the course of the trial, the appellant attempted to introduce into evidence the signed statement of Kirby Dix through identification by one Tanner, an adjuster for the appellant company. The Court excluded the statement, ruling that it was hearsay. The appellant then attempted to elicit from Tanner certain statements alleged to have been made to him by Dix. This was likewise excluded by the trial judge on the ground of hearsay. Dix was not offered by either litigant as a witness in the case nor is his absence explained in the record. The sole question presented on this appeal is whether or not the exclusion of this evidence by the trial judge constitutes error. \\u2022\\nThe appellant argues that such evidence is admissible against the respondent on the theory that the respondent \\\"stepped into the shoes\\\" of the insured Dix when he instituted the present action, and that he is thereby rendered subject to all disabilities and the beneficiary of all rights accruing to the insured. It is the position of the appellant that since the evidence offered would have been admissible had Dix been the plaintiff, it would necessarily be admissible against the respondent in his substituted role. The law is well settled in this jurisdiction that an injured party who brings suit against a liability carrier in order to collect on a judgment previously acquired against an insured is possessed of all rights of the insured and subject to all defenses that exist as between the insured and the insurance carrier. Crook v. State Farm Mutual Automobile Insurance Company, 231 S. C. 257, 98 S. E. (2d) 427. While the principle of law above stated is well settled, there is no case in this jurisdiction supporting the contention of the appellant that the same evidence would be rendered admissible regardless of whether the suit be brought by the insured or the injured party. To say that the respondent had the same substantive rights and is subject to the same defenses as the insured is not to say that-the ordinary rules governing the admissibility of evidence should be modified or suspended in a trial adjudicating these substantive rights and defenses.\\nThe rule against hearsay evidence is well established. Unless it comes within one of the exceptions it is not admissible. This Court in Cooper Corp. v. Jeffcoat, 217 S. C. 489, 61 S. E. (2d) 53, quoted with approval from Jones v. Charleston & W. C. Ry. Company, 144 S. C. 212, 142 S. E. 516, 517, the following:\\n\\\"The reason for this rule of exclusion is that hearsay is not subject to the ordinary tests required by law for ascertaining its truth, the author of the statements not being subject to cross-examination in the presence of a court of justice, and not speaking under the penal sanction of an oath, there being no opportunity to investigate his character and motives, and his deportment not being subject to observation. And the misconstruction to which such evidence is exposed, from the ignorance or inattention of the hearers, or from criminal motives, is a powerful additional objection.\\\"\\nIn the case of Columbia Casualty Company v. Thomas, et al., 5 Cir., 101 F. (2d) 151, substantially the same question here presented was before that Court. A suit for declaratory judgment was instituted by the insurance carrier against the named insured (Clauson), a claimed additional insured (Thomas) who was the operator of the truck owned by the named insured, and a number of persons injured or claiming to have been injured in the collision. The suit sought a judgment declaring that the truck, at the time of the collision, was not being operated within the policy coverage. As part of its testimony plaintiff offered an affidavit by Thomas as to what he was doing in and with the truck before and at the time of the collision, which affidavit was excluded from evidence by the trial judge. The plaintiff appealed this ruling basing its contention of admissibility on the ground that since the damage claimants derived their rights under the policy through Thomas, they were bound by admissions against his interests contained in the affidavit. The Court refused to adopt this view of the appellant in the following language found on pages 152 and 153:\\n\\\"This is contrary, we think, to every sound principle of the purpose and effect of proof. If admissions in favor of the insurer contained in an ex parte statement it has procured from the claimed additional assured, the driver of the insured vehicle, are binding on the named assured, and on persons claiming to have been injured by the vehicle, the rights of the named assured and of third parties under such policies would be of small value. For it is unfortunately true that ex parte affidavits, which do not speak the truth, are easily procurable, and are procured from willing persons, who, though they may not be corrupt, may be ignorant and easily led. If, to their effect against the affiant, there is added by the rule invoked, an effect against third persons, such affidavits will be at a premium, and the race for them-will be on.\\\"\\nWe are of the opinion that the ruling of the trial court in excluding this evidence was proper.\\nAffirmed.\\nMoss, C. J., and Lewis, Bussey and Brailsford, JJ., concur.\"}"

sc/2144408.json

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+"{\"id\": \"2144408\", \"name\": \"Dorothy M. THOMPSON, Respondent, v. Carol HOFMANN, Appellant\", \"name_abbreviation\": \"Thompson v. Hofmann\", \"decision_date\": \"1974-12-04\", \"docket_number\": \"19918\", \"first_page\": \"314\", \"last_page\": \"328\", \"citations\": \"263 S.C. 314\", \"volume\": \"263\", \"reporter\": \"South Carolina Reports\", \"court\": \"Supreme Court of South Carolina\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-11T01:06:35.963638+00:00\", \"provenance\": \"CAP\", \"judges\": \"Lewis and Bussey, JJ., concur.\", \"parties\": \"Dorothy M. THOMPSON, Respondent, v. Carol HOFMANN, Appellant\", \"head_matter\": \"19918\\nDorothy M. THOMPSON, Respondent, v. Carol HOFMANN, Appellant\\n(210 S. E. (2d) 461)\\nJohn H. Williams, Esq., of Williams & Johnson, Aiken, for Appellant,\\nMessrs. Rodney A. Peeples, of Blatt, Pales, Peeples, Bedingfield & Loadholt, Barnwell, and Ronald L. Motley, Esq., of Greenwood, for Respondent,\\nDecember 4, 1974.\", \"word_count\": \"3407\", \"char_count\": \"20792\", \"text\": \"Brailsford, Justice:\\nThis is an action for alienation of affection brought by Dorothy M. Thompson, the respondent, against Carol Hofmann, the appellant. The appellant is a resident of New Jersey, and was served under Section 10.2-806(1) (c), as reenacted in 1972, the so-called long-arm statute which provides for out-of-state service on non-residents in specified cases, including Section 10.2-803(1) (c), which provides :\\n\\\"(1) A court may exercise personal jurisdiction over a person who acts directly or by an agent as to a cause of action arising from the person's\\n\\\"(c) commission of a tortious act in whole or in part in this State;\\\"\\nThe defendant appeared specially to challenge the court's jurisdiction. She contends that the above-quoted section violates Article III, Section 17 of the Constitution of this State, which provides that \\\"every act or resolution having the force of law shall relate to but one subject, and that shall be expressed in the title.\\\" She also contends that if the section as reenacted in 1972 is declared valid, it cannot affect the service of process in this case without having an impermissibly retrospective effect. The defendant appeals from the lower court's order holding the service valid.\\nThe long-arm statute was originally enacted in 1966 as a floor amendment to the South Carolina Uniform Commercial Code, placed in Article 2 and styled \\\"Further Remedies.\\\" A number of out-of-state defendants successfully challenged its constitutionality under Article III, Section 17, quoted above, in the trial courts of this State and in the Federal courts. In reaction to this, the General Assembly in 1972 reenacted the long-arm provisions under the following title:\\nNo. 1343\\n\\\"An Act to reenact Part 8 of Article 2 of Act 1065 of 1966, relating to the Uniform Commercial Code, so as to make the provisions of Part 8 which relates to certain definitions, personal jurisdiction based upon enduring relationship, personal jurisdiction based upon conduct, provision for service outside the State and to state that other bases of jurisdiction shall be unaffected, to establish a manner and proof of service, to establish individuals eligible to make service, to establish individuals to be served and to provide that other provisions shall remain unaffected.\\\"\\nThe appellant's contention is that the 1972 Act relates to two subjects in violation of Article III, Section 17, because it purports to reenact part of the Uniform Commercial Code and yet provide for jurisdiction and out-of-state service in certain actions not germane to commercial transactions.\\nThis contention cannot be sustained. In cases too numerous to mention, this Court has declared in the strongest terms that every presumption will be indulged in favor of constitutionality of a legislative enactment, which will be declared unconstitutional only when its invalidity appears so clearly as to leave no room for reasonable doubt as to its conflict with the Constitution. 6 West's South Carolina Digest, Constitutional Law, Key No. 48(l)-(8) (1974 Supp.). It is also axiomatic that a statute will, if possible, be construed in a manner conforming to constitutional limitations. Ibid.\\nAct No. 1343 of 1972, while purporting to reenact Part 8 of Article 2 of Act 1065 of 1966 (Uniform Commercial Code), is a complete remedial statute of substantial benefit. Its homogeneous terms relate to but one subject which is expressed in its title in more detail than is required. But for the reference therein to the 1966 Act (UCC), there would be no semblance of a ground for an Article III, Section 17 challenge to its constitutionality. This reference adds nothing to the substantive provisions of the legislation. If necessary to sustain its constitutionality, which we do not concede, the references in the 1972 Act to the reenactment of Part 8, Article 2 of the 1966 Act should be disregarded as surplusage. This would leave the statute complete in itself and of identical meaning and effect as that enacted, thereby effectuating the legislative will rather than frustrating it. In short, the constitutional challenge to the 1972 Act relates to form only and lacks sufficient substaiffce to justify our striking it down as unconstitutional.\\nThe appellant's second argument is that even if the 1972 reenactment is valid, it cannot sustain service of process on her, because the cause of action sued upon arose in 1969, prior to the reenactment. However, the great weight of authority from other jurisdictions holds that long-arm statutes similar to that involved here, as distinguished from \\\"implied consent\\\" statutes, such as that involved in Johnson v. Baldwin, 214 S. C. 545, 53 S. E. (2d) 785 (1949), apply in actions commenced after the passage of the statute regardless of when the cause of action may have arisen. Annot., 19 A. L. R. (3d) 138, Sec. 4, p. 146 (1968); 62 Am. Jur. (2d), Process, Sec. 80 (1972). This rule, which we adopt, is applicable to this case.\\nAffirmed.\\nLewis and Bussey, JJ., concur.\\nMoss, C. J., and Littlejohn, J., dissent.\\nSections 10.2-801 through 10.2-809, 1962 Code of Laws (Supp. 1973); Act No. 1065, 54 Stat. 4027 (1966), reenacted, Act. No. 1343, 57 Stat. 2518 (1972). This is in large part the Uniform Interstate and International Procedure Act.\\nThe respondent here concedes the unconstitutionality of the 1966 Act, making a decision by this Court unnecessary.\"}"

sc/2146941.json

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+"{\"id\": \"2146941\", \"name\": \"The STATE, Respondent, v. Linda A. RUTLEDGE, Appellant\", \"name_abbreviation\": \"State v. Rutledge\", \"decision_date\": \"1973-07-18\", \"docket_number\": \"19665\", \"first_page\": \"44\", \"last_page\": \"52\", \"citations\": \"261 S.C. 44\", \"volume\": \"261\", \"reporter\": \"South Carolina Reports\", \"court\": \"Supreme Court of South Carolina\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T21:38:16.615810+00:00\", \"provenance\": \"CAP\", \"judges\": \"Moss, C. J., and Lewis, Bussey and Littlejohn, JJ., concur.\", \"parties\": \"The STATE, Respondent, v. Linda A. RUTLEDGE, Appellant\", \"head_matter\": \"19665\\nThe STATE, Respondent, v. Linda A. RUTLEDGE, Appellant\\n(198 S. E. (2d) 250)\\nMessrs. Albert Q. Taylor, Jr., of Leatherwood, Walker, Todd & Mann, and B. C. Thomason, Jr., of Love, Thornton, Arnold \\u25a0& Thomason, Greenville, for Appellant, cite:\\nMessrs. Thomas W. Greene, Sol., of Greenville, Donald V. Myers, and Dudley Saleeby, Jr., Asst. Attys. Gen., of Columbia, for Respondent, cite:\\nJuly 18, 1973.\", \"word_count\": \"1552\", \"char_count\": \"9321\", \"text\": \"Brailsford, Justice:\\nLinda A. Rutledge appeals from her conviction of the murder of her husband, Frank Rutledge, by means of a hired assassin. She charges error in the refusal of a severance, in the admission and exclusion of evidence and in the instructions to the jury. The sufficiency of the evidence to sustain the conviction is manifest and goes unchallenged.\\nFrank Rutledge, while standing outside a nightclub owned by him on White Horse Road in Greenville County, known as the Brass Monkey, on the night of September 18, 1971, was shot from behind.\\nRutledge also owned a liquor store in or near the City of Greenville. His wife assisted him in both businesses. The four persons in addition to Mrs. Rutledge, who are referred to in this paragraph, were all charged with complicity in the murder. Leroy Hailstock was manager of the Brass Monkey and was a daytime employee at the liquor store. Sale of liquor to bootleggers in and around Greenville was a big part of Rutledge's liquor business, and Hailstock made deliveries to these customers. Jerry Joe Henderson (the assassin) occasionally made deliveries of liquor for Rutledge, and frequented the Brass Monkey at night. Accompanied by Wayne Cook, he went to the liquor store at about noon on September 18, 1971. According to his testimony, he had a conversation with Mrs. Rutledge about killing her husband. This was one of a series of conversations extending back to July, during which he had agreed to kill Rutledge upon securing a suitable weapon. She told him that there was someone she wanted him to meet at the club that evening. Again accompanied by Cook, he went to the Brass Monkey, as directed by Mrs. Rutledge. Kirby Green was an habitu\\u00e9 of the club, and the State's testimony tended to establish that he was Mrs. Rutledge's paramour. There was some testimony indicating that Green was the person whom Mrs. Rutledge wanted Henderson to meet on the evening in question.\\nWhen Henderson encountered Hailstock and Green at the club, the former gave him a pistol, and according to Henderson's testimony, the latter gave him instructions (which were not followed) as to how the killing should be accomplished. Later in the evening someone asked for Rutledge, and Hailstock told his employer that he was wanted outside. When Rutledge responded to this message, Henderson killed him by shooting him in the back of the head.\\nAn indictment was returned by the grand jury charging Mrs. Rutledge, Hailstock and Henderson with murder and charging these three defendants and Green and Cook with conspiracy to commit murder. Prior to trial, a nolle prosequi was entered as to the conspiracy charge against Cook. The same disposition was made of the murder charge against Hailstock, and he pled guilty to the conspiracy count. Henderson pled guilty to murder. This left for trial the murder charge against Mrs. Rutledge and the conspiracy charge against her and the defendant Green. The three defendants whose cases were disposed of without a trial testified for the State.\\nThe first ground of appeal charges that the court erred in refusing appellant's motion that she be allowed a separate trial from Kirby Green. Recognizing that disposition of such a motion is discretionary, appellant contends that the judge abused his discretion by not recognizing and relieving her from the extreme prejudice which resulted from a joint trial. We find no merit. The prejudice of which appellant complains was simply inherent in the facts of the case and not in the joint trial. A separate trial would have provided neither escape from, nor mitigation of, whatever prejudice was engendered against her by the fact that she and her husband were of a different race from that of her alleged lover. The testimony of Hail-stock and Henderson, which branded her in the eyes of the jury as the instigator of her husband's death, would have been equally admissible, and equally prejudicial, on a separate trial. The argument that Green's release at the conclusion of the State's case by a directed verdict, left her \\\"holding the bag in the eyes of the jury\\\" is farfetched as is the final argument that, somehow, her trial with Green, under all of the facts, raised an implication of guilt by association.\\nThe next point argued is that the court erred in admitting into evidence, before the conspiracy had been established prima facie, testimony as to declarations of Henderson in furtherance of it. There is no doubt that the evidence offered by the State before closing its case was sufficient to establish the conspiracy. Hence, the error assigned relates merely to the order of proof. The trial judge necessarily has a broad latitude in the conduct of the trial, and the ruling complained of was peculiarly within his discretion. We find no error, certainly none to appellant's prejudice.\\nIt is also argued under this subdivision of the brief that certain testimony of Henderson, as to what Hailstock told him that appellant and Green had said about the payment of the balance of the money promised to him, should have been excluded as hearsay. The point is not properly before us because the testimony was not objected to on this ground at the trial, nor is it suggested by appellant's statement of any question on appeal.\\nAppellant next assigns error \\\"in prohibiting cross examination of State's witnesses as to deceased's illegal activities,\\\" and argues that this ruling denied her the opportunity to show that others had motives for taking his life. While the judge did curtail the cross examination of one witness on the ground that decedent's character and reputation were not in issue, we need not consider whether this was error. The subject was adequately covered elsewhere in the record, which paints the deceased as a ruthless man of violence, always armed, a fence of stolen property, and a principal supplier of liquor to the bootleg trade in the Greenville area. If a dollar was owed him \\\"(he) got his money,\\\" according to one witness; he \\\"used people,\\\" according to another. In addition, there was testimony that during the year before his death Frank received anonymous threats, and a fire of unknown origin occurred at his home. At about the same time, fires occurred at the homes of three of his liquor customers and at the place of business of another one. If there was error, in this respect, it did not deprive appellant of full opportunity to argue that Rutledge had s\\u00f3 conducted himself as to incur the enmity of many persons. We find no prejudice.\\nAppellant charges that the court erred \\\"in allowing the State on cross examination to inject the (defendant's) reputation and character when (such) had not been put in issue by this defendant.\\\" The record discloses that no such objection was made to the cross examination of appellant. Furthermore, much of counsel's argu ment on the point appears hypercritical, and, in large part, the cross examination now complained of was responsive to the testimony of the witness on direct examination. We have carefully considered the cross examination of appellant, and find nothing therein which would have warranted, certainly nothing which required, the intervention of the court.\\nAppellant's fifth ground charges that she was \\\"denied a fair and impartial trial under all the facts and circumstances of the case.\\\" The argument is largely a rehash of points already considered. The further claim that, under the circumstances here present, it was unfair to convict appellant on the testimony of Hailstock and Henderson actually goes to the weight to be given their testimony, and affords no basis for relief here.\\nThe case went to the jury at 7:30 P. M., Friday, July 28. After lengthy deliberations extending into the next day, the judge, at the request of the jury, again instructed it as to the law of the case. Whereupon, the following colloquy took place:\\n\\\"Foreman: We would just like to apologize for the long delay.\\n\\\"The Court: It's real complicated for any jury and I want to thank you. It's an important job to deliberate with each other and swap ideas.\\n\\\"Jury out: 12:55 P. M.\\n\\\"The Court: Anything further for the State or the Defendant? No exceptions or additions?\\n\\\"Solicitor Wilkins: No, Your Honor.\\n\\\"Mr. Taylor: No, Your Honor.\\\"\\nAppellant now assigns as her final ground of error the inadequacy of the instructions to inform \\\"the jury as to their proper duty as individual jurors in deliberating and arriving at a verdict. . . .\\\" The brief complains of the judge's failure \\\"to stress to each juror the importance of his own individual opinion. . . .\\\"\\nThe supplementary instructions reminded the jury that its verdict must be unanimous and contained nothing even remotely coercive. At least in the absence of a request therefor, the court did not err in failing to give more specific instructions of the tenor now insisted upon.\\nAffirmed.\\nMoss, C. J., and Lewis, Bussey and Littlejohn, JJ., concur.\"}"

sc/2147998.json

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+"{\"id\": \"2147998\", \"name\": \"Douglas Sarvis PAGE, Respondent, v. Macie Cooke PAGE, Appellant\", \"name_abbreviation\": \"Page v. Page\", \"decision_date\": \"1973-03-28\", \"docket_number\": \"19599\", \"first_page\": \"298\", \"last_page\": \"301\", \"citations\": \"260 S.C. 298\", \"volume\": \"260\", \"reporter\": \"South Carolina Reports\", \"court\": \"Supreme Court of South Carolina\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-11T02:40:07.706774+00:00\", \"provenance\": \"CAP\", \"judges\": \"Moss, C. J., and Lewis, Bussey and Littlejohn, JJ., concur.\", \"parties\": \"Douglas Sarvis PAGE, Respondent, v. Macie Cooke PAGE, Appellant\", \"head_matter\": \"19599\\nDouglas Sarvis PAGE, Respondent, v. Macie Cooke PAGE, Appellant\\n(195 S. E. (2d) 613)\\nHarry Pavilack, Esq., of Myrtle Beach, for Appellant,\\nPalma K. Huggins, Esq., of Conway, for Respondent,\\nMarch 28, 1973.\", \"word_count\": \"527\", \"char_count\": \"3083\", \"text\": \"Brailsford, Justice:\\nThe husband commenced this action for divorce on the ground of desertion in the Family Court of Horry County, and the wife filed a cross-bill for divorce and alimony on the ground of physical cruelty. The court found that the wife left the family home on January 19, 1971, and continuously absented herself therefrom, all of the elements of desertion being present, until the commencement of this action on January 20, 1972, and thereafter. The court also found that the charges against the husband of physical cruelty were not established by the evidence. Accordingly, a divorce was awarded to the husband on the ground of desertion. The court refused to consider the wife's claim to alimony, holding that the claim was precluded by the adverse judgment in a prior action by the wife in the circuit court charging the husband with physical cruelty and seeking separate support and maintenance and child custody. The wife has appealed.\\nThe prior action resulted in concurrent findings by the master and circuit judge that the wife was without just cause or excuse in leaving the marital abo,de and exonerating the husband of the charge of physical cruelty. However, the wife, having waived her claim to support for herself, was awarded custody of the children and $200.00 per month for their support.\\nWe need no,t review the evidence tending to support the charges of physical cruelty against the husband, which the court below found unpersuasive, because the precise issue was litigated between the same parties in the prior action in the circuit court, and was resolved against the wife by the judgment in that action. The prio,r judgment precludes the wife from relitigating that issue although the cause of action here is not the same as in the first action. 46 Am. Jur. (2d), Judgments, Sec. 415 (1969); Jones v. Hamm, 253 S. C. 283, 170 S. E. (2d) 206 (1969).\\nRegarding the former adjudication that the wife left the marital abode without just cause or excuse as conclusive against her claim to alimony in the divorce action, the court refused to hear her evidence relating to this claim. This was error. Only an adulterous wife is automatically barred from alimony by the terms of the statute. Sec. 20-113, Code of 1962. In all other cases \\\"the circumstances and conduct of an offending spouse might be such as to bar her from alimony but this is a matter solely for the trial judge, governed by equity and justice and the condition of bo.th parties. The exercise of such a discretion will not be disturbed on appeal unless an abuse thereof is shown.\\\" Herbert v. Herbert, S. C., 194 S. E. (2d) 238, 239 (1973); McKenzie v. McKenzie, 254 S. C. 372, 175 S. E. (2d) 628 (1970).\\nAffirmed as to award of divorce to respondent; remanded for consideration of appellant's claim to, alimony.\\nMoss, C. J., and Lewis, Bussey and Littlejohn, JJ., concur.\"}"

sc/2150170.json

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+"{\"id\": \"2150170\", \"name\": \"Marilyn Jane MACCARO and Kathleen McGee Maccaro, Respondents, v. ANDRICK DEVELOPMENT CORP., Appellant\", \"name_abbreviation\": \"Maccaro v. Andrick Development Corp.\", \"decision_date\": \"1984-01-03\", \"docket_number\": \"0034\", \"first_page\": \"96\", \"last_page\": \"102\", \"citations\": \"280 S.C. 96\", \"volume\": \"280\", \"reporter\": \"South Carolina Reports\", \"court\": \"South Carolina Court of Appeals\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T21:34:15.541664+00:00\", \"provenance\": \"CAP\", \"judges\": \"Sanders, C. J. and Gardner, J., concur.\", \"parties\": \"Marilyn Jane MACCARO and Kathleen McGee Maccaro, Respondents, v. ANDRICK DEVELOPMENT CORP., Appellant.\", \"head_matter\": \"0034\\nMarilyn Jane MACCARO and Kathleen McGee Maccaro, Respondents, v. ANDRICK DEVELOPMENT CORP., Appellant.\\n(311 S. E. (2d) 91)\\nCourt of Appeals\\nDrew A. Laughlin, of Bowen, Cooper, Beard & Smoot, Hilton Head Island, for appellant.\\nJames B. Richardson, Jr., Columbia, for respondents.\\nJan. 3, 1984.\", \"word_count\": \"1708\", \"char_count\": \"10325\", \"text\": \"Bell, Judge:\\nThis is an action for specific performance of a contract for the sale of real estate. The circuit court decreed specific performance in favor of the purchasers, the Macearos, on condition that they tender a mortgage in the form specified by the court. The seller, Andrick Development Corp., appeals from that decision, claiming the contract was rescinded prior to the commencement of suit. We affirm.\\nThe material facts are undisputed. In September, 1978, Andrick entered a written contract with two sisters, Kathleen and Marilyn Maccaro, to sell a condominium on Hilton Head Island. The agreed purchase price was $49,000.00, to be paid $1,000.00 as earnest money and $3,900.00 at closing. The contract provided:\\nThe balance of $44,100 to be financed by Seller at 9% simple interest for 30 years in equal monthly installments. Subject to credit approval by lender.\\nClosing was to be held on December 15,1978, with time stated to be of the essence.\\nFor reasons attributable to Andrick, closing was postponed several times. In the interval the sisters completed a credit application with Andrick. Their credit was approved as provided in the contract of sale.\\nIn late July, 1979, Andrick tendered closing documents to the sisters and proposed a closing date of August 1, 1979. Among these documents were a promissory note, mortgage, and settlement statement reflecting a sales price of $57,500.00. The mortgage was a standard form FNMA/ FHLMC Uniform Instrument containing twenty-three de tailed clauses and running to four pages of fine print. Paragraph 17 of the mortgage contained a lengthy \\\"due on sale\\\" clause.\\nThe sisters, upon advice of their father, a retired judge, refused to execute the proposed closing documents. Through their attorney, they insisted Andrick close at the contract price of $49,100.00 and objected to the \\\"due on sale\\\" clause in the mortgage. They did, however, indicate their willingness to execute a mortgage without the clause.\\nIn October, 1979, after unsuccessful negotiations between the attorneys for the parties, the sisters tendered the $3,900.00 due at closing and stated they were \\\"ready, willing and able to execute [a] promissory note in the amount of $44,100.00 with interest at 9% repayable to the seller in equal monthly installments over a period of thirty years.\\\" They then made formal demand that Andrick perform the contract according to its terms. A fruitless exchange of correspondence ensued. Finally, Andrick, on December 4,1979, returned to the sisters' attorney their check for the closing payment and refunded their earnest money, stating:\\nSince it is now apparent that your client desires not to comply with the terms of finances reasonably imposed by Andrick Development Corp., to wit: they will not agree to the execution of FNMA mortgage ., the contract is hereby declared null and void____\\nThe Macearos' suit for specific performance followed.\\nI.\\nThe circuit court ordered specific performance of the contract on condition that the Macearos deliver a mortgage without a \\\"due on sale\\\" clause. Andrick contends this ruling was erroneous. In its view, the contract of sale bound the Macearos to comply with all reasonable terms of financing imposed by the seller. According to Andrick, when the Macearos refused to execute a mortgage with the \\\"due on sale\\\" clause, they breached the contract. As breaching parties, Andrick argues, they are not entitled to specific performance. Bishop v. Tolbert, 249 S. C. 289, 153 S. E. (2d) 912 (1967).\\nTo prevail on its theory, Andrick had to show that an express or implied term of the contract bound the Macearos to give a mortgage on the seller's terms or with a \\\"due on sale\\\" clause. No express provision of the contract says the Macearos must furnish a mortgage on terms stipulated by the seller. Nothing in the contract mentions a \\\"due on sale\\\" clause. The contract merely requires Andrick to finance the unpaid balance at closing at 9% simple interest for 30 years. Correspondingly, the Macearos are obligated to repay the debt in monthly installments at the agreed interest rate over the specified term of years. The parties understood and intended the word \\\"financed\\\" to mean a secured purchase money loan, its ordinary connotation in a real estate transaction of this type. Thus, the Macearos were obligated to deliver a first mortgage at closing. However, there is no statement as to what terms the mortgage should contain. Had Andrick so chosen, it could have stated in the contract that the mortgage would be in the form prescribed by the lender.\\nIn the absence of an express agreement as to the contents of the mortgage, Andrick had the burden of showing an implied agreement that the mortgage would be on the seller's terms. As a general rule, implied terms are not favored in the law. Commercial Credit Corp. v. Nelson Motors, Inc., 247 S. C. 360, 147 S. E. (2d) 481 (1966). However, neither law nor equity requires every term or condition to be set forth in a contract. Where an implied term is necessary to effectuate the intention of the parties, the law will supply it. Commercial Credit Corp. v. Nelson Motors, Inc., supra. The unexpressed provision may be inferred from the language of the contract itself, or by looking to the external facts and circumstances surrounding the bargain, or by proving a general custom and usage of including certain terms as part of similar contracts. Commercial Credit Corp. v. Nelson Motors, Inc., supra; Burden v. Woodside Cotton Mills, 104 S. C. 435, 89 S. E. 474 (1916).\\nIn this case, Andrick failed to prove an implied term which would permit it to insist on a \\\"due on sale\\\" clause. There is no language in the contract from which to infer an agreement that the mortgage terms would be those specified by the seller. Andrick's argument that such an agreement is implied by the phrase \\\"subject to credit approval by lender\\\" is not persuasive. That clause simply gave Andrick the right to satisfy itself as to the Macearos' credit-worthiness before lending them the purchase money. It had nothing to do with the terms of the mortgage instrument. Moreover, Andrick admitted in its pleadings that the credit of the Macearos was approved by the lender as provided in the contract. This admission foreclosed it from arguing that the clause imposed further obligations on the Macearos which they had not met.\\nAs regards evidence extrinsic to the contract, Andrick proved only that it had used the same FNMA/FHLMC Mortgage form in other sales of condominiums. There is nothing in the record showing the form is generally and customarily used in real estate transactions or that the Macearos were chargeable with knowledge that Andrick normally used it. Likewise there was no proof that a \\\"due on sale\\\" clause was a customary provision in mortgage instruments in use in similar transactions at the time and place the contract was made. Indeed, during oral argument Andrick's counsel disclaimed any reliance on custom and usage to establish an implied agreement regarding a \\\"due on sale\\\" clause.\\nIn the absence of an express or implied agreement regarding inclusion of a \\\"due on sale\\\" clause in the mortgage, the Macearos' refusal to accept the clause did not constitute a breach of the contract. Thus, Andrick's purported rescission for breach was of no legal effect. The contract was still in force and subject to an action for specific performance.\\nII.\\nAs an additional reason for denying specific performance, Andrick argues the Macearos failed to tender full performance of their part of the bargain. In particular, Andrick emphasizes that the Macearos tendered the closing payment, but not a mortgage as required by the contract.\\nThe rules of equity concerning the necessity of actual tender are not as stringent as those of the law. Speed v. Speed, 213 S. C. 401, 49 S. E. (2d) 588 (1948). It is sufficient if the party seeking specific performance states in his pleading that he is ready, willing, and able to perform his obligations under the contract. Elliott v. Dew, 264 S. C. 40, 212 S. E. (2d) 421 (1975); Jackson v. Rogers, 111 S. C. 49, 96 S. E. 692 (1918). Moreover, where the contract has been repudiated by the other party or it is clear tender will be refused, the party seeking specific performance is relieved of the obligation to make tender. Speed v. Speed, supra; Elliott v. Dew, supra.\\nIn their complaint, the Macearos stated that they stand \\\"ready, willing and able to perform their obligations under the contract.\\\" In addition, Andrick repudiated the contract prior to institution of the suit for specific performance. It is also clear Andrick would have refused any tender that did not include a mortgage with a \\\"due on sale\\\" clause. Therefore, the Macearos were under no obligation to make a \\\"perfect\\\" tender before seeking specific performance.\\nIII.\\nThe final issue raised by Andrick is the failure of the trial court to award it interim interest on the purchase money as a condition of specific performance. Andrick bases its claim for interest on the fact that the Macearos took possession of the property shortly after the suit commenced. Normally, a purchaser in possession prior to closing is liable for interim interest in the absence of a contrary agreement of the parties. Administrators of Rutledge v. Executors of Smith, 6 S. C. Eq. (1 McCord Eq.) 399 (1826).\\nThe issue of interim interest was not raised in Andrick's pleadings and was not passed on by the circuit court. It cannot be raised for the first time in this Court. Santee Portland Cement Corp. v. Mid-State Redi Mix Concrete Co., Inc., 273 S. C. 784, 260 S. E. (2d) 178 (1979). Our decision on this point is without prejudice, however, to any right Andrick may have to claim interim interest in further proceedings before the circuit court.\\nFor the reasons stated, Andrick's exceptions are overruled and the judgment of the circuit court is\\nAffirmed.\\nSanders, C. J. and Gardner, J., concur.\\nFederal National Mortgage Association/Federal Home Loan Mortgage Corporation.\"}"

sc/2155388.json

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+"{\"id\": \"2155388\", \"name\": \"ROBERT TRENT JONES, INC., Respondent, v. B-F LIMITED PARTNERSHIP, Charles Lawrence Fielden, and Paul L. Kimberlin, individually and as general partners of B-F Limited Partnership, Defendants, of whom Paul L. Kimberlin, individually and as general partner of B-F Limited Partnership, is Appellant; NEWGOLF, INC., Respondent, v. B-F LIMITED PARTNERSHIP, Charles Lawrence Fielden, and Paul L. Kimberlin, individually and as general partners of B-F Limited Partnership, Defendants, of whom Paul L. Kimberlin, individually and as general partner of B-F Limited Partnership, is Appellant\", \"name_abbreviation\": \"Robert Trent Jones, Inc. v. B-F Ltd. Partnership\", \"decision_date\": \"1981-06-18\", \"docket_number\": \"21496\", \"first_page\": \"469\", \"last_page\": \"471\", \"citations\": \"276 S.C. 469\", \"volume\": \"276\", \"reporter\": \"South Carolina Reports\", \"court\": \"Supreme Court of South Carolina\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T21:06:57.395570+00:00\", \"provenance\": \"CAP\", \"judges\": \"Lewis, C. J., and Littlejohn, Gregory and Harwell, JJ-, concur.\", \"parties\": \"ROBERT TRENT JONES, INC., Respondent, v. B-F LIMITED PARTNERSHIP, Charles Lawrence Fielden, and Paul L. Kimberlin, individually and as general partners of B-F Limited Partnership, Defendants, of whom Paul L. Kimberlin, individually and as general partner of B-F Limited Partnership, is Appellant. NEWGOLF, INC., Respondent, v. B-F LIMITED PARTNERSHIP, Charles Lawrence Fielden, and Paul L. Kimberlin, individually and as general partners of B-F Limited Partnership, Defendants, of whom Paul L. Kimberlin, individually and as general partner of B-F Limited Partnership, is Appellant.\", \"head_matter\": \"21496\\nROBERT TRENT JONES, INC., Respondent, v. B-F LIMITED PARTNERSHIP, Charles Lawrence Fielden, and Paul L. Kimberlin, individually and as general partners of B-F Limited Partnership, Defendants, of whom Paul L. Kimberlin, individually and as general partner of B-F Limited Partnership, is Appellant. NEWGOLF, INC., Respondent, v. B-F LIMITED PARTNERSHIP, Charles Lawrence Fielden, and Paul L. Kimberlin, individually and as general partners of B-F Limited Partnership, Defendants, of whom Paul L. Kimberlin, individually and as general partner of B-F Limited Partnership, is Appellant.\\n(279 S. E. (2d) 613)\\nJohn C. Thompson, of Thompson, Henry & Lovelace, Conway, for appellant.\\nDavid R. Gravely, of Bellamy, Rutenberg, Copeland, Epps, Gravely & Bowers, Myrtle Beach, for respondents.\\nJune 18, 1981.\", \"word_count\": \"513\", \"char_count\": \"3184\", \"text\": \"Ness, Justice:\\nAppellant Paul L. Kimberlin appeals from an order directing him to sell his one share in Kimper, Inc. with the proceeds to be applied toward satisfaction of a judgment against him as a partner in B-F Limited Partnership. We reverse.\\nThe facts in this case are undisputed. Kimberlin became a general partner in B-F Limited Partnership, after it had executed promissory notes with respondent Jones. Default judgments were obtained against all the defendants of whom Kimberlin is appellant. After the sole assets of B-F Limited were sold at public auction and nulla bona return made by the sheriff of Horry County on the assets of Kimberlin, a supplemental proceeding was instituted against Kimber-lin to satisfy the judgment out of non-partnership assets. Kimberlin asserted his liability as a general partner was limited to partnership assets pursuant to S. C. Code \\u00a7 33-41- 390 (1976). The trial judge held Kimberlin was es-topped from raising this code section, as it is an affirmative defense and must be plead in an answer or is waived.\\nThe sole issue is whether \\u00a7 33-41-390 acts as a bar to liability or whether it merely limits recovery to- partnership assets.\\nIn construing a statute, the language should be given its plain and ordinary meaning. Worthington v. Belcher, 274 S. C. 366, 264 S. E. (2d) 148 (1980). Section 33-41-390 provides:\\n\\\"A person admitted as a partner into an existing partnership is liable for all the obligations of the partnership arising before his admission as though he had been a part ner when such obligations were incurred, except that this Viability shall be satisfied only out of partnership property.\\\" (Emphasis added.)\\nWe conclude the plain language of the code section does not bar liability on the part of an incoming partner, rather it merely limits recovery to partnership assets. Moreover, courts of this State are required to take judicial notice of the public laws or statutes. State v. Broad River Power Co., et al., 177 S. C. 240, 181 S. E. 41 (1935). We hold the debt, in any event, can only be satisfied out of the partnership properties in accordance with S. C. Code \\u00a7 33-41-390 (1976).\\nThe order of the trial court directing Kimberlin to sell one share of Kimper, Inc., a non-partnership asset, to satisfy the partnership debt is reversed.\\nReversed.\\nLewis, C. J., and Littlejohn, Gregory and Harwell, JJ-, concur.\"}"

sc/2165689.json

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+"{\"id\": \"2165689\", \"name\": \"The STATE, Respondent, v. James Allen SALES, Appellant\", \"name_abbreviation\": \"State v. Sales\", \"decision_date\": \"1985-04-01\", \"docket_number\": \"22270\", \"first_page\": \"113\", \"last_page\": \"115\", \"citations\": \"285 S.C. 113\", \"volume\": \"285\", \"reporter\": \"South Carolina Reports\", \"court\": \"Supreme Court of South Carolina\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T17:24:33.192987+00:00\", \"provenance\": \"CAP\", \"judges\": \"Littlejohn, C. J., and Ness, Gregory and Chandler, JJ., concur.\", \"parties\": \"The STATE, Respondent, v. James Allen SALES, Appellant.\", \"head_matter\": \"22270\\nThe STATE, Respondent, v. James Allen SALES, Appellant.\\n(328 S. E. (2d) 619)\\nSupreme Court\\nDeputy Appellate Defender William Isaac Diggs, of S. C. Office of Appellate Defense, Columbia, for appellant.\\nAtty. Gen. T. Travis Medlock, Asst. Attys. Gen. Harold M. Coombs, Jr., and Carolyn M. Adams, Columbia; and Sol. William B. Traxler, Jr., Greenville, for respondent.\\nHeard March 12, 1985.\\nDecided April 1, 1985.\", \"word_count\": \"521\", \"char_count\": \"2955\", \"text\": \"Harwell, Judge:\\nThe appellant James Allen Sales was convicted of voluntary-manslaughter in the death of his sister's boyfriend and received a sentence of ten years. We reverse.\\nThe appellant's sister, Jeanette, lived with her boyfriend, L. C. McDaniel. Jeanette and L. C. had a fight over L. C. buying liquor with grocery money. L. C. was intoxicated and hit Jeanette in the face with an iron poker. He chased her outside with another heavy object.'Several nieces of the appellant ran to his home and begged him to come to his sister's aid. When he arrived at Jeanette's home, he found her on the porch, holding her face where L.C. had struck her. She went back inside the house, and she and L.C. began to struggle over the heavy object. The appellant separated them, and L. C/. swung the obj ect at him. The two began to fight. The appellant eventually subdued L. C. by kicking him. L. C. did not survive.\\nThe sole issue on appeal concerns the jury on the law of self-defense. The appellant contends that the judge erred in refusing to charge that a person attacked on his own premises had no duty to retreat. We agree.\\nThe judge properly charged the jury that under the law of self-defense, a person may not only take life in his own defense but also in defense of a relative. State v. Hays, 121 S. C. 163, 113 S. E. 362 (1922). He also correctly stated that the right to intervene to protect the relative is subj ect to the same limitations as the right of self-defense. He then charged the jury the four elements of self-defense found in State v. Hendrix, 270 S. C. 653, 244 S. E. (2d) 503 (1978), including the duty to retreat.\\nA person attacked on his own premises, without fault, has the right to claim immunity from the law of retreat. State v. Grantham, 224 S. C. 41, 77 S. E. (2d) 291 (1953). Therefore, the appellant's sister had no duty to retreat. The intervenor assumes the rights and limitations of the person he acts to protect. 40 C.J.S. Homicide \\u00a7 108 (1944). The appellant thus had no duty to retreat, and the jury should have been so charged.\\nThe State contends that the error is harmless because the appellant used excessive force. We disagree. The jury could have found that self-defense did not apply, solely because of the appellant's failure to retreat.\\nOn retrial of this case, the judge shall refer to the self-defense charge approved by this Court in State v. Davis, 317 S. E. (2d) 452 (S. C. 1984).\\nThe judgment below is, accordingly,\\nReversed.\\nLittlejohn, C. J., and Ness, Gregory and Chandler, JJ., concur.\"}"

sc/2167908.json

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+"{\"id\": \"2167908\", \"name\": \"CHECKER YELLOW CAB COMPANY, INC., and Carolina Yellow Cab Company, Inc., Respondents v. CHECKER CAB AND PARCEL SERVICE, INC., and Larry E. Duncan, Appellants. (Two Cases)\", \"name_abbreviation\": \"Checker Yellow Cab Co. v. Checker Cab & Parcel Service, Inc.\", \"decision_date\": \"1986-01-09\", \"docket_number\": \"0604\", \"first_page\": \"608\", \"last_page\": \"614\", \"citations\": \"287 S.C. 608\", \"volume\": \"287\", \"reporter\": \"South Carolina Reports\", \"court\": \"South Carolina Court of Appeals\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T19:23:21.544211+00:00\", \"provenance\": \"CAP\", \"judges\": \"Shaw and Bell, JJ., concur.\", \"parties\": \"CHECKER YELLOW CAB COMPANY, INC., and Carolina Yellow Cab Company, Inc., Respondents v. CHECKER CAB AND PARCEL SERVICE, INC., and Larry E. Duncan, Appellants. (Two Cases)\", \"head_matter\": \"0604\\nCHECKER YELLOW CAB COMPANY, INC., and Carolina Yellow Cab Company, Inc., Respondents v. CHECKER CAB AND PARCEL SERVICE, INC., and Larry E. Duncan, Appellants. (Two Cases)\\n(340 S. E. (2d) 549)\\nCourt of Appeals\\nLeo A. Dryer and Randall M. Chastain, Columbia, for appellants.\\nDallas D. Ball, Liberty, for respondents.\\nHeard Nov. 12, 1985.\\nDecided Jan. 9, 1986.\", \"word_count\": \"1792\", \"char_count\": \"10595\", \"text\": \"Goolsby, Judge:\\nChecker Cab and Parcel Service, Inc., and Larry E. Duncan, individually and as President of Checker Cab, appeal a circuit court order finding them in contempt for wilful failure to comply with a court order arising out of a trademark dispute. The circuit court sentenced Duncan to ninety-days imprisonment. We affirm.\\nChecker Cab and Duncan also appeal the jurisdiction of the circuit court to issue a bench warrant for Duncan's arrest after they appealed the contempt order. At oral argument, however, the parties agreed this issue is now moot. We, therefore, do not consider the second appeal and accordingly dismiss it.\\nChecker Cab and Duncan operated a parcel delivery service. The respondents, Checker Yellow Cab Company, Inc., and Carolina Yellow Cab Company, Inc., initiated an action alleging Checker Cab and Duncan were infringing on its trademark. In a consent order dated February 18, 1983, Checker Cab and Duncan agreed that within ninety days they would cease all use and reference to the name \\\"Checker.\\\"\\nOn May 26,1983, the respondents filed a petition alleging Checker Cab and Duncan continued to use the word \\\"Checker\\\" in its business operations. After a hearing, the circuit court on June 3, 1983, in a written order found Checker Cab and Duncan in contempt for wilfully violating the February order and sentenced Duncan to ninety-days imprisonment. The circuit court, however, allowed Checker Cab and Duncan to purge themselves of the contempt by \\\"immediately\\\" ceasing to use the name \\\"Checker\\\" in any way, by not exposing \\\"anyone in the future [to] the name of Checker Parcel Service,\\\" and by doing and refraining from doing other things.\\nThe respondents filed a second petition three days later alleging Checker Cab and Duncan were continuing to use the name \\\"Checker.\\\" The petition requested the circuit court to find Checker Cab and Duncan in contempt and to require Duncan to serve the ninety-day sentence conditionally imposed by the circuit court in its last order.\\nOn August 16, 1983, following a bench trial, the circuit court ruled Checker Cab and Duncan had failed to purge themselves of contempt and both were \\\"in further contempt\\\" for violation of the June order. The circuit court found that after June 3, 1983, the name \\\"Checker Parcel Service\\\" appeared for several days on their mailbox and their telephone listing employed the name \\\"Checker Parcel Service\\\" and not their new name, \\\"Dixie Parcel Service.\\\" It ordered Duncan to serve ninety days in the county jail.\\nChecker Cab and Duncan first contend the circuit court erred in imposing an unconditional sentence because, both assert, they were found to be in civil contempt and not in criminal contempt. This contention has no merit.\\nA court has the responsibility of making sure its orders in a pending case are obeyed, and criminal contempt proceedings are a means to this end. Schiselman v. Trust Co. Bank, 246 Ga. 274, 271 S. E. (2d) 183 (1980). Indeed, criminal contempt proceedings are instituted for the purpose of vindicating the court's authority, while civil contempt proceedings are instituted to coerce obedience to a court order. Aurora Steel Products v. United Steelworkers of America, 94 Ill. App. (3d) 97, 49 Ill. Dec. 638, 418 N. E. (2d) 492 (1981). \\\"Criminal contempt is a form applied where the judgment is in punishment of an act already accomplished, tending to interfere with the administration of justice.\\\" Dyer v. Dyer, 213 N. C. 634, 635, 197 S. E. 157, 158 (1938).\\nClearly, the circuit court found Checker Cab and Duncan' to be in criminal contempt. The circuit court imposed the sentence on Duncan to uphold its authority and to punish Checker Cab and Duncan for their disobedience of an earlier order. See 17 Am. Jur. (2d) Contempt \\u00a7 4 at 7 (1964).\\nChecker Cab and Duncan further contend the circuit court had no remaining interest in punishing them because by the time of the August hearing the underlying controversy had terminated and, moreover, they were in compliance with the June order. This contention also lacks merit.\\nAlthough it is true civil contempt proceedings generally are abated by a final disposition of the cause in which the contempt occurred [see Brunson v. Brunson 91 S. C. 411, 74 S. E. 928 (1912); Clamp v. Hall, 335 S. E. (2d) 815 (S. C. Ct. App. 1985)], criminal contempt proceedings are not ordinarily abated by the termination of the main action. 17 C.J.S. Contempt \\u00a7 68 at 173 (1963); see State v. Nathans, 49 S. C. 199, 27 S. E. 52 (1897). Here, as we just stated, Checker Cab and Duncan were held in criminal contempt.\\nFinally, Checker Cab and Duncan argue the evidence is insufficient to prove they wilfully disobeyed the circuit court's order.\\nBecause the proceedings and judgment in the instant case involve criminal contempt, the appeal must be determined as if from a judgment in a criminal case. In re Moore, 79 S. C. 399, 60 S. E. 947 (1908); State v. Nathans, supra. We, therefore, examine the record to see if there is sufficient evidence to support the circuit court's factual findings. See State v. Bowers, 270 S. C. 124, 241 S. E. (2d) 409 (1978); State v. Johnson, 249 S. C. 1, 152 S. E. (2d) 669 (1967). In particular, we look to determine whether there is any evidence of a wilful disobedience of an order of the court. See Long v. McMillan, 226 S. C. 598, 86 S. E. (2d) 477 (1955). Since the element of intent is subjective, the issue concerning the contemnors' intent or purpose must necessarily be ascertained from all the acts, words and circumstances surrounding the occurrence. State v. Goff, 228 S. C. 17, 88 S. E. (2d) 788 (1955).\\nEvidence to support the circuit court's finding that Checker Cab and Duncan wilfully disobeyed its June order can readily be found in the record.\\nA photograph taken eight days after the circuit court's June order shows a mailbox used by Checker Cab and Duncan topped with the name \\\"Checker Parcel Service.\\\"\\nAlso, the respondents introduced a tape recording of a call placed to the telephone information operator in late June. The caller asked the operator for the telephone number of \\\"Dixie Parcel Service,\\\" Checker Cab's and Duncan's new business name. The operator replied there was no such listing; however, when asked whether there was a number for Checker Parcel Service in Cayce, South Carolina, which was Checker Cab's and Duncan's new business location, the operator gave the caller a telephone number.\\nAffirmed in part and dismissed in part.\\nShaw and Bell, JJ., concur.\"}"

sc/2178352.json

@@ -0,0 +1 @@
+"{\"id\": \"2178352\", \"name\": \"Eulalie K. HAMMOND, Kevin E. Linck, and Lynn Linck, Appellants v. TILGHMAN LAKES, INC., and Hugh J. Skelley, Jr., Respondents\", \"name_abbreviation\": \"Hammond v. Tilghman Lakes, Inc.\", \"decision_date\": \"1988-03-28\", \"docket_number\": \"1118\", \"first_page\": \"152\", \"last_page\": \"154\", \"citations\": \"295 S.C. 152\", \"volume\": \"295\", \"reporter\": \"South Carolina Reports\", \"court\": \"South Carolina Court of Appeals\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-11T01:06:41.891932+00:00\", \"provenance\": \"CAP\", \"judges\": \"Shaw and Cureton, JJ., concur.\", \"parties\": \"Eulalie K. HAMMOND, Kevin E. Linck, and Lynn Linck, Appellants v. TILGHMAN LAKES, INC., and Hugh J. Skelley, Jr., Respondents.\", \"head_matter\": \"1118\\nEulalie K. HAMMOND, Kevin E. Linck, and Lynn Linck, Appellants v. TILGHMAN LAKES, INC., and Hugh J. Skelley, Jr., Respondents.\\n(362 S. E. (2d) 446)\\nCourt of Appeals\\nB. Michael Brackett, of Sherrill & Townsend, Columbia, for appellants.\\nJohn P. Henry, Conway, for respondents.\\nHeard Nov. 16, 1987.\\nDecided March 28, 1988.\", \"word_count\": \"640\", \"char_count\": \"3839\", \"text\": \"Bell, Judge:\\nThis is an action for specific performance of a contract to convey real property. The purchasers, Kevin E. Linck and Lynn Linck, admit they were in default on the contract, but claim the default should be excused because the seller Tilghman Lakes, Inc., did not give them a proper notice of default and an opportunity to cure before terminating the agreement. The circuit court found that the Lincks had both proper notice and an opportunity to cure. It also found that at no time did they tender performance and that they were not in a position to comply with the contract themselves. The court, therefore, dismissed the action. The Lincks appeal. We affirm.\\nThe dispositive question on appeal is whether the circuit court erred in finding Tilghman Lakes gave proper notice of default under the terms of the contract.\\nThe contract called for closing on or before April 20,1985. The Lincks did not close on that date because the two institutions from which they sought purchase money loans refused to approve their credit. They concede that their failure to close on April 20, 1985, was an event of default under the contract. They argue, however, that Tilghman's written notice of default was defective because it declared the contract to be in default for failure to obtain financing. Since failure to obtain financing is not made an event of default by the contract, the Lincks assert the notice was not effective.\\nThe purpose of a notice of default is to give the party allegedly in default an opportunity to cure the default and meet his obligation. Wickahoney Sheep Company v. Sewell, 273 F. (2d) 767 (9th Cir. 1959). Notice of default also informs the defaulting party that the other is not waiving his right to performance of the contract. In the absence of a different agreement of the parties, the law will consider any notice sufficient if it accomplishes these purposes.\\nIf the contract itself prescribes the manner of giving notice, the parties are bound to comply with its terms. Notice given in the manner specified by the contract will ordinarily be deemed sufficient without futher enquiry. However, notice in a prescribed manner is not required where a party has actual notice and has not suffered prejudice by the other's failure strictly to follow the contract. Wickahoney Sheep Company v. Sewell, supra.\\nOn May 8, 1985, Tilghman sent a written notice of default by registered mail. It unequivocally stated that Tilghman was holding the Lincks in default. The contract required no more. The Lincks knew they were in default for failure to close the transaction on April 20,1985. They knew the contract gave them five days after notice to cure the default. They did not do so. Since the notice of default was in the manner prescribed by the contract and was also sufficient as a matter of law, the circuit court correctly determined that Tilgman had given proper notice.\\nWe have carefully considered the remaining issues raised by the Lincks' exceptions. We find it unnecessary to address them as they are manifestly without merit. See Section 14-8-250, Code of Laws of South Carolina, 1976, as amended.\\nAffirmed.\\nShaw and Cureton, JJ., concur.\\nEulalie K. Hammond, Mrs. Linck's mother, was originally a party to the sale. For reasons related to financing the purchase, her name was later removed from the contract, leaving the Lincks as purchasers. Hugh J. Skelley, Jr., an officer of Tilghman Lakes, is the person who eventually purchased the property after the Lincks defaulted.\"}"

sc/2182741.json

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+"{\"id\": \"2182741\", \"name\": \"James R. CLINE, Sr., Respondent v. NOSREDNA CORPORATION, INC. Employer, and United States Fire Insurance Company, Carrier, Appellants\", \"name_abbreviation\": \"Cline v. Nosredna Corp.\", \"decision_date\": \"1986-12-15\", \"docket_number\": \"0832\", \"first_page\": \"75\", \"last_page\": \"81\", \"citations\": \"291 S.C. 75\", \"volume\": \"291\", \"reporter\": \"South Carolina Reports\", \"court\": \"South Carolina Court of Appeals\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T22:33:47.917712+00:00\", \"provenance\": \"CAP\", \"judges\": \"Bell and Goolsby, JJ., concur.\", \"parties\": \"James R. CLINE, Sr., Respondent v. NOSREDNA CORPORATION, INC. Employer, and United States Fire Insurance Company, Carrier, Appellants.\", \"head_matter\": \"0832\\nJames R. CLINE, Sr., Respondent v. NOSREDNA CORPORATION, INC. Employer, and United States Fire Insurance Company, Carrier, Appellants.\\n(352 S. E. (2d) 291)\\nCourt of Appeals\\nErnest J. Nauful, Jr., and .David L. Morrison of Nauful & Ellis, P.A., Columbia, for appellants.\\nMartin S. Driggers and J. Michael Baxley, Hartsville, for respondent.\\nHeard Oct. 16, 1986.\\nDecided Dec. 15, 1986.\", \"word_count\": \"1662\", \"char_count\": \"10345\", \"text\": \"Cureton, Judge:\\nIn this worker's compensation action, James R. Cline (Cline) was awarded permanent total disability benefits for heart failure from his employer Nosredna Corporation (Nosredna). The single commissioner's award was affirmed by a majority of the Worker's Compensation Commission and the circuit court. Nosredna appeals. We affirm.\\nCline worked as food service manager since 1977 for Aunt Maude's Country Kitchen in Myrtle Beach, owned by Nosredna. Although the restaurant is only open during the tourist season (March through October), his was a full-time year-round position. As the food service buyer, Cline managed the day-time operation of the restaurant. He supervised the cooks, ordered, inspected and inventoried food, and shopped competitively for food and utensils. His normal working hours were approximately eight o'clock to four o'clock, six days per week. In off-season months, Cline worked five days per week looking for new restaurant locations and maintaining the restaurant until the tourist season.\\nIn April 1982, Nosredna opened a new restaurant, Aunt Maude's Low Country Seafood. Cline was also made food service manager of this restaurant. The new restaurant had an entirely different menu which required Cline to work with approximately ten new food suppliers. In addition, he supervised recipe development and preparation of condiments. Each restaurant had separate inventories, facilities, personnel, and books. The restaurants were one hundred fifty feet apart, requiring Cline to continuously traverse the distance between them each day. During the first four to six weeks of the opening of the second restaurant, Cline testified he worked seven days per week.\\nCline had a preexisting condition of congestive heart failure, for which he took medication. His employer was aware of this condition. On August 26,1982, Cline became ill at work. He was admitted to the hospital that evening and was diagnosed as having suffered a heart attack. His physician testified Cline suffered cardiac atrial fibrillation and congestive heart failure.\\nCline claimed worker's compensation, alleging his heart attack was caused by his stressful employment situation. Nosredna denied the claim, asserting the heart attack did not arise out of his employment and was not caused by any unusual stress at work.\\nThe single commissioner found the heart attack resulted from a stressful work situation which occurred when Cline was assigned the extra duties at the second restaurant. He found this \\\"covered accident\\\" was the culmination of a disease process which was clearly aggravated and accelerated by these unusual and extraordinary employment conditions. The commissioner awarded Cline weekly compensation of $166.66 commencing August 26,1982 and continuing for five hundred weeks. He also ordered Nosredna to pay all Cline's medical, hospital, surgical, doctor, nurse and drug bills incurred as a result of the injury for the rest of his life. A majority of the Commission and the circuit court affirmed this order.\\nI.\\nIn two related arguments, Nosredna claims Cline failed to carry the burden necessary to obtain an award for an accidental injury resulting from aggravation of heart trouble by failing to show substantial, reliable, and probative evidence of a sudden unusual exertion or strain related to Cline's employment.\\nCline relies on the language of Kearse v. South Carolina Wildlife Resources Department, 236 S. C. 540, 115 S. E. (2d) 183 (1960). Kearse states:\\na coronary occlusion or thrombosis suffered by an employee constitutes a compensable 'accident' if it is induced by unexpected strain or over-exertion in the performance of the duties of his employment or by unusual and extraordinary conditions in the employment.\\n236 S. C. at 544, 115 S. E. (2d) at 186 (emphasis added).\\nIn arguing the heart injury is not compensable without a sudden, unusual exertion or strain, Nosredna overlooks the fact that numerous cases have found a compensable injury where heart problems have resulted from extraordinary duties and an increase in hours worked over a period of time. See, e.g., Kearse v. South Carolina Wildlife Resources Department, supra; Poulos v. Pete's Drive-In No. 3, 284 S. C. 264, 325 S. E. (2d) 583 (Ct. App. 1984), cert. denied, 286 S. C. 128, 332 S. E. (2d) 529 (1985); Canady v. Charleston County School District, 265 S. C. 21, 216 S. E. (2d) 755 (1975). In this case Cline has demonstrated additional responsibilities attendant to the opening of the new restaurant in April 1982, such as to constitute unusual and extraordinary conditions in his employment. Under the scope of review determined in Lark v. Bi-Lo, Inc., 276 S. C. 130, 276 S. E. (2d) 304 (1981), we find sufficient evidence to uphold the Commission's award and the affirmance of the lower court.\\nAdditionally, Nosredna argues that no temporal relationship exists between the opening date of the new restaurant on April 7, and the date of the disabling injury on August 26. Nosredna notes that Cline had an admitted his- ' tory of heart problems dating from 1974-1975. It also notes that if Cline actually had a four to six week period of \\u2022 working seven hours per day, this ceased by the end of May.\\nThe record also contains evidence, however, that while the numbers of days per week decreased, Cline's additional responsibilities for the new restaurant continued until the day of his disabling injury. He continued to supervise the cooks, order, inventory and prepare food, and perform other routine maintenance in two restaurants rather than one.\\nNosredna admits a heart attack from a preexisting pathology coupled with sudden unusual exertion or strain is compensable. It is also true, as previously demonstrated, that a heart attack from a preexisting pathology coupled with unusual and extraordinary conditions of employment is also compensable. Brown v. LaFrance Industries, 286 S. C. 319, 333 S. E. (2d) 348 (Ct. App. 1985). Cline has demonstrated sufficient evidence of unusual and extraordinary work conditions. We find, therefore, that this argument is without merit.\\nII.\\nNosredna argues the question of whether an accident has occurred is jurisdictional. Thus, this Court has the power and the duty to make findings of fact in accordance with the preponderance of the evidence in determining this jurisdictional issue, since judicial determination of the issue will not be an invasion of the fact-finding role of the Commission. We disagree.\\nWhile the question of employment is jurisdictional, the question as to whether an accident has occurred is factual and does not go to the question of jurisdiction. Canady v. Charleston County School District, supra. Both parties agree the scope of review applied by the lower court was the substantial, reliable and probative evidence test enunciated in Lark v. Bi-Lo., Inc., supra. Under Lark, this Court is prohibited from overturning findings of fact made by an administrative agency unless there is no reasonable probability that the facts could be as related by a witness upon whose testimony the finding was based. Lowe v. Am-Can Transport Services, Inc., 283 S. C. 534, 324 S. E. (2d) 87 (Ct. App. 1984).\\nIn this case, there is sufficient evidence in the record to preclude this Court from overturning the factual findings of the Commission and the lower court. We reject Nosredna's argument, and affirm the decision under the scope of the substantial evidence test of Lark.\\nIII.\\nFinally, Nosredna argues the lower court erred in relying on the testimony of Dr. Trask in that the material facts in the record which relate to a subject on which his judgment was sought were not used as a basis for his opinion. More specifically, Dr. Trask was asked if the stress Cline had at work would have aggravated, contributed to, or hastened the condition Dr. Trask found. Nosredna argues the factors relating to Cline's alleged increase in duties were not in evidence and were not used as a basis for a hypothetical question to Dr. Trask.\\nDr. Trask was asked whether:\\nQuestion: [Ajssuming again that he had this predisposition to have this disease process, within a reasonable degree of medical certainty, do you have an opinion as to whether or not the stress th\\u00e1t he had at work based on the work description that you received, that that would have aggravated, contributed to or have hastened the condition that you found .\\nAnswer: Okay, to use the term probability again, it is my feeling that it's a very likely probability that his congestive heart failure was aggravated by the rigors of his job.\\nCounsel had previously asked Dr. Trask whether, assuming Cline was required from April of 1982 to manage the food services for two restaurants, he had an opinion as to whether that would aggravate his condition. At this point and earlier in his testimony, Dr. Trask referred to discussions he had with Cline regarding the stress in his employment and extended working hours. The gist of Dr. Trask's testimony is that Cline's job aggravated his condition. Where some of the details propounded in the hypothetical question may not have been specifically proven, no error has occurred if the material facts assumed were within the range of the foregoing evidence, and there is no error in permitting the expert to give his opinion in response thereto. Wright v. Graniteville Co., Vaucluse Division, 266 S. C. 88, 221 S. E. (2d) 777 (1976).\\nSouth Carolina requires that a medical expert must testify that the condition \\\"most probably\\\" resulted from the injury. Brown v. LaFrance Industries, supra. We find Dr. Trask's reply that Cline's job was \\\"a very likely probability\\\" in causing his congestive heart failure, combined with his other testimony, is sufficient to establish a causal connection between the condition of his employment and his injury. We find this argument to be without merit.\\nFor the reasons stated above, the award to Cline is Affirmed.\\nBell and Goolsby, JJ., concur.\"}"

sc/2185994.json

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+"{\"id\": \"2185994\", \"name\": \"The STATE, Respondent v. Daniel H. McCALL, Appellant\", \"name_abbreviation\": \"State v. McCall\", \"decision_date\": \"1991-04-22\", \"docket_number\": \"1650\", \"first_page\": \"465\", \"last_page\": \"470\", \"citations\": \"304 S.C. 465\", \"volume\": \"304\", \"reporter\": \"South Carolina Reports\", \"court\": \"South Carolina Court of Appeals\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T18:22:45.865168+00:00\", \"provenance\": \"CAP\", \"judges\": \"Bell, J. and Littlejohn, Acting Judge, concur.\", \"parties\": \"The STATE, Respondent v. Daniel H. McCALL, Appellant.\", \"head_matter\": \"1650\\nThe STATE, Respondent v. Daniel H. McCALL, Appellant.\\n(405 S.E. (2d) 414)\\nCourt of Appeals\\nJohn I. Mauldin, Greenville and SC Office of Appellate Defense, Columbia, for appellant.\\nAttorney Gen. T. Travis Medlock, Asst. Attys. Gen. Harold M. Coombs, Jr., and Miller W. Shealy, Jr., Columbia, and Sol. Joseph J. Watson, Greenville, for respondent.\\nHeard Feb. 18,1991;\\nDecided April 22, 1991.\\nRehearing Denied July 2,1991.\", \"word_count\": \"1600\", \"char_count\": \"9567\", \"text\": \"Gardner, Judge:\\nDaniel H. McCall (McCall) was charged with and convicted of robbery, kidnapping and murder. The trial judge sentenced him to two concurrent life sentences for murder and kidnapping and ten years for robbery to run consecutively with the life sentences. We affirm as modified.\\nISSUES\\nThe issues of merit are whether the trial judge erred (1) by denying McCall's request for an additional charge in response to the jury's request for a recharge on the issues of murder and the lesser included offense of involuntary manslaughter and (2) in sentencing McCall to life imprisonment for kidnapping when McCall also received a life sentence for murder.\\nFACTS\\nMcCall and two accomplices were driving on an interstate in Greenville County headed toward North Carolina when they saw A.R.M. Stroud standing beside his automobile, working on it. McCall and his accomplices stopped to rob Stroud. They offered to help him and when he opened his trunk to get more tools, McCall forced Stroud, who was a 72-year-old man with heart problems, into the trunk of his own car. McCall, following his accomplices, drove Stroud's car off the interstate, down a paved road and then turned onto a dirt road known as the Watson Logging Road. This was an isolated place. There they removed Stroud from the trunk and searched him, taking his money. They then forced Stroud back into the trunk of his car and left him in the car on the dirt road.\\nSeveral days later, Stroud's body was found in the trunk of his car. The testimony of record establishes that as a result of his being forced into the trunk and left there, Stroud died of a heart attack. According to the medical testimony of record he was, \\\"literally scared to death.\\\"\\nI.\\nThe first issue arises from the jury charges on murder and the lesser included offense of involuntary manslaughter. It involves the so call King charge, i.e., if the jury has a reasonable doubt as to whether the defendant was guilty of murder or a lesser offense, the doubt must be resolved in favor of the lesser offense. See State v. King, 158 S.C. 251, 155 S.E. 409 (1930).\\nThe trial judge submitted the murder charge under the Mouzon theory of implied malice, i.e., the killing of another by one with a depraved or malignant heart. He also submitted involuntary manslaughter as a lesser included offense, distinguishing it from Mouzon murder by describing it as an unin tentional killing of another with a reckless disregard for the safety of others (the victim). He charged the jury on \\\"reasonable doubt\\\" with respect to both offenses. Finally, the trial judge gave the following charge on reasonable doubt, murder and manslaughter.\\nLadies and gentlemen, if from the evidence in this case you have a reasonable doubt as to whether or not the defendant in this case is guilty as charged in these indictments, it would be your duty to acquit him. If with respect to the charge of murder, you have a reasonable doubt, in that case it would be your duty to resolve that doubt in his favor and then move on to consider the issue of whether or not he's guilty of involuntary manslaughter. Should you have a reasonable doubt as to his guilt of that, it would be your duty to acquit him of that. [Emphasis ours.]\\nAfter the beginning of deliberations, the jury asked for a \\\"clarification of the specific definitions and differences between involuntary manslaughter and murder.\\\" The trial judge repeated the basics of his previous charge on the definition of the crimes. He again explained the difference thusly: \\\"involuntary manslaughter involves a reckless disregard for the safety of others.\\\" Murder is a killing with malice and in this case, malice depends on a finding of a \\\"depraved heart or a malignant heart.\\\" At that point, McCall for the first time requested a King charge on resolving any doubt in favor of involuntary manslaughter. McCall argues the jury's question indicated they were \\\"battling between those two interpretations that are very close.\\\" The trial judge refused, ruling \\\"they undoubtedly understood my charge concerning that.\\\" McCall made no further arguments or motions on this issue.\\nThere is a nice difference in the King charge and the charge made. And our Supreme Court has held that the difference is one of substance. See State v. Jackson, \\u2014 S.C. \\u2014 , 389 S.E. (2d) 650 (1990). The jury in this case indicated they had a doubt as to whether McCall was guilty of murder or involuntary manslaughter. McCall vigorously argues he was entitled to a King charge. The trial judge erred in refusing to make the charge, but we hold it was harmless error. We affirm because the record before us is devoid of evidence supporting a charge of involuntary manslaughter. We hold that the trial judge erred in instructing the jury that the crime was applicable to the facts of this case. The fact that a trial judge errs in submitting an issue to the jury does not preclude affirmance by this court upon a proper ground sustained by the record. See State v. Davis, 278 S.C. 544, 298 S.E. (2d) 778 (1983).\\nThe trial judge in his charge to the jury described involuntary manslaughter simply as the killing of another without malice and with a reckless disregard for his safety. He failed to charge the jury that involuntary manslaughter does not include the killing of another while engaged in the commission of a felony.\\nThe record establishes that McCall was in the process of robbing and kidnapping Stroud when he killed Stroud by locking him in the trunk of his automobile. Both robbery and kidnapping are felonies. The law of involuntary manslaughter does not apply where a person in the commission of a felony unintentionally kills his victim.\\nOur research fails to reveal an up-to-date definition by our Supreme Court of involuntary manslaughter. Involuntary manslaughter may be described as having its origin in either of two situations. First, involuntary manslaughter may be described as the killing of another without malice and unintentionally, but while one is engaged in the commission of some unlawful act not amounting to a felony and not naturally tending to cause death or great bodily harm. The second situation may be described as the killing of another without malice and unintentionally but while engaged in the doing of a lawful act with a reckless disregard of the safety of others.\\nA careful reading of the above definition of involuntary manslaughter negates the applicability of that crime to the facts of this case. First, McCall was involved in the commission of the felonies of robbing and kidnapping. Stroud's death was the direct result of the kidnapping when McCall seized Stroud and locked him in his car. Except in rare situations, a person committing an unlawful act is legally responsible for all natural or necessary consequences thereof. One combining and confederating with others to accomplish an illegal purpose is criminally liable for everything done by either him or his confederates which follows incidentally in the execution of a common design as one of the probable and natural consequences, though not intended as a part of the original design or common plan. State v. Williams, 189 S.C. 19, 23, 199 S.E. 906, 908 (1938). [Emphasis ours.]\\nUnder the facts of this case, McCall intended to rob and kidnap Stroud; he is charged under the law with the legal responsibility of the consequences of his locking and imprisoning a 72-year-old man in the trunk of an automobile parked on an out-of-the-way logging road. McCall's argument that he did not intend to kill Stroud is untenable in view of the well-established law that a person is responsible for the results of his intentional and criminal acts. For this reason, we affirm McCall's conviction because it clearly appears of record that the law of involuntary manslaughter was not applicable to the facts of this case. The King charge was, therefore, inapplicable.\\nII.\\nWe vacate the sentence for kidnapping. The kidnapping punishment statute clearly mandates life imprisonment unless the defendant is sentenced under the murder statute. S.C. Code Ann. \\u00a7 16-3-910 (1976) (Emphasis added). Our Supreme Court has summarily vacated life sentences for kidnapping when the defendant received a life sentence under the murder statute. State v. Perry, 278 S.C. 490, 299 S.E. (2d) 324 (1983), cert, denied, 461 U.S. 908, 103 S. Ct. 1881, 76 L. Ed. (2d) 811 (1983).\\nCONCLUSION\\nFor the reasons given, we affirm the convictions of McCall for robbery, kidnapping and murder. We, however, vacate the sentence of kidnapping for the reasons stated. The conviction and sentences are affirmed as modified.\\nAffirmed as modified.\\nBell, J. and Littlejohn, Acting Judge, concur.\\nState v. Mouzon, 231 S.C. 655, 99 S.E. (2d) 672 (1957).\\nState v. Barnett, 218 S.C. 415, 421, 63 S.E. (2d) 57, 58 (1951).\\nSee S.C. Code Ann. \\u00a7 16-3-60 (1976) which modified Barnett by statutorily establishing the degree of negligence required in the second situation as a reckless disregard for the safety of others. See also 40 Am. Jur. (2d) Homicide \\u00a7 70 (1968), which discloses that the definition herein given is consistent with the law of the land.\"}"