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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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).\"}"
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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.\"}"
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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.\"}"
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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).\"}"
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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.\"}"
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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.\"}"
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+"{\"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\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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diff --git a/sc/2031355.json b/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.\"}"
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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.\"}"
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+"{\"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.\"}"
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+"{\"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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
\ No newline at end of file
diff --git a/sc/2150170.json b/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.\"}"
\ No newline at end of file
diff --git a/sc/2155388.json b/sc/2155388.json
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--- /dev/null
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@@ -0,0 +1 @@
+"{\"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.\"}"
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diff --git a/sc/2165689.json b/sc/2165689.json
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--- /dev/null
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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.\"}"
\ No newline at end of file
diff --git a/sc/2167908.json b/sc/2167908.json
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index 0000000000000000000000000000000000000000..649c80ca4e19164f31fac6ebb30a6a5826ef8267
--- /dev/null
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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.\"}"
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+"{\"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.\"}"
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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.\"}"
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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.\"}"
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+"{\"id\": \"222399\", \"name\": \"Price v. M'Gee\", \"name_abbreviation\": \"Price v. M'Gee\", \"decision_date\": \"1804-11\", \"docket_number\": \"\", \"first_page\": \"455\", \"last_page\": \"455\", \"citations\": \"1 Brev. 455\", \"volume\": \"3\", \"reporter\": \"South Carolina Law Reports\", \"court\": \"Constitutional Court of South Carolina\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T20:35:18.117399+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Price v. M\\u2019Gee.\", \"head_matter\": \"CONSTITUTIONAL COURT,\\nCOLUMBIA,\\nNOV. 1804.\\nPrice v. M\\u2019Gee.\", \"word_count\": \"129\", \"char_count\": \"725\", \"text\": \"Case from Darlington district. The following points were ruled.\\n1. That where the verdict is for the defendant, he has no right to tax costs for the plaintiff's witnesses, or to enter up judgment for any but his own costs.\\n2. That witnesses called and sworn at the trial, if it be not done fraudulently, and collusively, in order to increase costs, are intitled to their costs, though not subpoenaed. See 6 Mod. 11)5. 2 Stra. 1150. Doug. 557.\\n3. That notice is necessary to be given to the party against whom costs are taxed, of the taxation of costs ; unless the costs taxed, be for such ordinary business as is apparent by the record, and cannot admit of dispute.\"}"
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+"{\"id\": \"2342275\", \"name\": \"REESE v. LYON\", \"name_abbreviation\": \"Reese v. Lyon\", \"decision_date\": \"1883-09-24\", \"docket_number\": \"\", \"first_page\": \"17\", \"last_page\": \"22\", \"citations\": \"20 S.C. 17\", \"volume\": \"20\", \"reporter\": \"South Carolina Reports\", \"court\": \"Supreme Court of South Carolina\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T19:26:31.404619+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"REESE v. LYON.\", \"head_matter\": \"REESE v. LYON.\\n1. After default, the mortgagees of a chattel seized it; on the next day they refused to surrender possession to the mortgagor upon demand made and a tender by him of the debt and costs, unless they were also paid an unsecured claim held by them against him. Subsequently, they sold the chattel; and, afterwards, this action was instituted by the mortgagor against the mortgagees to recover the possession and for damages. Held, that the action could not be sustained as an action for claim and delivery, as the plaintiff had no title nor right to possession after seizure on condition broken.\\n2. Nor as an action to redeem, because not commenced until after seizure and sale.\\n3. Nor as one for damages, no wrongful act having been committed.\\n4. The only right of the mortgagor was to require an account from the mortgagees of the proceeds of sale, and in such action the mortgagees would be entitled to credit for the mortgage debt and expenses, and also for any unsecured claim held by them against the mortgagor.\\nBefore Mackey, J., Sumter, October, 1881.\\nThe opinion states the case.\\nMr. Jos. H. Earle, for appellant.\\nMessrs. J. J. Dargan and Marion Moise, contra.\\nSeptember 24th, 1883.\", \"word_count\": \"2148\", \"char_count\": \"12216\", \"text\": \"The opinion of the court was delivered by\\nMe. Justice McIvee.\\nThis action was commenced, as to the appellant, James W. Lyon, on February 12th, 1878 ; the other copartner, Samuel H. Lyon, not having been served with the summons, never became a party to the action. The case, as made by the testimony for the plaintiff, was, substantially, as follows: On February 5th, 1877, the plaintiff executed a mortgage to Lyon Bros. & Co. on certain personal property to secure the payment of a debt of $90 on or before October 15th, 1877. After default in payment of the mortgage debt, to wit, on January 10th, 1878, the mortgagees seized the' mortgaged property and took it into their possession, and on the next day plaintiff tendered to them the amount of the mortgage debt, together with the expenses of seizure, and demanded a return of the property. \\\"With this demand the mortgagees refused to comply, unless the plaintiff would also pay an additional amount, in which it was alleged the plaintiff had become indebted to the mortgagees after the execution of the mortgage, which additional indebtedness was, however, denied by the plaintiff. The plaintiff having refused to pay this additional sum, the property was sold at public sale under the mortgage, whereupon this action was brought, which, in form, appears to be an action to recover the possession of the mortgaged property, together with damages for its detention.\\nAt the close of plaintiff's testimony, a motion for non-suit was made upon the ground that, under the showing made, the action could not be maintained, \\\"whether the same be considered an action of claim and delivery of personal property, or an action in the nature of a bill to redeem.\\\" The Circuit judge refused the motion, \\\"and ruled that the plaintiff could not recover in an action of claim and delivery of personal property, or under a bill to redeem; but that the plaintiff would be entitled, under his complaint upon the case as proved by him, to a verdict for damages, because of the detention and sale of the mortgage property by the defendants after tender to them of the amount due under the mortgage, together with the costs of seizure, although such seizure of the mortgaged property was made by the defendants after condition broken.\\\" To this the defendant duly excepted.\\nThe testimony for defendants, in addition to what had been shown by the plaintiff, was to the effect that after the execution of the mortgage the plaintiff became further indebted to them in the sum of $160; and that the mortgaged property brought, at the sal\\u00e9, the sum of $135.\\nThe appellant requested the Circuit judge to charge the jury:\\n\\\" That it was the duty of the plaintiff to have tendered to the defendants the whole amount of the mortgage debt, and also the amount of his subsequent indebtedness to them.\\\" This his Honor refused to do; and, on the contrary, charged the jury: \\\"That the amount of the mortgage debt being tendered the mortgagees, together with the costs of seizure, the mortgagor was entitled to the possession of the mortgaged property, notwithstanding any subsequent indebtedness of the mortgagor to the mortgagees, and without tendering such indebtedness, this not being a bill to redeem.\\\" And he also charged: \\\" That the plaintiff being entitled to the possession of the mortgaged property from the time that he tendered to the defendants the amount of the mortgage debt, together with the costs of the seizure; that if such amounts were tendered as alleged, and if the defendants, refusing such tender, detained and sold the property, that the plaintiff was entitled to damages in this action;\\\" to all of which the appellant duly excepted. The jury found a verdict in favor of the plaintiff for the sum of $105, and from the judgment entered on such verdict, the defendant, James W.' Lyon, appeals, relying upon the points made by his exceptions as above stated.\\nWithout stopping to remark upon the apparent inconsistency between the ruling of the Circuit judge, upon the motion for a non-suit and his charge to the jury, we will proceed to consider and determine the real questions which we understand to be raised by this appeal. The fundamental inquiry is as to the effect of the tender of the mortgage debt made after breach of the condition of the mortgage, and after the mortgaged property had been taken into possession by the mortgagees, under the mortgage. There can be no doubt that upon breach of the condition of a mortgage of personal property the legal title to the property mortgaged becomes vested in the mortgagee. Wolf v. O'Farrel, 1 Tr. Con. Rep. 151, more fully reported under the title of Wolf v. Farrell, 3 Brev. 68; Trescott v. Smith, 1 McCord Ch. 486. The question then is, Does a tender, not accepted after condition broken, revest the title in the mortgagor ? If it did, then, as Chancellor Harper says, in Walling v. Aiken, McMull. Fq. 15, there would be no necessity for the mortgagor to invoke the aid of a court of equity by a bill to redeem, as he would have a complete remedy at law. Accordingly, it is laid down in books of established authority that a tender after condition broken of the mortgage debt, which is not accepted, will not revest the title in the mortgagor. Jones Chat. M. 633; 2 Hilliard Mort. 536; 2 Jones Mort., \\u00a7 892, 1798; Patchin v. Pierce, 12 Wend. 61.\\nIt is true, that in some of the States it is now held that a tender of the mortgage debt, made after breach of the condition, discharges the lien of a mortgage of real estate, because there, as well as in this State, the legal title does not pass even after breach of the condition; and it may be that here also a tender, after breach of the' condition of a mortgage of real estate, of which the mortgagor remains in possession, would be held to be a discharge of the lien of the mortgage, inasmuch as the legal title never passed. But that question is not now before us, and we are not to be understood as passing upon it. Here, we are dealing with a mortgage of personal property, under which the legal title unquestionably does pass upon breach of the condition, and the common law rule applies, under which the tender cannot have the effect of revesting the title in the mortgagor.\\nIt is quite clear that the mortgagees committed no violation of the rights of the mortgagor in seizing the mortgaged property upon default in the payment of the mortgage debt; and we think it equally clear that the subsequent tender of the mortgage debt did not destroy the right of the mortgagees, as legal owners, to sell the property. The only rights which the mortgagor had, after breach of the condition of the mortgage, were either to bring an action to redeem the mortgaged property, which, of course, must have been commenced before the foreclosure of the mortgage by a sale, or an action against the mortgagees to account for any surplus proceeds of the sale which might remain after satisfying the mortgage debt. This action, not having been commenced until after the sale, cannot be maintained as an action to redeem; and the plaintiff's only right, as mortgagor, was to an account of the proceeds of the sale, and to such an action the mortgagees would certainly have a right to set up any claim, whether secured by the mortgage or not, which they may have against the mortgagor. Such an action would be based upon the foundation of the implied contract of the mortgagees to pay back to the mortgagor the surplus proceeds of the sale, and any claim arising out of contract could be set up by the mortgagees as a counter-claim to such action.\\nEven in an action to redeem, the common law rule was that the mortgagor must pay not only the mortgage debt but also any other unsecured claim held by the mortgagee against the mortgagor; and this rule has been adopted in this State when the legal title is vested in the mortgagee. Walling v. Aiken, McMull. Eq. 1. \\\"Whether this rule would apply in the case of a formal mortgage of real estate, .under which the mortgagor retained possession, we are not now called upon to decide. But where a mortgagor goes into a court of equity and asks to have a deed, absolute in form, construed to be nothing more than a mortgage, and asks to redeem, or where a mortgagor comes to redeem a mortgage of personal property, under which the legal title is always vested in the mortgagee upon condition broken, then, as he is asking the aid of equity, he is required to do equity by paying all that may be due by him to the mortgagor, whether secured by the mortgage or not.\\nThe rule is different where the action is brought by the mortgagee to foreclose the mortgage. There the action being based upon the contract to pay the mortgage debt, the mortgagee is entitled to recover no more than the amount secured by such contract. Hence, the eases of Magwood v. Lubbock, Bailey Eq. *382; McCaughrin & Co. v. Williams, 15 S. C. 505, and Walker v. Walker, 17 S. C. 329, cited by respondent's counsel, which were, in effect, cases to foreclose a mortgage, do not apply. So, too, the case of Hunter v. Wardlaw & Edwards, 6 S. C. 74, was a case in which a mortgagee of personal property attempted to foreclose by seizure and sale after the mortgage debt was paid, as the court held, and, therefore, there was then no breach of the condition of the mortgage, and, consequently, the legal title never vested in the mortgagee.\\nWe think, therefore, that the Circuit judge erred in his charge to the jury; and that the case, as made by the plaintiff, cannot be sustained. It certainly cannot be maintained as an action of claim and delivery of personal property, for the plaintiff had no legal title, and no right to the possession of the property sued for. Nor can it b.e maintained as an action to redeem, as it was not commenced until after the foreclosure of the mortgage by seizure and sale. Nor is there any foundation upon which to rest, an action for damages, as it does not appear that the defendants have committed any wrongful act. They had a right to seize and sell the property as they have done, and they cannot be made responsible in damages for so doing. The only right which the plaintiff has is to require an account from his mortgagees of the proceeds of the .sale, in which accounting the defendants must be allowed .credit, not only for the mortgage debt, with the expenses properly incident to the seizure and sale of the mortgaged property, but also for any unsecured claims which the defendants, upon such accounting, may be able to establish against the plaintiff.\\nThe judgment of this court is that the judgment of the Circuit Court be reversed, and that the case be remanded to that court for such further proceedings as may be necessary to carry into effect the views herein announced, with leave to the plaintiff, if he shall be so advised, to amend his complaint so as to enable him to demand an accounting from the mortgagees of the proceeds of the sale of the mortgaged property upon the principles hereinbefore laid down.\"}"
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+"{\"id\": \"2352403\", \"name\": \"DANTZLER v. COX & DANTZLER\", \"name_abbreviation\": \"Dantzler v. Cox & Dantzler\", \"decision_date\": \"1906-10-30\", \"docket_number\": \"\", \"first_page\": \"334\", \"last_page\": \"341\", \"citations\": \"75 S.C. 334\", \"volume\": \"75\", \"reporter\": \"South Carolina Reports\", \"court\": \"Supreme Court of South Carolina\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-11T00:09:09.918669+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"DANTZLER v. COX & DANTZLER.\", \"head_matter\": \"DANTZLER v. COX & DANTZLER.\\n1. Evidence. \\u2014 Where fraud is alleged considerable latitude is permissible in the introduction of testimony, even when it is only remotely connected with the transactions out of which the controversy has arisen.\\n2. Appeal. \\u2014 Introduction of irrelevant evidence must necessarily be left in large measure.to the discretion of the trial Judge and his rulings are not appealable unless there be abuse of discretion.\\n3. Fraud \\u2014 New Trial. \\u2014 Verdict in favor of defendant alleging fraud will not be set aside because there is no direct and positive evidence sustaining the defense, where there are facts and.circumstances from which jury may properly have drawn the inference. That the plaintiff did not testify in reply to evidence charging him with fraud, is- a \\u25a0 circumstance inferentially supporting the charge.\\n4. New Trial will not be granted where jury found for all of partnership defendants when one of them did not answer, his liability being admitted; where record does not show that this ground was urged on motion for new trial below, nor mentioned when verdict was announced, and record shows that such defendant has not entered up judgment on verdict.\\nMr. Justice Woods thinks there was no evidence to support the verdict.\\nBefore Aldrich, J., Darlington, November Term1, 1904.\\nAffirmed.\\nAction- by D-. K. Dantzler against E. R. Cbx, A. L. Dantzler, J. E. No-rment, H. D. Norment and Dora N. Nettles, partners under firm name of Cox & Dantzler. From judgment for defendants, plaintiff appeals on following exceptions- :\\n\\u201cI. Because the Circuit Judge -erred in1 admitting the testimony' of the defendant, A. D. Dantzler, in regard to the amount of -money that he invested in the business- of the firm of the defendants, Cox & Dantzler, said testimony being entirely, irrelevant to any issue raised by the pleadings, because it is expressly admitted by the defendants, both in-their pleadings and their testimony, that the defendant, A. D. Dantzler, -was a member of said firm, and the nature or extent of his interest in said firm is not in issue, nor is it relevant to any fact in issue, it being manifest that said testimony was calculated to mislead and confuse the jury and to' create prejudice against the plaintiff.\\n\\u201cII. Because the Circuit Court erred in allowing the defendant, A. L. Dantzler, to testify as to how much money he drew for personal use from the firm of Cox & Dantzler from time to time, (1) because said testimony was entirely irrelevant to' any issue raised by the pleading's, and (2) because there was no evidence even tending to show that the plaintiff, D. K. Dantzler, had any notice or knowledge of the transactions in question, or was in' anywise connected therewith, it being the manifest effect of said testimony to confuse and mislead the jury, and to' prejudicially affect the plaintiff\\u2019s case\\n\\u201cIII. Because the Circuit Judge erred in permitting the defendant, A. L. Dantzler, to testify as to' how much board h'e paid, and when he paid it; how much life insurance he carried, and- the amount of his premiums; how much money he spent on a visit to' Washington, D. C., and where he got 'it from:, etc.; (1) because said testimony is manifestly irrelevant to' any issue in this case, and (2) because there is noi evidence tending to prove that the plaintiff, D. K. Dantzler, had any notice or knowledge of the transactions in question, or was in anywise connected therewith, it being the manifest effect of said testimony to' confuse and mislead the jury, and to prejudicially affect the plaintiff\\u2019s case.\\n\\u201cIV. Because the Circuit Judge erred in permitting the defendant, A. L. Dantzler, to testify in regard to various and sundry entries in the books of Cox & Dantzler, because there was absolutely no evidence tending to prove that -tire plaintiff, D. K. Dantzler, had any notice or knowledge.of such entries, or of any transaction affected thereby, or that he was in anywise connected therewith, it being manifestly the effect of said testimony to confuse and mislead the jury, and to prejudicially affect the plaintiff\\u2019s case.\\n\\u201cV. Because his Honor erred in permitting the defendant, E. R. Cox, and defendants\\u2019 witnesses, T. H. Coker, K. W. Sloan -and J. O. Muldrow, to testify in regard to entiics on the books of Cox & Dantzler by the defendant, A. L. Dantzler; and in regard to transactions of defendant, A. D. Dantzler, with his codefend-ants, without proving- that the plaintiff, D. K. Dantzler, had some notice or knowledge of said entries, or of the transactions affected thereby, or that he was in some way connected therewith, said testimony being entirely irrelevant and manifestly calculated to confuse and mislead the jury, and toi create prejudice against the plaintiff.\\n\\u201cVI. Because the Circuit Judge erred in admitting the books of Cox & Dantzler as evidence, without any proof that the plaintiff, D'. K. Dantzler, bad any notice or knowledge whatever of the entries therein, or of the transactions thereby affected, said books, being, under the circumstances., entirely irrelevant to any issue in this case, and being manifestly misleading and confusing to the jury, and calculated to' create prejudice against the plaintiff.\\n\\u201cVII. Because the Circuit Judge erred in admitting- testimony of K. W. Sloan in regard to. entries on the books of the defendants, Cox & Dantzler, pertaining to a transaction- of s-aid firm, with Mrs. J. J. WKllis, said testimony being manifestly irrelevant,\\u2019 and calculated to. mislead and confuse the jury, and to' prejudicially affect the plaintiff\\u2019s: case.\\n\\u201cVIII. Because the Circuit Judge erred in overruling plaintiff\\u2019s motion, at the close of the defendant\\u2019s testimony, to' strike out the testimony of E. R. Cox, A. D. Dantzler, T. H. Coker, K. W. Sloan, and J. O'. Muldrow, in so far as the same related to. the accounts of the firm of the defendants, Cox & Dantzler, and to the individual account of A. L. Dantzler, and in regard to all transactions between- members of the firm' of the defendants, Cox & Dantzler; and also all testimony in regard to. the power and authority of the defendant, A. D. Dantzler, to malee the notes in suit, because said testimony was entirely irrelevant, being unsupported by any evidence that the plaintiff, D. K. Dantzler, had any notice or knowledge of the matters in question, said testi many being manifestly calculated to* mislead and confuse the jury, and to create prejudice against the plaintiff.\\n\\u201cIX. Because the Circuit Judge erred in overruling plaintiff\\u2019s motion for a new trial, there being absolutely no testimony to* support the verdict of the jury, or tending in the slightest degree to prove fraud or collusion on the part of the plaintiff, as alleged in the answer.\\n\\u201cX. Because the Circuit Judge erred in refusing to set aside the verdict of the jury and grant a new trial, although the jury, in utter disregard of the evidence, found for the defendants generally, including the defendant, A. L. Dantzler, who did not answer the complaint, and whose liability is admitted.\\u201d\\nMessrs. Dar gad & Coggeshull and Stevenson & Matheson, for appellant.\\nThe former' cite: Limitation on right of member of firm ta contract for firm is not binding on strangers without notice: George on Part., 224, 228; 2 Pet., 284; 5 Pet., 52*9; 14 S. C., 621.\\nMessrs. Spears & Dennis, contra.\\nMr. Spears cites.: Question of relevancy of evidence is largely for trial Judge: 54 S. C., 335; 17 Oyc., 1118. In questions of fraud inferential facts may' be shown: 64 S*. C., 69. If there was error in-admitting evidence it was- cured by charge: 50 S. C., 136; 52 S. C., 18.\\nOctober 30, 1906.\", \"word_count\": \"2774\", \"char_count\": \"16361\", \"text\": \"The opinion of the Court was delivered by\\nMr. Justice Gary.\\nThis is an action upon two* promissory notes, alleged to have been executed by the defendants under their firm: name, in* favor of the plaintiff.\\nThe defendants denied the allegations of the complaint, except the fact of partnership*, and set up as: a defense, \\\"that at the time of the alleged execution, of the notes in suit, the defendant, A. B. Dantzler, was without authority to borrow money in* the firm* name, and if he did' borrow money from the plaintiff, and execute to him the notes in suit, it was for his own private benefit and use, and that the plaintiff had knowledge of these facts.\\\"\\nAlso, \\\"that the defendants, A. D. Dantzler, and his brother, the plaintiff, fraudulently and collusively made and accepted the notes in suit, in fraud of the rights of these defendants, and without their knowledge or consent; -and, so far as the partnership is concerned, these notes are without consideration.\\\"\\nAlso, \\\"that the plaintiff, in collusion with his brother, the defendant, A. L. Dantzler, fraudulently waited until after said business had been wound up, and the defendant, A. D. Dantzler, had drawn from the firm whatever amounts were due him for salary, before any demand was made, in order that these defendants might be compelled to pay the whole amount of the notes, although no consideration passed from said plaintiff to defendants.\\\"\\nThe jury rendered a verdict in favor of the defendants, and the plaintiff appealed upon exceptions, that will be set out in the report of the case.\\nWhen fraud is alleged, considerable latitude is permissible in the introduction of testimony, even when it is only remotely connected with the transaction out of which the controversy has arisen. One reason is, that in cases of fraud it frequently happens, that it is impossible to produce direct and positive evidence of such fact, and the party alleging it is necessarily forced to rely upon the inference to be drawn from the surrounding circumstances. There might not be a single fact, in itself, sufficient to establish the fraud, yet when they are considered together, their combined effect may produce conviction upon the minds of the jurors. Applying this rule to the case under consideration we are satisfied that the testimony, to the introduction of which the plaintiff objected, was admissible..\\nFurthermore, the introduction of irrelevant testimony must necessarily be left in large measure to> the discretion of the presiding Judge, and his rulings are not appealable unless there was an abuse of discretion, which has not been made to appear in this case.\\nThese views dispose of all the exceptions, except the ninth and tenth.\\nThe ninth exception assigns error in overruling the motion for a new trial, on the ground that there was no testimony to support the verdict. While there was no direct and positive testimony sustaining the defenses set up in the answer, still there were facts and circumstances, from which the jury might properly have drawn the inference, in favor of said allegations. The rule is thus stated in Railroad v. Partlow, 14 Rich., 237: \\\"It may be that no one of the facts would of itself warrant the inference and yet, when taken together, they may produce belief, which is the object of all evidence.\\\" In 1 Greenl. Ev., sec. 51 a, it is said: \\\"It is not necessary that the evidence should bear directly upon the issue. It is admissible if it tends to prove ihe issue or constitutes a link in the chain of proof; although alone it might not justify a verdict in accordance with it. All the circumstances mentioned in this ground may be regarded as links in the chain of proof, from which the jury might deduce the inference of the defendants' privity and direction in the acts of trespass. This is usually the case where an issue depends on circumstantial evidence. Among the circumstances was the fact that, having the opportunity to take the stand and exculpate himself, the defendant declined to do so.\\\" The plaintiff in the case under consideration failed to become a witness.\\nThe tenth exception assigns error in refusing to set aside the verdict, on the ground that the jury found for the defendants generally, including the defendant, A. L. Dantzler, who did not answer the complaint, and whose liability is admitted. The record does, not disclose the fact that this ground was urged upon the motion for a new trial; but the record does show that A. D. Dantzler has not entered up judgment on said verdict.\\nFurthermore, this objection should have been interposed when the verdict was announced.\\nIt is the judgment of this Court, that the judgment of the Circuit Court be affirmed.\"}"
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+"{\"id\": \"2352680\", \"name\": \"BUSSEY v. CHARLESTON AND WESTERN CAROLINA RY.\", \"name_abbreviation\": \"Bussey v. Charleston & Western Carolina Ry.\", \"decision_date\": \"1906-09-06\", \"docket_number\": \"\", \"first_page\": \"116\", \"last_page\": \"129\", \"citations\": \"75 S.C. 116\", \"volume\": \"75\", \"reporter\": \"South Carolina Reports\", \"court\": \"Supreme Court of South Carolina\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-11T00:09:09.918669+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"BUSSEY v. CHARLESTON AND WESTERN CAROLINA RY.\", \"head_matter\": \"BUSSEY v. CHARLESTON AND WESTERN CAROLINA RY.\\n1. Pleadings Construed. \\u2014 In the allegations that defendant wilfully and recklessly failed and refused to furnish transportation and that plaintiff was ejected from the train, but also that said ejectment was due to the unlawful, wilful and reckless conduct of the defendant, the latter words refer to \\u201cconduct\\u201d other than failure to transport.\\n2. Pleadings \\u2014 Evidence.\\u2014If complaint makes no reference to the defendant acting as agent in selling ticket over connecting lines, but defendant alleges, and relies on that fact, plaintiff may offer evidence tending to show that ticket was vitally defective over connecting lines.\\n3. Contract of Carriage of Passenger Construed. \\u2014 The ticket in question shows on its face that.it'was intended to have attached to it coupons for the several connecting roads over which defendant sold it to carry the passenger to her desination and back, and the defendant warranted the ticket to be good in form over its own and connecting lines. The fact that a conductor over a connecting line passed it on the outgoing trip does not bind the company so as to require another conductor on same road to receive it on return trip.\\n4. Appeal. \\u2014 Exceptions to evidence admitted over objection stating no ground or to evidence to which like testimony was.admitted without objection, will not be considered.\\n5. Ibid. \\u2014 Admission of irrelevant evidence is not appealable unless there was abuse of discretion in its admission.\\n6. Wilfulness. \\u2014 Irregular form of ticket under circumstances here and conduct of validating agent after being notified that passenger had been informed that her ticket was defective, tended to show recklessness and disregard of passenger\\u2019s rights.\\n7. Wantonness. \\u2014 To define wantonness as a conscious failure to observe due care; a conscious invasion of the rights of another; an intentional doing of an unlawful act, knowing such act to he unlawful, is correct.\\n-8. Wilfulness. \\u2014 Recklessness is the equivalent of wilfulness or intentional wrong.\\nBefore DanTzlER, J., Greenville, November Term, 1905.\\nAffirmed.\\nAction by Julia Emmie Bussey by guardian against Charleston and Western Carolina Railway Co. Erom judgment for plaintiff, defendant appeals, on following excep^tions:\\n\\u201c1. Because, as it is respectfully submitted, the presiding Judge erred in his. rulings upon the introduction of testimony in the following particulars:\\n\\u201c(1) In allowing the plaintiff to testify that the defendant\\u2019s conductor between Fountain Inn and Laurens, when he took up her ticket, told her that the form of it was not good, when such testimony was not in support of any allegation in the complaint, but was entirely outside of the issues made therein, and it was, therefore, incompetent.\\n\\u201c(2) In allowing the testimony just mentioned when, under the law, statements or admissions of this character by the defendant\\u2019s conductor cannot bind the defendant, as. there was noi testimony that he had authority to1 so bind defendant, and the testimony' was further incompetent on this ground.\\n\\u201c(3) In allowing the plaintiff to testify to conversations between her and one Richardson in the city of Louisville, and that the said party stated to- her that her ticket was all right, in support of a claim for damages on the ground that such ticket was not a good ticket,. when there was no such issue raised in the case, and such' testimony was, therefore, incompetent.\\n\\u201c(4) In allowing the plaintiff to testify that the conductor on the Queen & Crescent Road said to her that the ticket she had was not a valid one, and was not worth the paper it was written \\u2019on, in support of her claim for damages on the ground that she was not furnished a valid ticket, when there was no such allegation in the complaint and no such issue in the case, and when such conductor had no authority to bind, defendant to such admission, and, therefore, such testimony was incompetent.\\n\\u201c(5) In allowing the plaintiff\\u2019s counsel to ask the question of the defendant\\u2019s witness, Aiken, and requiring the same to be answered, as to' whether or not the ticket in this case was valid or invalid, regular or irregular, and why the same was irregular, when there was- no allegation in the complaint that the defendant had failed to furnish a good and valid ticket, and there was no such issue raised in the pleadings, and such testimony was-, therefore, incompetent.\\n\\u201c(6) In allowing the plaintiff\\u2019s counsel to ask the question of the defendant\\u2019s- witness, Aiken, and requiring the same to be answered, as to whether the ticket in this case was valid or invalid, regular or irregular, and why the same -was irregular, when the answer to such question was a mere matter of opinion upon a legal question of the validity of such ticket, and for that further reason, such testimony was incompetent.\\n\\u201c(7) In allowing the plaintiff\\u2019s counsel to1 ask the following question of the defendant\\u2019s witness, Aiken, and requiring such witness to- answer the same, to> wit: \\u2018Did you recognize that that ticket was binding upon yo-ur railroad ?\\u2019 when such question and the answer thereto' was incompetent, for the reason that it was simply giving the opinion of the witness upon a matter of law, which should have been decided by the Court.\\n\\u201c(8) In not allowing the witness, C. L. Townsend, to- answer the following question, and in sustaining the plaintiff\\u2019s objection thereto, namely: \\u2018Did you think that was'a good ticket when you sold it ?\\u2019 when such question and the answer thereto1 was competent in this case, being in support of' the defense that there was not a particle of malice, or wilfulness in the conduct of the said Townsend, as agent of the railway company, in issuing such ticket. .\\n\\u201c(9) In allowing-the plaintiff\\u2019s counsel to ask the witness, Townsend, the question, and requiring him' to answer it, \\u2018Did you have any other tickets for sale at the time except this?\\u2019 the error being that such testimony was incompetent, for that it tended to1 prove facts not alleged in the complaint, and it was, therefore, irrelevant.\\n\\u201c(10) In ruling that the testimony referred to in the 9th exception was competent on cross-examination, for the reason, as alleged by the Court, that defendant\\u2019s counsel had been allowed to1 ask the same witness in relation to the ticket, when, it is respectfully submitted, that the question referred to1 by the presiding Judge had been ruled incompetent, and when, further, even if allowed, such ruling would not be a justification, for the reason that the question asked by defendant\\u2019s counsel was merely for the purpose of showing that there was no wilful issuing of an illegal or irregular ticket by the defendant.\\n\\u201c2. Because, as it is respectfully submitted, the presiding Judge erred in refusing to1 grant the. defendant\\u2019s motion for a nonsuit at the close of the plaintiff\\u2019s testimony, when such motion should have been granted on the following grounds, and it was error of law to1 refuse to1 do so:\\n\\u201c(1) There was absolutely no> testimony tending to show any facts to go to the jury to entitle the plaintiff to punitive damages.\\n\\u201c(2) There being no testimony to go to the jury, upon which a verdict for punitive damages can stand, there was no1 issue for the jury at all, for the reason that the action was for punitive damages only, and hence, there could be no recovery of compensatory damages.\\n\\u201c(3)-There was no testimony upon which the jury could render a verdict against the defendant, C. & W. C. Ry. Co,, for either punitive or compensatory damages, because1 the contract introduced in evidence showed that the C. & W. C. Ry. Cot was not to be liable beyond its own lines.\\n\\u201c(4) Because the evidence showed that if there was any wrong done to the plaintiff, it was done by a railroad company other than the defendant, C. & W. C. Ry. Co.\\n\\u201c3. Because, as it is respectfully submitted, the presiding Judge erred in holding on the motion made by the defendant at the close'of plaintiff\\u2019s- testimony for a nonsuit, that such motion 'should not be granted, because there was .no evidence that the Queen & Crescent Railroad was a party to\\u2019 the contract evidenced by the ticket of the defendant, C. & W. C. Ry. Co., when the undisputed evidence on the part of the plaintiff showed that the ticket issued by the defendant had been recognized by the Queen & Crescent Railroad as a valid ticket, and that that company had allowed the plaintiff to ride on it on her trip- to Louisville, Ky.\\n\\u201c4. Because, as it is respectfully submitted, the presiding Judge erred in refusing to- grant the defendant\\u2019s motion for a nonsuit at the close of all the evidence in the case, and in not then holding that there was no evidence to go' to' the jury tending to show that the defendant. Charleston & Western Carolina Railway Company, had been guilty of any wilfulness or w-antonness whatsoever towards the plaintiff, and in not therefore granting the defendant\\u2019s motion for a nonsuit.\\n\\u201c5. Because, as it is respectfully submitted, the presiding Judge erred in charging the jury as a matter of-law that the defendant, in the ticket issued by it, guaranteed the plaintiff transportation from- Fountain Inn, S. C., to Louisville, Ky., and from1 Louisville, Ky., to Fountain Inn, S. C., when in such ticket the defendant did not make such guarantee for -itself, but only as agent beyond its own lines.\\n\\u201c6. Because, as it is respectfully submitted, the presiding Judge erred in charging the jury that the clause in the contract upon the face of the ticket in evidence reading as fol lows: \\u2018(10) Responsibility, in selling this reduced rate ticket for passage over other lines, and in checking baggag'e on it, this company acts only as agent, and it is not responsible beyond its own line,\\u2019 could not bind the plaintiff, unless the lines' over which she was to pass were attached to and made a part of the contract, or unless she had knowledge of the lihes over which she was to pass, when, we submit, under the law, the plaintiff was bound by such stipulation, whether the lines over which she was to pass were or were not mentioned in the ticket, and whether she did or did not know what such lines were to1 be.\\n\\u201c7. Because, as it is respectfully submitted, the presiding Judge erred in refusing to charge the jury in the language of the defendant\\u2019s third request, as follows: \\u2018The complaint does not allege wilfulness or want\\u00f3nness in the matter of furnishing a ticket to1 the plaintiff, and, therefore, there can be no recovery for any act of the defendant or any of its agents, in or about the furnishing of a proper ticket, or the 'failure to do so,\\u2019 when, we submit, unler the law, the defendant was entitled to\\u2019 have this instruction given to the jury, as the plaintiff had not alleged in her complaint against the defendant any negligence in failing to furnish a proper ticket, but, on the contrary, had alleged that the defendant furnished to the plaintiff a first class round trip ticket, which carried her safely from1 Fountain Inn to Louisville, and when her right to> recovery was 'based entirely upon the alleged wilfulness of the C. & W. C. Ry. Co. in ejecting the plaintiff from1 a train on the Queen & Crescent Road on her return trip.\\n\\u201c8. Because,'as it is respectfully submitted, the presiding Judge erred in his instruction to the jury in defining wantonness, to* be where one consciously .fails to observe due care, when we submit that such definition was erroneous in law, and tended to prejudice the rights of the defendant.\\n\\u201c9. Because, as it is respectfully submitted, the presiding Judge erred as a matter of law in refusing to grant a new trial on the first ground upon which motion for new trial was based, to wit: because there was no evidence showing or tending to show that any agent of the defendant railway company had committed a wrong toward the plaintiff, knowing it was a wrong-.\\n\\u201c10. Because the presiding Judge erred as a matter of law iii not granting a new trial on the second ground upon which motion therefor was based, to wit: because the verdict was contrary tO' the charge of the Court. The jury was instructed that unless they found from the preponderance of the evidence that some agent or agents of the railway company did a wrong to the plaintiff, knowing it was. a wrong, they could not find in favor of the plaintiff. There was not a tittle of evidence that any such wrong was committed, and, therefore, the failure to grant a new trial was error of law.\\n\\u201c11. Because the presiding Judge erred as> a matter of law in refusing to grant \\u00e1 new. trial on the third ground upon which the motion was based, namely: That there was absolutely no1 evidence tending to show that there was any wilfulness on the part of the defendant or its agents in the particulars stated in the complaint, and to allow a verdict to stand which was based upon wilful acts not alleged in the complaint, was error of law.\\n\\u201c12. Because the presiding Judge erred in not granting a\\u2019 new trial on the fourth ground upon whic\\u2019h motion therefor was based, namely; that the agent of the defendant committed no wrong toward the plaintiff knowingly, and showing, further, that the only damage or injury sustained by the plaintiff was a delay of one day, and a verdict for $2,500' was excessive, and we submit the failure to set it aside was error of law.\\u201d\\nMessrs. S. J. Simpson and M. P. Ansel, for appellant.\\nMr. Simpson cites .- Proof should be confined to allegations: 45 S. C., 278. Construction of ticket W0s for Court: Thomp. on Trials, sec. 377. Intent of agent is admissible to rebut imntonness: 57 S. C., 280'; 1 Wig. on Ev., sec. 581. Through ticket without coupons is valid:-3 Wood on R. R., sec. 359; 4 Elliott on R. R., sec. 1596; Hood v. R. R., 22 Conn. No act of any agent of defendant was wilful. 29 SC., 271; 62 S. C., 270; 64 S. C., 423; 68 S. C.. 98; 69 S. C., 434; 73 S. C.,.9; 72 S. C., 411, 343; 2 Suth. on Dan:., sec. 1093; 69 S. C., 445. Act of agent of connecting 'line was not act of agent of defendant: 26 S. C., 91; 65 S. C-, 523; 62 S. C., 414; 65 S. C., 103; 69 S. C., 110; Daniels v. Ry., 62 S. C. Passenger is bound by provision in ticket that defendant was agent of connecting line: 43 L. R. A., 140'; 65 S. C., 522, 103; 26 S. C., 91; Daniels v. Ry., 62 S. C.\\nMessrs. McCullough & McSw'ain, contra.\\nMr. McCullough cites: Conscious violation of rights of another brings\\u2019 liability for punitive damages: 65 S. C., 516; 69 S- C., 160. Conduct of agent in selling ticket veas reckless: 54 S. C., 498. An agent failing to disclose his principal is liable for his contracts: 1 Ency., 1122; Clark on Con., 742; 19 S. C., 354; 43 S. C., 461; 28 Ency., 174. Wantonness defined: 65 S. C., 510. '\\nSeptember 6, 1906.\", \"word_count\": \"4554\", \"char_count\": \"26664\", \"text\": \"The opinion of the Court was delivered by\\nMr. Justice Gary.\\nThis, is an action for damages, alleged to have been sustained by the plaintiff, through intentional wrong on the part of the defendant. The allegations of the complaint material to the questions involved, ar\\u00e9 substantially as follows:\\n\\\"(1) That on the 12th of June, 1905, the plaintiff applied to defendant's agent at Fountain Inn, S. C., for transportation to Louisville, Ky., and return, paid the agent the fare demanded for the ticket, and the agent delivered to her a round trip ticket for one first class passage and return, from Fountain Inn to Louisville, Ky.., via Spartanburg, S. C.\\n\\\"(2) That on the said day, plaintiff boarded one of defendant's trains, and was carried to Louisville; after arriving there, she applied to Jas. Richardson, special agent of the defendant, as directed by it, for an extension of her ticket, .until the 10th of July, 1905, which request was granted.\\n\\\"(3) That she complied with all the'requirements and conditions of the defendant; with reference to said transportation, and the defendant unlawfully, carelessly, recklessly, wilfully and wantonly failed and refused to furnish to- her transportation to Fountain Inn from Louisville, and on the 10th of July, 1905, she was ejected from the train .upon which she was traveling, and which was a train on the same road over which she traveled in going to Louisville, which ej ection was due to the unlawful, wilful, wanton arid reckless conduct of the defendant.\\n\\\"(4) That plaintiff was ejected at Danville, Ky.; she was an utter stranger in the town, did not have but two' dollars on her person, nor was there any one to1 whom she could appeal for relief; in her humiliated and deplorable condition, she telephoned. to a relative at a distance, who advanced money enough to\\u00a1 pay her hotel bill, and to* buy another ticket home, where she arrived-on the 13th of July, 1905.\\\"\\nThe defendant denied the material allegations of the complaint, and alleged:\\n\\\"That the contract between plaintiff and' defendant was, that the defendant, in selling said reduced rate return ticket, for passage over other lines than its own, acted only as agent, and is not responsible beyond its. own line, said ticket having the following conditions attached to the same, which was duly -accepted and agreed to by the plaintiff herein, to wit: '10. Responsibility. In selling this reduced rate ticket for passage over other lines, and in checking bagg-age on it, this company acts only as agent, and is not responsible beyond its own line.' That Danville, Ky., is not upon the line of road belonging to this defendant, nor operated by it.\\\"'\\nThe jury rendered a verdict in favor of the plaintiff for $2,500; and the defendant appealed upon exceptions, which will be set out in the report of the c\\u00e1se. Before proceeding to consider the exceptions, it will be necessary to determine what issues are raised by the pleadings.\\nThe complaint alleges that the plaintiff applied to the defendant's agent for trasportation to Louisville, Ky , and return, and paid to the agent the fare demanded for said ticket. The third paragraph of the complaint not only alleges that the defendant wilfully and recklessly failed 'and refused to furnish transportation, and that' the plaintiff was ejected from the train, but also that said ejection was due to the unlawful, wilful, wanton and reckless conduct of the defendant. Unless -the last mentioned words refer to conduct other than failur\\u00e9 to transport, then they are without force and effect, as that allegation had1 already been made. Pleadings under the Code are to be liberally construed, with a view to substantial justice between the parties, and, if possible, effect should be given to all the language of the complaint, instead of a part only. We are constrained, therefore, to rule that the word \\\"conduct\\\" did not have reference solely to the failure to furnish transportation. ,\\nThe complamt makes no reference whatever to the fact that the defendant was only acting- as agent, in selling the ticket over connecting lines; but the defendant relies upon this fact in its answer. The plaintiff had the right tc offer testimony for the purpose of showing that the ticket was vitally defective over connecting lines, as this fact would render ineffectual the defense set up in answer. It was only incumbent upon the plaintiff,. m the first instance, to introduce testimony tending to sustain the allegations of the complaint, in ortjler to, make out a primafacie case.\\nBefore proceeding to consider the specific assignments of error, we deem it advisable to state our construction of the contract. The ticket was composed of two parts, which, evidently, were not intended to be attached together for general use, as they contained inconsistent provisions. The heading or red part of the ticket states the following conditions: \\\"Good subject to conditions-printed below for one first class passage to Louisville, Ky., and return, via route designatid in coupons attached\\\"This ticket if presented by any other than the person named hereon, shall be forfeited, and any agent or conductor of any line over which it reads, shall have the right to take up and cancel the entire ticket.\\\" \\\"The holder of this ticket agrees, that the liability of the lines, over which this ticket reads, shall be,\\\" &c. \\\"This ticket is subject to the rules and regulations of each line, over which it reads.\\\" \\\"No agent nor employee of any line has power to alter, modify or waive any of the conditions named in this contract.\\\" \\\"In selling this reduced rate ticket for passage over other lines, and in checking baggage on it, this company acts only as agent, and is not responsible beyond its own line.\\\" (All the italics ours.)\\nThe only coupons attached are in the blue part of the ticket and are as follows:\\n\\\"Charleston and Western Carolina Ry.\\\" \\\"Round trip party ticket \\u2014 Going coupon.\\\" \\\"Good for 1st class passage 1 persons as punched in margin of return coupon, from Fountain Inn, S. C., Louisville, Ky., via Spartanburg.\\\"\\nThe return coupon is similar, except the starting point and destination are'reversed.\\nThe worls via route designated in coupons attached clearly show that the heading or red part of the ticket was intended to be attached to the coupons, designating the route over the connecting lines, and that the ticket was defective in form. (E. N. Aiken, traveling passenger agent of the Q. & C. Road, a witness for the defendant, testified that it is the universal rule to exchange coupon tickets with any road, that is financially sound; and that the plaintiff was ejected because her ticket was irregular.)\\nThe other words italicized also show that coupons designating the route over connecting lines were comtemplated so as to make the ticket complete.\\nThe words, \\\"no' agent .nor employee of any line has power to alter, modify, or waive any of the conditions named in this contract,\\\" are important, as they manifest an intention, on the part of the defendant to reserve the right1 to designate the route over the connecting lines, in the ticket itself, and to prevent a connecting line from recognizing the ticket unless it was mentioned in a coupon attached, and then setting up the claim that the ticket was sold over its line, and that the defendant acted as its agent in such sale. A conductor, therefore, on a connecting line, did not have the right to interpolate into the ticket provisions that would make it apply to- his line, and he was- not bound to- receive it in its vitally defective form. The words, \\\"in selling this reduced rate ticket for passage over other lines, this- company acts only as agent, and is not responsible beyond its o-wn line,\\\" must 'be construed in -connection- with the'otlier provisions of the ticket, when it will be seen that \\\"other lines\\\" mean other lines mentioned in coupons attached. When the defendant sold the ticket, there was an- implied agreement that it had made arrangements- with connecting lines to accept the ticket in the form in which it was sold. In other words, it warranted the ticket to be good in form, for one first class passage from Fountain Inn to\\u00a1 Louisville, Ky., and return, not only over its own but connecting lines.\\nThe appellant's attorneys seem- to recognize this principle, for in their argument they say: \\\"She might have complained, if, o-n the going trip-, she had been unable to ascertain the route she was to take, and noi one of the defendant's connections had 'been willing to recognize her ticket, as a legal contract on its behalf.\\\"\\nThey, however, contend that there was no failure in this respect; that as her ticket was recognized from Fountain Inn to- Louisville, there was no> ground for such complaint; and that the Q. & C. Road, having once recognized her ticket, it was legally bound to recognize it on her return trip. This view cannot be sustained, for the reason that the failure of one conductor to discharge his duty to eject a person attempting to ride upon a fatally defective ticket, would not bind the company, to the extent of preventing another of its conductors on a different train and at another time, from' refusing to recognize the said ticket.\\nWe now proceed to consider the exceptions in their regular order.\\nFirst exception. All- the particulars in which error' is assigned, except the eighth, must be overruled, for the reason, either that, the grounds of objection'.ten the introduction of the testimony were not specified, or testimony.to the same effect was afterwards introduced without objection, or the testimony was irrelevant.\\nThe introduction of irrelevant testimony must be left, in large measure, to the discretion of the presiding Judge, and his rulings are not appealable, unless there was an abuse of discretion, which does not appear in this case. The eighth, specification of error mentioned in said exception cannot be sustained', because the witness afterwards answered the question in the affirmative.\\nSecond exception. The very irregular form of the ticket, especially tinder the circumstances- of this- case, and the -conduct of the validating agent, after being notified that the plaintiff had been warned that her -ticket was defective, tended to show recklessness and a disregard of the plaintiff's rights.\\nThird exception. This- exception has been disposed of by what has- been already said.\\nFourth exception. The question presented by this exception has been disposed of.\\nFifth exception. The language of the presiding Judge, mentioned in this exception, forms only a part of his charge on the subject, and was. explained and qualified by the words' immediately following said language, in which he referred to the 10th clause of the ticket set out in the answer. But without the qualification, the charge was in conformity with our construction of the contract.\\nSixth exception. While this charge was erroneous, it was not prejudicial, under our construction of the contract.\\nSeventh exception. This exception is disposed of by what was said in determining what issues were raised by the pleadings.\\nEighth exception. This exception seems to have been abandoned, as it is not discussed by the appellant's attorneys in their argument. It forms only part of the sentence, which is as follows: \\\"Wantonness is a conscious failure to observe due care, a conscious invasion of the rights of another, an intentional doing of an unlawful act, knowing such act to have been unlawful.\\\" It is not necessary to cite authorities to show that the exception, even if it has not been abandoned, cannot be sustained.\\nNinth, tenth, eleventh and twelfth exceptions. These exceptions must be overruled for the reason thfit we have already shown there was testimony tending to prove recklessness, which is the equivalent of wilfulness or intentional wrong. Pickett v. Ry., 69 S. C., 445, 48 S. E., 466.\\nIt is the judgment of this Court, that the judgment of the Circuit Court be affirmed.\"}"
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+"{\"id\": \"240735\", \"name\": \"The STATE, Respondent, v. Albert GARVIN, Appellant\", \"name_abbreviation\": \"State v. Garvin\", \"decision_date\": \"2000-03-13\", \"docket_number\": \"No. 3130\", \"first_page\": \"122\", \"last_page\": \"127\", \"citations\": \"341 S.C. 122\", \"volume\": \"341\", \"reporter\": \"South Carolina Reports\", \"court\": \"South Carolina Court of Appeals\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T20:34:29.152443+00:00\", \"provenance\": \"CAP\", \"judges\": \"HEARN, C.J., and CURETON, J., concur.\", \"parties\": \"The STATE, Respondent, v. Albert GARVIN, Appellant.\", \"head_matter\": \"533 S.E.2d 591\\nThe STATE, Respondent, v. Albert GARVIN, Appellant.\\nNo. 3130.\\nCourt of Appeals of South Carolina.\\nHeard Dec. 8, 1999.\\nDecided March 13, 2000.\\nRehearing Denied Sept. 2, 2000.\\nAssistant Appellate Defender Tara S. Taggart, of S.C. Office of Appellate Defense, of Columbia, for appellant.\\nAttorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott and Senior Assistant Attorney General Norman Mark Rapoport, all of Columbia; and Solicitor Randolph Murdaugh, III, of Hampton, for respondent.\", \"word_count\": \"1363\", \"char_count\": \"8258\", \"text\": \"HOWARD, Judge:\\nAlbert Garvin appeals his conviction for resisting arresVassaulting an officer in violation of S.C.Code Ann. \\u00a7 16-9-320(B) (Supp.1999). We affirm.\\nFACTS/PROCEDURAL HISTORY\\nOn November 27, 1997, Beaufort County Narcotics Detective Jeffrey Light arrested Garvin and placed him in jail. Upon arrest, Garvin vowed to \\\"get even\\\" with Light. He did not post bond, so he remained in jail. Two days later, Light procured additional arrest warrants for Garvin. A detention officer escorted Garvin from the Beaufort County Detention Center holding area into the adjacent municipal courtroom, where he was served with the additional warrants. The detention officer then took Garvin before the municipal judge for a bond hearing. Detective Light and his supervisor were in the courtroom.\\nGarvin insisted the municipal judge call his uncle, allegedly a judicial officer from a neighboring county. When the judge refused, Garvin became hostile and verbally abusive. According to Detective Light, the custodial officer tried to escort Garvin from the courtroom to the holding cells. Instead of leaving, however, Garvin confronted Light's supervisor, shouting at him. Detective Light then stood up to assist the detention officer, whereupon Garvin struck him in the face. Garvin continued to struggle, running from the detention officer toward the holding cells. Garvin was eventually subdued by several detention officers, and returned to his jail cell. Both Light and his supervisor received injuries from the encounter and required hospital treatment.\\nAs a result of the incident, Garvin was indicted and tried for resisting arrest/assaulting an officer in violation of S.C.Code Ann. \\u00a7 16-9-320(B) (Supp.1999). Garvin appeals his conviction, arguing the trial court erred by refusing to grant his motions for directed verdict. We affirm.\\nLAW/ANALYSIS\\nGarvin asserts the trial court erred in denying his motion for a directed verdict because there was no evidence the officer Garvin allegedly assaulted was either att\\u00e9mpting to arrest him or effecting process, as required by the statute. We disagree.\\nIn reviewing the denial of a motion for a directed verdict, the evidence must be viewed in the light most favor able to the State. State v. Kelsey, 381 S.C. 50, 502 S.E.2d 63 (1998). \\\"[I]f there is any direct evidence or any substantial circumstantial evidence reasonably tending to prove the guilt of the accused, an appellate court must find that the case was properly submitted to the jury.\\\" State v. Rowell, 326 S.C. 313, 315, 487 S.E.2d 185, 186 (1997). Although the trial court should not refuse to grant the motion where the evidence merely raises a suspicion of the accused's guilt, the case must be submitted to the jury if substantial evidence which reasonably tends to prove the guilt of the accused, or from which his guilt can be fairly and logically deduced, exists. Id. The trial court is required, however, to direct a verdict when a material element of an offense is absent. State v. Gore, 318 S.C. 157, 456 S.E.2d 419 (Ct.App.1995).\\nThe statutory subsection under which Garvin was convicted provides:\\nIt is unlawful for a person to knowingly and wilfully assault, beat, or wound a law enforcement officer engaged in serving, executing, or attempting to serve or execute a legal writ or process or to assault, beat, or wound an officer when the person is resisting an arrest being made by one whom the person knows or reasonably should know is a law enforcement officer, whether under process or not.\\nS.C.Code Ann. \\u00a7 16-9-320(B) (Supp.1999).\\nGarvin argues his conviction can not stand because there is no evidence that the assault on Detective Light took place either while Garvin was resisting arrest or while Detective Light was attempting to effect process. We disagree with this assessment.\\nAlthough Garvin was in pre-trial confinement at the time of his arrest on the new charges, the law required that he be formally arrested and given an opportunity for bail, notwithstanding his inability to post bail on the existing charges. S.C.Code Ann. \\u00a7 22-5-510(B)(Supp.l999). Consequently, the law required the arresting officer to serve Garvin with the new warrants and bring him before the magistrate, as was done in this case.\\nGarvin had just been served with the new arrest warrants and brought before the magistrate for the setting of bond when the incident occurred. He had not been placed in confinement on the new charges in a cell at the jail. He assaulted two police officers, both of whom were known to him as law enforcement officers. Although these officers did not serve the warrants and did not have custody of Garvin, they came to the aid of the custodial officer when Garvin resisted her authority.\\nThis case is controlled by State v. Dowd, 306 S.C. 268, 411 S.E.2d 428 (1991). In Dowd, the defendant was taken into custody at the roadside. He was taken to a room at the city jail where the Breathalyzer test was administered. He was then \\\"booked\\\" into the jail. Only after these interim stops was he taken to his jail cell. The resistance to arrest occurred as he was being placed in the cell. Our supreme court held that the arrest was not complete at that stage, even though the defendant had been taken into custody at the roadside. In reaching this result, the court cited with approval the North Carolina case of State v. Leak, 11 N.C.App. 344, 181 S.E.2d 224 (1971). The facts in Leak are similar to the facts in this case.\\nIn Leak, the defendant was placed into custody and taken before the magistrate for service of the warrant and setting of bail. As the arresting officers escorted him from the courtroom to the jail cell, Leak assaulted the officer. The court described the issue as follows:\\nDefendant contends that at the time he was in the magistrate's office his arrest had been consummated, that the acts alleged to have occurred between the magistrate's office and the jail were not in connection with his arrest, therefore, he was not guilty of resisting arrest. We do not agree with this contention.\\nLeak, 181 S.E.2d at 225-26.\\nThe court defined arrest, quoting from Hadley v. Tinnin, 170 N.C. 84, 86 S.E. 1017 (1915), as follows:\\nThe term \\\"arrest\\\" has a technical meaning, applicable in legal proceedings. It implies that a person is thereby restrained of his liberty by some officer or agent of the law, armed with lawful process, authorizing and requiring the arrest to be made. It is intended to serve, and does serve, the end of bringing the person arrested personally within the custody and control of the law, for the purpose specified in, or contemplated by, the process.\\nId. at 226. The court then concluded that \\\"[t]he arrest of defendant in the instant case did not terminate until he was delivered to the jailer and properly confined.\\\" Id.\\nAs in Dowd and Leak, Garvin's arrest on the new charges had not been consummated at the time of the assault. Until officers had completed their task of confining Garvin within the jail cell, Garvin had not been brought within the custody and control of the law for the purpose specified in, or contemplated by, the process. Garvin's assault upon Detective Light and his supervisor, both clearly known to him as law enforcement officers, was in connection with this arrest. See Stevenson v. State, 335 S.C. 193, 516 S.E.2d 434 (1999) (offense of resisting arrest requires proof that a person knowingly and wilfully assaulted, beat, or wounded a law enforcement officer during an arrest when the person resisting knew or should have known the officer was a law enforcement officer). For this reason, we affirm his conviction.\\nAFFIRMED.\\nHEARN, C.J., and CURETON, J., concur.\"}"
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+"{\"id\": \"2509494\", \"name\": \"Henry Strange v. John Ellison\", \"name_abbreviation\": \"Strange v. Ellison\", \"decision_date\": \"1831-05\", \"docket_number\": \"\", \"first_page\": \"385\", \"last_page\": \"387\", \"citations\": \"2 Bail. 385\", \"volume\": \"18\", \"reporter\": \"South Carolina Law Reports\", \"court\": \"South Carolina Court of Appeals\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T21:55:49.450557+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Henry Strange v. John Ellison.\", \"head_matter\": \"Henry Strange v. John Ellison.\\nIf the holder of a promissory note sell or barter it, with the name of a third person indorsed, there is an implied warranty on his part, that the indorsement is genuine, unless it appear, that the transferee took it without reference to that security, or had agreed to run the risk of the indorsement being genuine.\\nTried before Mr. Justice Earle, at Fail-field, Spring Term, 1831.\\nThis was a summary process upon an agreement to deliver a certain quantity of corn and fodder, of the value of seventy-four dollars. Defence, that the agreement had been entered into in consideration of the transfer by plaintiff of a promissory note of one John Gibson, for ninety-four dollars and sixty-three cents, purporting to be indorsed by Tacitus G. Cassity; and that the said indorsement was a forgery.\\nIt did not appear that the plaintiff was aware of the forgery at the time of the transfer; nor was there any evidence that he had warranted the indorsement, or that he had referred to it as a security. He had however offered the note, with Cassity\\u2019s name indorsed, to two other persons, besides the defendant, and had not expressed to either of them any doubt of the indorsement. It was proved also, that Gibson was utterly insolvent at. the time, and that the fact was known by the defendant, who was selling off his stock of corn and fodder on credit, and had given notice, that in all instances an approved indorser would be required. It was either proved, or admitted, at the trial, that the indorsement of Cassity\\u2019s name was a forgery. The presiding Judge gave judgment for the. plaintiff; and this was a motion sjp reverse his decree.\\nClarke, for the motion.\\nPeareson, contra.\", \"word_count\": \"816\", \"char_count\": \"4632\", \"text\": \"Johnson, J.\\ndelivered the opinion of the Court.\\nEvery one who vends an article, impliedly undertakes that it is what its appearance indicates, and that it is not disguised so as to make it appear what it is not. The principle applies to all sorts of commodities, in whatever form they may exist. Pro missory notes are a common article of traffic, and their value is measuref] by the responsibility of the drawer and the indorser. The usual manner of indorsing, is by the superscription of the indorser's name, which constitutes the evidence of his liability. Finding a name so indorsed, one would necessarily conclude that it was placed there for that purpose; and it would as necessarily be looked to as a part of the security for the debt. If it happen there by fraud or by mistake, and the purchaser take it, ignorant of that fact, he is as much injured and deceived, as if he had been imposed on by counterfeit money; and the liability of the seller is the same.\\nThe note transferred by the plaintiff to the defendant was indorsed with the name of Tacitus G. Cassity. He was solvent, and it was known that the maker was insolvent. The strong presumption is that the defendant took it upon the credit of the indorser alone ; and however that fact might be, in the absence of all information on the subject, he will be presumed to have acted upon the appearances indicated by the note: and according to the rule, the plaintiff was bound to guarantee that these were real and not deceptive. The defendant might have taken upon himself the risk, whether this was or was not the genuine signature of Cassity; but to discharge himself from the liability arising out of the legal presumption, it was incumbent on the plaintiff to show it, and the error in the judgment of the Circuit Court, appears to me to have originated in expecting proof from the defendant, that the plaintiff had warranted it genuine. On this ground therefore the case must go back for a new trial.\\nBesides this, the plaintiff's own declarations furnish, in my view of them, very strong circumstances in aid of the legal presumption. He professes himself to be ignorant whether the signature was or was not in the hand-writing of Cassity: he does not pretend that he suggested any doubt about it to the defendant, much less, that the defendant agreed to accept it without that security; and he rests his defence solely on the ground, that he did not trade it as an indorsed note, or in other words, that he did not warrant Cassity's signature. That, as before shown, is not enough. He was bound to prove that defendant knew it was not Cassity's hand-writing; or that he had agreed to- run that risk. And taking these declarations all together, it strikes Me very forcibly, that if the plaintiff did not mislead the defendant, by holding out the name of Cassity as a security, he suffered him to deceive himself by the belief that it was.\\nMotion granted.\"}"
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+"{\"id\": \"2513165\", \"name\": \"S. A. Bobo v. John Bostick\", \"name_abbreviation\": \"Bobo v. Bostick\", \"decision_date\": \"1831-01\", \"docket_number\": \"\", \"first_page\": \"106\", \"last_page\": \"106\", \"citations\": \"2 Bail. 106\", \"volume\": \"18\", \"reporter\": \"South Carolina Law Reports\", \"court\": \"South Carolina Court of Appeals\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T21:55:49.450557+00:00\", \"provenance\": \"CAP\", \"judges\": \"Johnson J. and Harper J. concurred.\", \"parties\": \"S. A. Bobo v. John Bostick.\", \"head_matter\": \"S. A. Bobo v. John Bostick.\\nThe payee of a promissory note, if not actually interested, is a competent witness, in an action by the holder against the maker, to prove that it has been paid. Knight v. Packard, 3 M\\u2019C. 71. Jordaine v. Lashbrooke, 6 T. R. 601.\", \"word_count\": \"73\", \"char_count\": \"383\", \"text\": \"Per O'Neall J.\\non appeal from the decree of Mr. Justice Gantt, at Union, Fall Term, 1830.\\nJohnson J. and Harper J. concurred.\"}"
\ No newline at end of file
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+"{\"id\": \"281861\", \"name\": \"William R. HARRELL, Respondent, v. PINELAND PLANTATION, LTD., Petitioner, and Joseph Land and Company, Inc., Defendant\", \"name_abbreviation\": \"Harrell v. Pineland Plantation, Ltd.\", \"decision_date\": \"1999-11-22\", \"docket_number\": \"No. 25016\", \"first_page\": \"313\", \"last_page\": \"332\", \"citations\": \"337 S.C. 313\", \"volume\": \"337\", \"reporter\": \"South Carolina Reports\", \"court\": \"Supreme Court of South Carolina\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T18:39:37.846002+00:00\", \"provenance\": \"CAP\", \"judges\": \"FINNEY, C.J., and BURNETT, J., concur.\", \"parties\": \"William R. HARRELL, Respondent, v. PINELAND PLANTATION, LTD., Petitioner, and Joseph Land and Company, Inc., Defendant.\", \"head_matter\": \"523 S.E.2d 766\\nWilliam R. HARRELL, Respondent, v. PINELAND PLANTATION, LTD., Petitioner, and Joseph Land and Company, Inc., Defendant.\\nNo. 25016.\\nSupreme Court of South Carolina.\\nHeard March 16, 1999.\\nDecided Nov. 22, 1999.\\nRehearing Denied Dec. 14, 1999.\\nBert G. Utsey, III, of Sinkler & Boyd, P.A., of Charleston, for petitioner.\\nCarl E. Pierce and Joseph C. Wilson, IV, both of Hood Law Firm, of Charleston; and John E. Parker, of Peters, Murdaugh, Parker, Eltzroth & Detrick, P.A., of Hampton, all for respondent.\\nJoseph H. McGee, of Charleston, for defendant.\", \"word_count\": \"5563\", \"char_count\": \"34838\", \"text\": \"TOAL, Justice:\\nThis case involves a tort suit brought by respondent William Harrell (\\\"Harrell\\\") against petitioner Pineland Plantation, Ltd. (\\\"Pineland\\\"). The trial court dismissed Harrell's complaint. The Court of Appeals reversed and remanded the case for trial. Pineland appeals the decision of the Court of Appeals. We affirm in result.\\nFactual/Procedural Background\\nPineland is a California limited partnership. Haynes Kendall (\\\"Kendall\\\") is Pineland's general partner. Pineland's only enterprise is ownership and operation of a 275-acre plantation in Colleton County that Kendall maintains as a vacation resort. Pineland has never realized any profit from renting the site for hunting or recreational purposes. Kendall uses the plantation as a second home for his own entertainment and to host non-paying friends and family. Kendall has also used Pineland as a tax write-off.\\nPineland contracted with Folk Land Management, Inc. (\\\"Folk\\\") to run Pineland's daily operations and maintain the plantation. Beginning in 1990, Harrell was the Folk employee that supervised all the work on Pineland plantation. Harrell's duties at the plantation included supervising the maintenance of the land and equipment, planning timber harvests, managing wildlife for hunting purposes, and entertaining guests of the plantation. Harrell also assisted Pineland in creating a marketing plan for the plantation. As promotion for the plantation, Harrell hosted a non-paying travel agent at the resort. Pineland also developed a marketing brochure and other commercial literature.\\nOn July 23,1993, Kendall was staying at Pineland and asked Harrell to prepare the plantation for a party to include Kendall and his family and friends. No paying guests would attend the party. In preparation for the evening, Harrell did general yard-work, graded the dirt road leading to the house, and organized food for the evening's guests. Kendall also asked Harrell to attend the party with his wife and two children. While waiting for more guests to arrive, Kendall and Harrell threw a baseball together and decided to accompany Harrell's and Kendall's children in swimming in a pond on the property.\\nThe pond on the plantation contained a rope-swing going out over the water. Harrell used the swing several times to dive into the water. On one attempt, Harrell fell into the pond's shallow-end and broke his neck. As a result of the accident, Harrell is a quadriplegic with no mobility from the chest down.\\nFollowing his injury, Harrell filed a workers' compensation claim against Folk. The parties settled the claim for $1.1 million. The Workers' Compensation Commission approved the settlement. Harrell then brought this tort action against Pineland alleging negligence. The trial court dismissed Harrell's complaint under Rule 12(b)(1), SCRCP, finding that: (1) it lacked subject matter jurisdiction due to the exclusive remedy provision of the Workers' Compensation Act (the \\\"Act\\\"); and (2) Harrell could not deny his activities were under the Act because he had previously recovered workers' compensation from Folk. Harrell appealed the judge's rulings.\\nA three-judge panel of the Court of Appeals issued three separate opinions concerning Harrell's case. See Harrell v. Pineland Plantation, Ltd., 329 S.C. 185, 494 S.E.2d 123 (Ct.App.1997). Judge Connor wrote the lead opinion and concluded that Pineland was not engaged as a business at the time of Harrell's injury and, thus, could not qualify as a statutory employer. Judge Connor also found that even if Pineland were a business, it could not qualify for the exclusivity defense because Pineland failed to secure workers' compensation insurance or the payment of workers' compensation as required by the Act.\\nJudges Cureton and Goolsby disagreed with Connor's determination that Pineland was not operating as a business. Judge Cureton, however, agreed with Judge Connor that due to Pineland's failure to purchase workers' compensation insurance for itself, it was not entitled to the protection of the exclusivity provision. In addition, Judge Cureton found that Pineland was not entitled to the exclusivity defense because at the time of his accident, Harrell was not performing work that was part of the \\\"trade, business, or occupation\\\" of Pineland.\\nIn his dissent, Judge Goolsby found that Pineland operated as a business and was Harrell's statutory employer. Judge Goolsby further concluded that Pineland should have been afforded tort immunity under the Act because Folk carried workers' compensation insurance at the time of the injury. As a result, two judges concluded that Harrell could sue Pineland in an action at law and reversed the rulings of the trial court. See Harrell, 329 S.C. 185, 494 S.E.2d 123. This Court granted a writ of certiorari to consider the following issues:\\n1. Was Pineland engaged in a business at the time of Harrell's accident?\\n2. In a statutory employment analysis, is the focus on the specific activity of the worker at the time of an injury or on the general services and activities performed by the subcontractor?\\n3. Was Pineland Harrell's statutory employer under the Act?\\n4. Was Pineland immune from a tort suit by Harrell due to the exclusive remedy provision of the Workers' Compensation Act even though it did not purchase its own Workers' Compensation coverage or otherwise qualify as self-insured under the Act?\\nLaw/Analysis\\nThe determination of whether a worker is a statutory employee is jurisdictional and therefore the question on appeal is one of law. Glass v. Dow Chemical Co., 325 S.C. 198, 482 S.E.2d 49 (1997). As a result, this Court has the power and duty to review the entire record and decide the jurisdictional facts in accord with the preponderance of the evidence. Id.\\nI. \\\"Statutory Employer\\\" Status\\nThe initial question before this Court is whether Pineland has \\\"owner\\\" liability under S.C.Code Ann. \\u00a7 42-1 \\u2014 400 (1976). If so, Pineland would be deemed Harrell's \\\"statutory employer\\\" and liable for workers' compensation. See Parker v. Williams & Madjanik, Inc., 275 S.C. 65, 267 S.E.2d 524 (1980)(holding that an owner, in effect, becomes the employee's statutory employer, even though in law the owner is not the immediate employer of the injured worker). Section 42-1 \\u2014 400 provides:\\nWhen any person, in this section and \\u00a7 42-1-420 and 42-1-430 referred to as \\\"owner,\\\" undertakes to perform or execute any work which is a part of his trade, business or occupation and contracts with any other person (in this section and \\u00a7 42-1-420 to 42-1 \\u2014 450 referred to as \\\"subcontractor\\\") for the execution or performance by or under such subcontractor of the whole or any part of the work undertaken by such owner, the owner shall be liable to pay to any workman employed in the work any compensation under this Title which he would have been liable to pay if the workman had been immediately employed by him.\\nUnder this section, the Court must make two determinations in assessing whether owner workers' compensation liability will attach to Pineland: First, Pineland must qualify as a business under the Act. Second, Harrell's work must have constituted part of Pineland's \\\"trade, business, or occupation.\\\"\\nA. Pineland as a Business\\nHarrell asserts that Pineland was not a business at the time of his injury and therefore could not qualify as a statutory employer. We disagree.\\nSince the enactment of workers' compensation statutes, courts have given the word business \\\"its ordinary and popular meaning.\\\" 4 Arthur Larson, Workers' Compensation Law \\u00a7 50.22 (1998). For the purposes of workers' compensation, \\\"[t]he test is not whether the employer is in business for profit, but whether the employer is in business at all. If he supplies a product or service, it is immaterial what he does with his profits, or whether he expects or gets any profits at all.\\\" Id. at \\u00a7 50.44(a). Pineland operated as a vacation resort and provided this service to Pineland's owner, Kendall. Folk supplied the necessary labor to run Pineland and was responsible for entertaining the guests of the plantation, including Kendall. Harrell's job as an employee of Folk was to run the plantation for Pineland. Even though Pineland had not made any profit from renting to others at the time of Harrell's injury, that fact alone does not prevent Pineland from qualifying as a business for purposes of our workers' compensation law. Profit from the enterprise is not a condition precedent to liability for compensation.\\nB. Harrell's Work as Part of Pineland's \\\"trade, business, or occupation\\\"\\nInitially, the \\\"trade, business, or occupation\\\" analysis focuses on the work the owner has employed the subcontractor to complete. See Boone v. Huntington and Guerry Elec. Co., 311 S.C. 550, 552, 430 S.E.2d 507, 508 (1993)(\\\"[W]hen an owner contracts with a subcontractor to perform or execute any work which is a part of his trade, business, or occupation, the subcontractor becomes a 'statutory employee' of the owner for the purposes of workers' compensation liability.\\\"). Whatever the parties contract to call their relationship is not controlling in a statutory employment analysis. See S.C.Code Ann. \\u00a7 42-1-610 (1985)(\\\"No contract or agreement, written or implied, and no rule, regulation or other device shall in any manner operate to relieve any employer, in whole or in part, of any obligation created by this Title except as otherwise expressly provided in this Title.\\\"); see also Wilson v. Daniel Intern. Corp., 260 S.C. 548, 197 S.E.2d 686 (1973)(stating that the terminology used by the parties is not controlling of their relationship).\\nTo determine if there is a statutory employment relationship, this Court has established three tests based on S.C.Code Amn. \\u00a7 42-1-400 (1976). Owners are statutory employers for injuries related to activities that:\\n(1) are an important part of the trade or business of the employer;\\n(2) are a necessary, essential, and integral part of the business of the employer; or\\n(3) have been previously performed by employees of the employer.\\nGlass v. Dow Chemical Co., 325 S.C. 198, 201, 482 S.E.2d 49, 50 (1997). Owners are treated as statutory employers in these situations because an owner should not be able to avoid workers' compensation liability by subcontracting out the work of their business.\\nThe Glass tests differentiate between work done for an owner where it would be unfair to allow the owner to escape compensation responsibility and work provided to the business that would be outside the policy of the statutory section. In making this determination, \\\"it is often a matter of extreme difficulty to decide whether the work in a given case falls within the designation of the statute. It is in each case largely a question of degree and of fact.\\\" Marehbanks, 190 S.C. at 350-51, 2 S.E.2d at 828. When the Glass analysis establishes that the subcontractor's work for the owner was a part of the owner's trade, business, or occupation, then the employees of the subcontractor doing that work are the owner's statutory employees and any injury will be reviewed for workers' compensation coverage. Employees who work for the subcontractor but are not employed to do the work that the owner would normally do would not have a statutory employment relationship with the owner.\\nOnce the determination is made that there is a statutory employment relationship, the second step in the analysis is to treat the statutory employee as a direct employee of the owner to determine if workers' compensation is appropriate. In order for an employee, whether direct or statutory, to be entitled to workers' compensation benefits, he must show that he sustained an \\\"injury by accident arising out of and in the course of the employment.\\\" S.C.Code Ann. \\u00a7 42-1-160 (1985). The phrase \\\"arising out of' in the workers' compensation statute refers to the origin of the cause of the accident. See Bickley v. South Carolina Elec. & Gas Co., 259 S.C. 463, 192 S.E.2d 866 (1972). \\\"An injury arises out of employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal relationship between the conditions under which the work is to be performed and the resulting injury.\\\" Owings v. Anderson County Sheriffs Dep't, 315 S.C. 297, 299, 433 S.E.2d 869, 871 (1993). This second step, the analysis of whether the injury arises out of and in the course of the employment, is where the focus is on the individual activity of the worker with respect to the injury.\\nHarrell's argument that the focus should be solely on the activity of the worker at the time the injury collapses our two step analysis into one. If the Court adopted Harrell's approach, employees of a subcontractor would constantly move in and out of workers' compensation coverage throughout the workday based on the type of work they were engaged in at that very moment.\\nTurning to the facts of the instant case, we find that Pineland was Harrell's statutory employer. As discussed above, the first step of the statutory employment analysis involves determining if the work the owner has employed the subcontractor to complete is \\\"a part of his trade, business or occupation.\\\" S.C.Code Ann. \\u00a7 42-1-400. Focusing on the responsibilities Folk had in relation to Pineland, both the \\\"important part of the trade or business\\\" test and the \\\"necessary, essential, and integral part of the business\\\" test are met. Folk maintained every aspect of the daily operations of the plantation. Without the work of Folk and Harrell, Pineland would have had to hire direct employees to complete those duties. Their relationship is exactly the type that the statutory employer theory is meant to cover. See Carter v. Florentine Corp., 310 S.C. 228, 423 S.E.2d 112 (1992)(finding that an absentee landlord that hired a management company to run its only property was a statutory employer).\\nHarrell argues that he was not the statutory employee of Pineland because entertaining the non-paying boss of Pineland and his friends could not meet any of the tests put forth in Glass. As discussed above, the important factor is the relationship between the work Folk has been hired to do for Pineland and that work's relationship to the business of Pine-land. Preparing the plantation and entertaining guests is specifically what Folk and Harrell were hired to do for Pineland, it does not matter in this analysis that Kendall was Pineland's owner.\\nFor an injury to be covered by the Act it must have occurred by an accident \\\"arising out of and in the course of the employment.\\\" S.C.Code Ann. \\u00a7 42-1-160 (1985). Harrell has admitted that part of his job at Folk was to entertain the guests of Pineland, including Kendall. In light .of the circumstances surrounding Harrell's accident, his injury falls under the Act.\\nII. \\\"Statutory Employer\\\" Immunity\\nPineland argues that the Court of Appeals erred in holding that it could not claim immunity under the Act because it did not provide any form of workers' compensation insurance. We disagree.\\nWhen an employee and his or her employer accept the provisions of the Act, the employee's remedies under the Act exclude all other rights and remedies of the employee. S.C.Code Ann. \\u00a7 42-1-540 (1985). This section is known as the exclusive remedy provision, and it shrouds an employer with immunity from any actions at law instituted by the employee. Such immunity is part of the broader quid pro quo arrangement imposed upon the employer and employee by the Act. The employee \\\"receives the right to swift and sure compensation\\\" in exchange for giving up the right to sue in tort; the employer receives such tort immunity in exchange for complying with those provisions of the Act that insure swift and sure compensation for the employee. Parker v. Williams and Madjanik, Inc., 275 S.C. 65, 70, 267 S.E.2d 524, 526 (1980) (\\\"This quid pro quo approach to workmens' compensation has worked to the advantage of society as well as the employee and employer.\\\").\\nThe Act achieves such \\\"swift and sure compensation\\\" by requiring the employer to secure the payment of compensation under S.C.Code Ann. \\u00a7 42-5-10 (1985). Section 42-5-10 provides: \\\"Every employer who accepts the compensation provisions of this Title shall secure the payment of compensation to his employees in the manner provided in this chapter.\\\" S.C.Code Ann. \\u00a7 42-5-10. The very next section of the Act, section 42-5-20, prescribes how an employer must secure such compensation:\\nEvery employer who accepts the provisions of this title relative to the payment of compensation shall insure and keep insured his liability thereunder in any authorized corporation, association, organization, or mutual insurance association formed by a group of employers so authorized or shall furnish to the commission satisfactory proof of his financial ability to pay directly the compensation in the amount and manner and when due as provided for in this title. The commission may, under such rules and regulations as it may prescribe, permit two or more employers in businesses of a similar nature to enter into agreements to pool their liabilities under the Workers' Compensation Law for the purpose of qualifying as self-insurers.\\nS.C.Code Ann. \\u00a7 42-5-20 (Supp.1998).\\nAn employer who refuses or neglects to secure such compensation becomes liable either under the Act or in - an action at law. S.C.Code Ann. \\u00a7 42-5-40 (1985). Thus, an employer who fails to secure the payment of compensation as prescribed in section 42-5-20 loses its immunity under the Act's exclusive remedy provision. See 6 Arthur Larson, Workers' Compensation Law, \\u00a7 67.22 (1998) (\\\"A common exception to the exclusiveness of the compensation remedy is the right of suit against an employer who fails to secure his compensation liability by taking out insurance or qualifying as a self-insured.\\\").\\nPineland makes the argument that, as an \\\"owner,\\\" it may avoid the obligation of an employer to secure compensation, while at the same time retaining an employer's tort immunity under the Act's exclusive remedy provision. The plain language of our Act clearly does not support Pineland's position.\\nAs discussed above, when the elements of section 42-1-400 are satisfied, an owner, in effect, becomes the employee's \\\"statutory employer,\\\" even though in law the owner is not the immediate employer of the injured worker. Parker v. Williams & Madjanik, Inc., 275 S.C. 65, 267 S.E.2d 524 (1980); Marchbanks v. Duke Power Co., 190 S.C. 336, 2 S.E.2d 825 (1939). In other words, an owner is equated to an employer for purposes of the Act. This Court's first important decision on the subject of statutory employment was Marchbanks v. Duke Power Co., 190 S.C. 336, 2 S.E.2d 825 (1939). In Marchbanks, Duke Power contracted with an individual to paint 170 of its metal poles located around Greenville. This individual in turn hired Marchbanks to assist in the operation. Marchbanks was subsequently injured while painting one of the poles. He broughl a suit in tort against the owner, Duke Power. This Court held that Marchbanks' exclusive remedy against Duke Power, as his statutory employer, was through workers' compensation. The Court noted that Duke Power had accepted the provisions of the Act and, with the approval of the commission, became a carrier of its own insurance thereby securing the payment of compensation. The Court concluded that Duke Power was entitled to tort immunity under the Act's exclusive remedy provision.\\nThe purpose of statutory employer immunity is to protect employees of direct employers who are financially \\\"irresponsible. Younginer v. J.A. Jones Constr. Co., 215 S.C. 135, 54 S.E.2d 545 (1949); Marchbanks, supra. Prior to the passage of S.C.Code Ann. \\u00a7 42-1-415 (Supp.1998), discussed infra, a statutory employer had absolute liability to pay workers' compensation benefits. Long v. Atlantic Homes, 311 S.C. 237, 428 S.E.2d 711 (1993). Such liability was absolute because the injured employee could seek compensation from the statutory employer regardless whether the direct employer could pay. Id. at 240, 428 S.E.2d at 713 (\\\"Section 42-1-410 does not expressly require proof of the immediate employer's failure to pay.\\\"). The statutory employer's liability was also secondary, not because liability arose only if the immediate employer failed to provide compensation, but because S .C.Code Ann. \\u00a7 42-1^440 allowed for indemnity from the immediate employer. Id. The end result was that the owner and the immediate employer were subjected to the requirements of the Act, and the employees received \\\"double protection.\\\" Id. at 241, 428 S.E.2d at 713 (quoting Parker, 275 S.C. at 73, 267 S.E.2d at 528).\\nPineland urges this Court to adopt an interpretation of the Act that would allow it to claim tort immunity without complying with the quintessential obligation imposed upon it by the Act \\u2014 the duty to secure the payment of compensation. To accept Pineland's position would go against the clear mandates of the Act and overrule this Court's prior decisions which have consistently interpreted statutory employer liability as provid ing \\\"double protection\\\" for employees. See Long, supra; Parker, supra.\\nThe dissent mistakenly looks at Harrell's situation in hindsight. Denying a tort suit against Pineland because, as it turns out, Harrell successfully recovered some compensation from Folk ignores the policy behind requiring a statutory employer, as well as the direct employer, to secure payment of compensation in order to guarantee tort immunity. It is true that in this situation Harrell may recover in both tort and in workers' compensation. However, Harrell is recovering from two separate entities, each that owed him a responsibility to secure compensation.\\nThe dissent relies on section 42-5-40's statement that an employer who fails to secure compensation becomes liable to an employee \\\"either for compensation under this Title or at law\\\" in an attempt to restrict the injured employee to one recovery under an \\\"either/or\\\" approach. This position ignores that Folk and Pineland are separate entities each with the responsibility to secure compensation. Harrell recovered workers' compensation from Folk only, not Pineland, and Pineland failed to live up to its compensation responsibilities prior to Harrell's accident. The dissent's position would allow the statutory employer to enjoy tort immunity under the Act even though it has done nothing to secure the payment of compensation to the injured worker. If Pineland had secured compensation, then it could have recovered any compensation payments made to Harrell from Folk as the direct employer. See S .C.Code Ann. \\u00a7 42-1-440 (1976).\\nThe dissent is correct that the Act prohibits an employee from recovering both workers' compensation and a tort judgment from an employer who fails to secure compensation. Nonetheless, this case presents the obligations and rights of two separate employers. The dissent makes the statement that \\\"nothing in the Act entitles a claimant to recover both workers' compensation and tort judgment.\\\" However, nothing in the Act prohibits an employee from recovering both workers' compensation from one employer and tort damages from an upstream employer who failed to secure compensation. In fact, as discussed above, the plain language of the Act allows for such recovery.\\nRecent additions and amendments to the Act further support our holding on this matter. In 1996, the General Assembly added S.C.Code Ann. \\u00a7 42-1-415 (Supp.1998), which was later amended in 1997. Under section 42-l-415(A), a statutory employer is no longer directly liable for workers' compensation payments whenever documentation is presented to the commission that a contractor or subcontractor represented himself to the statutory employer as having workers' compensation insurance. Moreover, under section 42-l-415(D), a statutory employer retains any tort immunity it had prior to the passage of this section. The result is that a statutory employer need not secure the payment of compensation to avail itself of tort immunity under the Act, if the requirements of section 42-1-415 are met. The important implication for the instant case is that prior to the passage of section 42-1-415 and its 1997 amendment, a statutory employer, in order to claim tort immunity, was required to secure the payment of compensation as prescribed in section 42-5-20. See Vernon v. Harleysville Mut Cas. Co., 244 S.C. 152,135 S.E.2d 841 (1964) (in adopting amendment to a statute, the legislature is presumed to have intended to make some change in existing law).\\nWe therefore hold that Pineland may not avail itself of tort immunity under the Act's exclusive remedy provision because it failed to secure the payment of compensation as prescribed by the Act.\\nConclusion\\nBased on the foregoing, the Court of Appeals is AFFIRMED IN RESULT.\\nFINNEY, C.J., and BURNETT, J., concur.\\nMOORE and WALLER, JJ., dissenting in a separate opinion.\\n. As noted by the Court in Marchbanks v. Duke Power Co., 190 S.C. 336, 343-344, 2 S.E.2d 825, 828 (1939):\\nIt was evidently realized by the General Assembly that it would not be fair to relieve the owner of compensation to employees doing work which was a part of his trade or business by permitting such owner to sub-let or sub-contract some part of said work. Doubtless in many instances such contractor would be financially irresponsible, or the number of employees under him would be so small, as in this case, that such contractor would not be required under the Act to carry compensation insurance. It was therefore, provided under the first paragraph that where such work in which the employee was engaged was a part of the owner's trade or business, the owner would be responsible in compensation to all employees doing such work, whether employees of an independent contractor or not.\\n. On this point, Marehbanks offers the following illustration:\\n[I]f a merchant wished to construct an apartment house, the General Assembly did not desire to hold him responsible in compensation for injuries to employees of the contractor to whom the contract had been awarded for the construction of such an apartment house. However, the General Assembly did intend under such circumstances to give some measure of protection to employees of any sub-contractor under such contractor. By the second paragraph it was intended that where the work was not a part of the owner's trade or business, the principal contractor would be liable in compensation to all employees of sub-contractors doing such work.\\nMarehbanks, 190 S.C. at 344, 2 S.E.2d at 828.\\n. An owner could subcontract out all of his work, as Pineland did, and greatly avoid any compensation responsibility. Under such an approach, a business that uses all subcontractors would not be liable for any workers' compensation coverage except for those specific acts that alone would rise to the level of the Glass analysis. The General Assembly's desire to prevent a business from avoiding the responsibility for workers' compensation by subcontracting out the work would be greatly frustrated by such a position. Such a rule would also exclude many workers and employers from the Act's coverage, which is against this Court's policy. See Baggott v. Southern Music, Inc., 330 S.C. 1, 5, 496 S.E.2d 852, 854 (1998)(recognizing this Court's policy \\\"to construe the Workers' Compensation Act in favor of coverage rather than exclusion.\\\").\\nFor example, two employees of Folk working on the plantation are injured. One is injured while mowing the grass. The second employee slips and falls on his way to the bathroom during a work break. Both could recover workers' compensation from Folk as their direct employer, but the second employee would then be able to sue Pineland in tort because his walking to the bathroom was not \\\"a part of the owner's trade, business or occupation\\\" that could meet any test set forth in Glass. Furthermore, and an even less desirable result, Pineland would be immune from a workers' compensation claim by the second employee, even if the subcontractor failed to provide coverage.\\n. Section 42-1-540 provides in pertinent part:\\nThe rights and remedies granted by this Title to an employee when he and his employer have accepted the provisions of this Title, respectively, to pay and accept compensation on account of personal injury or death by accident, shall exclude all other rights and remedies of such employee, his personal representative, parents, dependents or next of kin as against his employer, at common law or otherwise, on account of such injury, loss of service or death.\\nS.C.Code Ann. \\u00a7 42-1-540 (1985).\\n. Section 42-1-440 provides in full:\\nWhen the principal contractor is liable to pay compensation under any of \\u00a7 42-1-400 to 42-1 \\u2014 450, he shall be entitled to indemnity from any person who would have been liable to pay compensation to the workmen independently of such sections or from an intermediate contractor, and have a cause of action therefor.\\nA principal contractor when sued by a workman of a subcontractor shall have the right to call in that subcontractor or any intermediate contractor or contractors as defendant or codefendant.\\n. Section 42-1-415(A) provides in pertinent part:\\nNotwithstanding any other provision of law, upon the submission of documentation to the commission that a contractor or subcontractor has represented himself to a higher tier subcontractor, contractor, or project owner as having workers' compensation insurance at the time the contractor or subcontractor was engaged to perform work, the higher tier subcontractor, contractor, or project owner must be relieved of any and all liability under this title except as specifically provided in this section. In the event that employer is uninsured, regardless of the number of employees that employer has, the higher tier subcontractor, contractor, project owner, or his insurance carrier shall in the first instance pay aE benefits due under this title. The higher tier subcontractor, contractor, project owner, or his insurance carrier may petition the commission to transfer responsibiEty for continuing compensation and benefits to the Uninsured Employers' Fund....\\nS.C.Code Ann. \\u00a7 42-l-415(A) (Supp.1998).\\n. Section 42-l~415(D) provides: \\\"However, nothing in this section shall be construed to abrogate the immunity to tort liability of any subcontractor under this title or any higher tier subcontractor, contractor, or project owner who may be considered a statutory employer as provided by sections 42-1-400, 42-1-410, 42-1-420, 42-1-430, and 42-1-450.\\\" S.C.Code Ann. \\u00a7 42-l-415(D) (Supp.1998).\"}"
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+"{\"id\": \"356579\", \"name\": \"Ware vs. Miller\", \"name_abbreviation\": \"Ware v. Miller\", \"decision_date\": \"1877-07-24\", \"docket_number\": \"\", \"first_page\": \"13\", \"last_page\": \"20\", \"citations\": \"9 S.C. 13\", \"volume\": \"9\", \"reporter\": \"South Carolina Reports\", \"court\": \"Supreme Court of South Carolina\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T19:54:05.146899+00:00\", \"provenance\": \"CAP\", \"judges\": \"Willard, C. J., concurred.\", \"parties\": \"Ware vs. Miller.\", \"head_matter\": \"HEARD APRIL TERM, 1877.\\nWare vs. Miller.\\nA motion to dismiss an appeal, on the ground of irregularity in taking the appeal, will not be allowed where it does not appear that the party making the motion has complied with the rules of Court prescribing the practice in such cases.\\nNo action lies upon a bail bond taken by the Sheriff in March, 1867, where the liability of the bail was not fixed, in the manner prescribed by the law then existing, before imprisonment for debt was abolished.\\nA State may constitutionally abolish imprisonment for debt as to existing contracts, for, though by so doing it impairs the remedy of the creditor, it does not \\u201cimpair the obligation of the contract\\u201d in the constitutional sense of the term.\\nBefore NORTHROP, J., at Spartanburg, July Term, 1876.\\nThis was an action by James H. Ware against W. T. Miller. The case is as follows:\\nOn the 11th March, 1867, the plaintiff commenced an action of assumpsit against H. N. Maddox. The writ was endorsed with an order for bail.\\nOn November 12th, 1867, the Sheriff of the County (Spartan-burg) arrested Maddox, who, on the next day, gave a bail bond to the Sheriff, with W. T. Miller, the defendant, as bail. The bond was conditioned in the usual form to appear at the next Court, &c., \\\"to answer to James W. Ware, the plaintiff, of a plea of trespass on the case, and so forth, and, also, for certain promises and assumptions by the said defendant to the said plaintiff made,\\u201d&c.\\nThe plaintiff recovered judgment in his action against Maddox on the 9th May, 1870, and on the same day sued out an execution thereon against him, which, on the 18th June, 1870, was returned nulla bona.\\nOn 7th November, 1871, the bond was assigned by the Sheriff to Ware, the plaintiff, who, on the same day, commenced this action thereon against Maddox and Miller.\\nThe complainant in this action, after stating the facts hereinbefore set forth in reference to the first action, alleged \\u201c that said Maddox failed to appear and abide by said judgment,\\u201d (that is the judgment in the first action,) \\u201c but removed himself and property beyond the limits of the State, and that neither he nor Miller has paid the said judgment, which is still due and unsatisfied.\\u201d\\nThe defendant, Miller, in his answer, submitted to the Court as his defense to the action, that, on account of the military orders of the General commanding in this State at the time, and the provisions of the State Constitution of 1868, prohibiting imprisonment for debt, Maddox could not at any time have been surrendered ; and that at no time after the giving of the bond had any process been issued by the Court for the arrest of Maddox, and the defendant therefore submitted that the plaintiff had no right of action against him.\\nThe defendant, by his attorneys, requested His Honor the presiding Judge to instruct the jury as follows:\\n1. That bail were entitled until return day of ca. sa. against the principal in which to surrender their principal.\\n2. That there must be a ca. sa. issued before the liability of bail can be fixed.\\n3. That in order to fix such liability there must be a return of non est inventus to the ca. sa.\\n4. That bail had the right for one term after such return in which to produce the principal.\\n5. That, imprisonment for debt having been abolished, the defendant was relieved from any liability not already incurred on said bond.\\n6. That, no ca.sa. having been issued, the jury should find for the defendant.\\n7. That the plaintiff had no cause of action.\\nThe request was denied, and the jury were instructed to find for the plaintiff, which they accordingly did, \\u2014 the verdict being for $369.\\nThe defendant appealed on the ground that His Honor the presiding Judge erred in refusing to instruct the jury as requested.\\nEvins & Bomar, for appellant,\\ncited the authorities mentioned in the opinion of the Court, and other authorities, and contended that the Circuit Judge erred in denying the instructions asked for by the defendant; that the liability of the bail had never been fixed, and, therefore, the plaintiff could not maintain his action.\\nJ. G. Winsmith, contra,\\nread a certificate of the Clerk of the Circuit Court, and his own affidavit, which stated that the verdict in the Circuit Court was rendered August 1st, 1876; that judgment was entered on the 9th of August, 1876; execution thereon was lodged with the Sheriff 80th of August, 1876; that the notice of appeal was served 80th of September, 1876, and that the bond for appeal was filed October 11th, 1876; and he thereupon submitted that, under Rule LV of the Circuit Court, and the Revised Statutes, page 675, Section 420, the appeal was irregular and should be dismissed. He cited Hill on New Trials, 702 ; 4 Waite\\u2019s Pr., 220, 221. He contended that by the removal of Maddox from the State, and the failure of Miller to pay the judgment, the bond was forfeited ; and he further contended that the bail bond could not be affected by any regulation made after it was given.\\u2014 Cosgrove vs. Butler, 1 S. C., 241; Crotvoell vs. Boozer, 3 S. C., 600.\\nJuly 24, 1877.\", \"word_count\": \"3118\", \"char_count\": \"17663\", \"text\": \"The opinion of the Court was delivered by\\nMcIver, A. J.\\nBefore proceeding to a consideration of the merits of this ease, it will be necessary to dispose of an objection, made in a very informal and irregular way, to the hearing of this appeal. This objection, based upon purely technical grounds, not having been made in the manner prescribed by the rules of this Court, cannot be considered; for by the amended rules of this Court, in force from and after the 1st day of October, 1873, when a party desires to move this Court that an appeal be dismissed, or the cause stricken from the docket, for any irregularity in taking the appeal, it must be upon eight days' notice, upon affidavits, copies of which should be served on the opposite party. In the papers submitted to us we find no evidence that this requirement has been complied with, and, as we think that parties who assail others upon purely technical grounds should be careful to see that their mode of attack is itself technically accurate, we are not disposed to enter upon a discussion of the merits of the objection.\\nTurning, then, to a consideration of the case, we find that the plaintiff issued a bail writ in assumpsit against the defendant, H. N. Maddox, on the 12th March, 1867, who, having been arrested, on the next day executed a bail bond, in the usual form, with the defendant, W. T. Miller, as his bail, to the Sheriff of Spartanburg. On the 9th May, 1870, the plaintiff recovered judgment in his original action, and issued his execution to enforce the same, which, on the 18th June, 1870, was returned nulla bona. On the 7th November, 1871, the plaintiff having on that day procured an assignment of the bail bond from the successor in office of the Sheriff who had taken the bond, commenced this action, alleging the foregoing facts and the further facts \\\" that said Maddox failed to appear and abide by said judgment, but removed himself and property beyond the limits of the State, and that neither he nor Miller had paid the judgment, which was still due and unsatisfied.\\\"\\nThe defense set up by Miller, no answer having been put in by Maddox, was \\\" that on account of the military orders of the General commanding in this State, and the provisions of the State Constitution prohibiting imprisonment for debt, the body of said Maddox could not at any time have been surrendered, and, further, that at no time after the giving of said bond had any process been issued by the Court for the arrest of said Maddox, and said defendant, therefore, claimed that the plaintiff had no right of action.\\\" ' The plaintiff offered in evidence the bail bond and the Sheriff's return of nulla bona on his execution against Maddox, while the defendant put in evidence the military orders prohibiting imprisonment for debt. The defendant submitted sundry requests to charge, which it is not necessary to particularize, as they all amounted to a request to charge that, under the case as made, the defendant, Miller, could not be held liable. These requests the Circuit Judge refused, and, on the contrary, instructed the jury to find for the plaintiff, which they accordingly did.\\nThe defendant having excepted to the refusal of his requests, we are now to consider whether such exceptions were well taken. The plaintiff certainly cannot maintain this action unless he has shown a breach of the condition of the bond, which is the foundation of it. What, then, is really the condition of this bond ? It is not merely, as its terms imply, that \\\" the above bound H. N. Maddox, defendant, do appear at the next Court, &e., to answer to James H. Ware, the plaintiff, of a plea of trespass on the case, &c.,\\\" for, as the law then stood, he might have so appeared and answered, and yet might have afterwards committed a breach of the bond. Nor does the condition require that he should answer to the demand of the plaintiff, in the sense of satisfying any judgment that might be obtained against him, for this would be converting the bail into a surety for the debt. The condition of this bond amounted simply to this: that he would have his body within reach of any process which the Court might lawfully issue against it for the enforcement of such judgment as might be rendered against him. It would, therefore, seem to follow, necessarily, that, if from any cause, whether from want of power in the Court or from want of will in the plaintiff or in the Court, such process has never been issued, there could be no breach of the condition of the bond, and, therefore, no cause of action. Because for anything that the Court can possibly know, it may be that if such process had been issued the party bound would either have voluntarilysurrendered himself, in exoneration of his bail, or the bail might, by exercising theright formerly secured to him, have brought his principal within reach of such process.\\nAn examination of the authorities will show that they fully sustain the foregoing views. In Ancrum vs. Sloan (1 Rich., 421,) the question was whether the liability of the bail had been fixed; in other words, whether there had been such a breach of the condition, of the bond as would enable the plaintiff to maintain the action against the bail. A ea. sa. was issued against the principal on the 21st June, and on the 8th July the Sheriff made an entry on it of non est inventus, and on the 4th of October, the day before the regular return day of the ca. sa., the plaintiff commenced his action on the bail bond against the bail. A motion was then made to confirm the surrender of his principal by the bail, which had been made some time before, \\u2014 exactly when is not stated, but certainly after the commencement of the action against the bail, \\u2014 and the motion was granted.\\nButler, J.,\\nin delivering the opinion of the Court, after deciding that a return of non est inventus-cannot be made on a ca. sa. so as to fix the liability of the bail before the regular return day of such ca. sa., (the return of non est inventus in this case having been made prior to such return day,) uses this language: \\\"No action can be commenced against the bail until they are fixed by a ca. sa. and non est returned upon it against the principal.\\\" And, again, he says: \\\"For the purpose of fixing the bail, it is indispensable that a ca. sa. should be sued out.\\\"\\nIn Stevens vs. Meeds (1 McC., 318,) there had been a return of nulla bona, but no ca. sa., against the principal, and it was held that the bail was not fixed by the return of nulla bona. In Arthur vs. Antonio (1 McC., 251,) the action was against the Sheriff for refusing to assign a bail bond, and the Court held that the action could not be maintained, because, the principal having died before the issuing of a ca. sa. against him, the bail could not be made liable, and, therefore, the plaintiff sustained no damage from the refusal of the Sheriff to assign the bail bond. In Saunders vs. Hughes, (2 Bail., 513,) O'Neill, J., in considering the meaning and effect of the words \\\"to abide the event of the Court and jury,\\\" which had been improperly incorporated into the condition of the bail bond, which was the subject matter of the action in that case, says: \\\"If they have any meaning, they cannot mean anything more than that the defendant (Colonel Hughes) will legally abide the judgment of the Court \\u2014 that is, that he shall remain within the reach of its process of satisfaction. This is exactly the obligation which the bail incurred by undertaking for his appearance.\\\"\\nIn Saunders vs. Bobo, (2 Bail, 492,) the question was what effect the discharge of the principal under the Insolvent Debtors Act, at the suit of another plaintiff, before the bail had been fixed by the return of non est inventus on a ca. sa. against the principal, would have upon the liability of the bail, and the Court, through Johnson, J., uses this language: \\\"Unless the bail has become fixed, it must, for very obvious reasons, operate to discharge them. Until then they owed no debt, for the judgment is exclusively the debt of the principal. After they are fixed it becomes their own proper debt and the discharge of their principal cannot discharge them. It follows, therefore, that bail are fixed by the return of non est inventus to a ca. sa. against their principal and not before.\\\" Apply this doctrine to the case now in hand. The principal having been discharged from liability to arrest under a ca. sa. by the provisions of the Constitution of the State, and the obligation of the bail being, .as we have seen, merely that his principal shall hold himself answerable to such process, would not the discharge of the principal from his liability to arrest operate as a discharge of the bail from his obligation, when such discharge of the principal has taken place, as in this case, before the liability of the bail became fixed?\\nIn Watson vs. Bancroft, (4 Strob., 218,) Evans, J., says: \\\"The bail stipulated for nothing else but that the principal shall be put back in the possession of the Sheriff, 'out of whose custody he has been taken.' At the time this bail bond was executed such a stipulation was lawful. The bail had a right to capture his principal wherever he could find him and deliver him into the custody of the Sheriff, who was bound to receive and safely keep him until discharged by due course of law. But before any liability was or could have been fixed upon the bail, by the issue of a ca. sa., this right was not only taken away from him, but it became absolutely unlawful for him to perform his stipulation, and hence he is relieved of his obligation. For if one agrees to do a thing which, at the time of such agreement, is lawful, and it afterwards is made unlawful'.by an Act of the Legislature, passed before the time arrives at which'such thing is to be done, the Act avoids the promise and the party is relieved from his obligation.\\\" \\u2014 2 Pars, on Con., 674; see also 1 Sel. Pr\\\" 173-4.\\nThe views hereinbefore presented are not in any respect weakened by the cases of Longstreet vs. Lafitte, 2 Sp., 667; Jarvis vs. Gibberson, Dud., 223; following Despany vs. Davis, 3 McC., 16, and Jarvis vs. Alexander, Chev., 143; for, in fact, the case of Longstreet vs. Lafitte rather recognizes the correctness of our position than otherwise, while the other eases are confined to the consideration of the effect of the Act of 1824, exempting females from arrest under a ca. sa., upon the right to hold a female to bail, and the obligations which such bail would assume. And it.is quite manifest that the respondent's citations from the General Statutes do not support his position; for Section 10, at page 751, relates exclusively to fines and forfeitures, and whether a fine or a forfeiture is to be regarded as a debt, within the meaning of that term as used in the clause of the Constitution which abolishes imprisonment for debt, Ave deem it unnecessary now to consider; for, if so regarded, then that Section is in conflict with the Constitution, and, therefore, invalid. If not so regarded, then that Section has no application to the question under consideration.\\nThe other reference to page 716, Section 4, which must be a misprint, possibly intended for some one or more of the Sections in Title YI, Chapter CXXIII, of the General Statutes, is equally inapplicable, as the provisions of that Chapter must be regarded as confined to those eases in which imprisonment for debt is not abolished by the Constitution, to wit, \\\"in cases of fraud,\\\" or to cases arising under Section 10, page 751, above referred to. If it was the intention of the respondent, when he used the language \\\"this bail bond could not be affected by any regulation made after it was given,\\\" to contend that, imprisonment for debt having been abolished after the execution of this bond, such legislation was retroactive and impaired the obligation of the contract, the language of Cooley, in his work on Constitutional Limitations, at page 287, furnishes a complete and conclusive answer. He says: \\\"Without impairing the obligation of the contract, the remedy may certainly be modified as the wisdom of the nation shall direct. To take a strong instance: Although the law at the time the contract is made permits the creditor to take the body of his debtor in execution, there can be no doubt of the right to abolish all laws for this purpose, leaving the creditor to his remedy against property alone.\\\" This proposition finds support in numerous cases cited.\\nWe think, therefore, that the exceptions were well taken, and the motion is granted.\\nWillard, C. J., concurred.\"}"
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+"{\"id\": \"359562\", \"name\": \"THE STATE v. ROBERT SMALLS\", \"name_abbreviation\": \"State v. Smalls\", \"decision_date\": \"1878-04\", \"docket_number\": \"CASE No. 661\", \"first_page\": \"262\", \"last_page\": \"288\", \"citations\": \"11 S.C. 262\", \"volume\": \"11\", \"reporter\": \"South Carolina Reports\", \"court\": \"Supreme Court of South Carolina\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-11T00:03:59.735312+00:00\", \"provenance\": \"CAP\", \"judges\": \"McIyer, and Hasjkell, A. J7s, concurred.\", \"parties\": \"THE STATE v. ROBERT SMALLS.\", \"head_matter\": \"Heard Aerie Term, 1878.\\nCASE No. 661.\\nTHE STATE v. ROBERT SMALLS.\\n1. Numbers 2, 3 and 11 of the syllabus in State v. Cardoza, re-affirmed.\\n2. A defendant under prosecution in a state courtis not entitled to have the cause removed to the Circuit Court of the United States, under Section 641 of the Revised Statutes of the United States, (p. 114,) under a petition for that purpose alleging the existence of prejudice against him on account of his race and color and other causes, and alleging further, without any more specific statement of facts, that he is denied, and cannot enforce in the judicial tribunals of the state where he is being tried, the rights secured to him by the laws of the United States.\\n3. An indictment for bribery against a member of congress is not arrested by the privileges secured to representatives by Article I, Section 5, of the Constitution of the United States.\\n4. The corrupt acceptance of a gift and gratuity and of the promise to make a gift, are not inconsistent, and there is no duplicity in so charging in a count of an indictment for bribery.\\n5. An indictment is not defective for repugnancy, because it charges the corrupt acceptance of a bribe to vote for \\u201c a question which was and might be, by law, brought before \\u201d the defendant as state senator.\\n6. In an indictment charging the acceptance of a bribe by a state senator to vote for a certain joint resolution, it is sufficient to designate the joint resolution by its title only.\\n7. Journals of the state senate, published under the requirement of Article II., Section 26, of the Constitution, are the highest legal proof of the pend-ency of a matter before that body at any particular time.\\n8. Where an accomplice testified that he had paid a bribe to defendant by giving to him a check on a certain bank, payable to cash or bearer, which had afterwards been returned by such bank to witness, it was competent for the state, in corroboration, to show by the books and business memoranda of this same bank, a credit to defendant for a like amount deposited by check two days after the alleged bribery.\\nBefore TowNSEND, J., at Richland, October Term, 1877.\\nThis was an indictment for bribery, committed by defendant, as a state senator, in December, 1872. True bill was found by the grand jury at October Term, 1877, of the Court of General Sessions for Richland county. The indictment contained five counts. The first count charged that the defendant did, on December 18th, 1872, \\u201c corruptly accept from Josephus'Wood-ruff a gift and gratuity and a promise to make a gift and do an act beneficial to him,\\u201d a state senator, under an agreement and with an understanding that the vote, opinion and judgment\\u201d of defendant should be given in favor of a joint resolution appropriating money for public printing \\u2014 \\u201c a question which was and might be by law brought before\\u201d said defendant, as a st\\u00e1te senator. The second count varied from the first in the charge that the defendant did \\u201ccorruptly accept from J. W. a promise to make a gift and to. do an act beneficial to him, the said Robert Smalls, to wit, a promise to give him, the said R. S., a large sum of money, to wit, the sum of five thousand dollars, under an agreement,\\u201d &c. The third count varied from the second only in the use of the words \\u201cwith an understanding,\\u201d instead of \\u201c under an agreement.\\u201d The fourth count changed the phraseology to \\u201c corruptly did accept a promise from J. W., to make a gift of five thousand dollars to him, the said Robert Smalls, with an understanding,\\u201d &c.; and the joint resolution was charged to have been \\u201cthen introduced and pending in the general assembly of the said state, and was to be brought before him, the said R. S., in his official capacity,\\u201d &c. The fifth count was for corruptly accepting a gratuity in payment for a vote already given, and is laid at common law. The first four counts are brought under act of 1869, Section 2. 14 Stcd. 308 ; Gen. Stat. 725, \\u00a7 10. In the first four counts the joint resolution is set out only by its title, to wit: \\u201c Joint resolution to make appropriation for expenses of printing ordered by the general assembly during the regular sessions of 1870-1, and 1871-2.\\u201d In December, 1872, Robert Smalls was senator from Beaufort county, and chairman of committee on printing. Josephus Woodruff was clerk of the senate, and a member of the Republican printing company, by whom the public printing was done.\\nThe case being called for trial on November 7th, 1877, defendant submitted the following petition:\\nTo the Honorable the Court of General Sessions for the County of Richland, in the said State:\\nThe defendant in this cause, Robert Smalls, humbly petitioning, shows unto your honorable court that he has been indicted by the grand jury of this county, and is now held under bail to answer in this court to indictment for the alleged crime of receiving a bribe in his official capacity, to influence his acts in the office of state senator of South Carolina, on or about the eighteenth day of Decembei\\u2019, in the year of our Lord eighteen hundred and seventy-two, as is more fully set forth in the said indictment; that of all and each of said crimes and offences set forth in said indictment, this defendant, upon his oath, solemnly declares he is not guilty, and is only desirous to have the trial thereof before an unprejudiced, fair and impartial court and jury that this defendant is a person of color, and was formerly a slave? and was afterwards a captain and pilot in the service of the United States; that the offence charged in the said indictment, relating to his action as such state senator, has been the subject of much comment, both in private conversation among the citizens of the county and in several of the public newspapers published and largely circulated in the said county, from the residents of which the jury have been summoned for this trial; that by the laws of the United States of America, as well as the constitution and laws of the State of South Carolina, he is entitled by right to trial by a fair and impartial jury, who shall pass upon the offence charged between him and the state without bias or prejudice; that he is informed,and believes that great prejudice exists against him on account of his race, color and previous condition of servitude, so that he cannot have a fair and impartial trial in this honorable court, by reason of political excitement, and by reason of the prejudice excited against him by articles published in the newspapers; that at the general election held in this state, on the seventh day of November, eighteen hundred and seventy-six, this defendant ,waS elected a representative of the fifth district of the State of South Carolina in the house of representatives of the United States, to hold his seat as such in the forty-fifth congress of the United States, and that he has been admitted to said seat by the said house of representatives of the said congress, but a contest for his said seat is being prosecuted, and now exists, by one George D. Tillman, who claims to have been elected representative of the United States from said district to said congress. And your petitioner verily believes that the said prosecution on the indictment above set forth is incited against him by a conspiracy to prevent him, by intimidation, from holding an office under the United States, and from discharging the duties thereof; and, by the same, to injure him in his property, and to molest, interrupt, hinder and impede him in the discharge of his official duties; and that said indictment .is prosecuted with intention to deprive him of his rights, privileges and immunities secured by the constitution and laws of the United States, to which, as a citizen of the United States, he is entitled. And, further, your petitioner verily believes that by reason of the said contest for his said seat as a representative as aforesaid, there is an intense prejudice against this defendant in the minds of a large number of the residents of the said county, who differ in political associations with this defendant.\\nAnd your petitioner further shows that he verily believes that he cannot have a fair and impartial trial of the said cause before the Honorable C. P. Townsend, Circuit judge, now presiding iip the said court; that he believes that the mind of the said judge is prejudiced against him by reason of his race, color and previous condition of servitude; that his belief is founded in the rulings and charge of the said judge, in a certain cause wherein P. L. Cardoza, a person of the same race and color of this de fendant, was tried on indictment for a conspiracy to cheat the State of South Carolina, at this term of the said court.\\nAnd your petitioner further shows that for the reasons above stated, and for other reasons more at large, to be shown in the proper court, he is denied and cannot enforce in the judicial tribunals of the part of the state where the said prosecution is pending, the rights secured to him by the laws providing for the equal civil rights, as citizens of the United States, of all persons within the jurisdiction of the United States; that the said cause on indictment aforesaid against this defendant has not been tried or finally heard by this court.\\nWherefore, the said defendant, Robert Smalls, files this qjetition in this honorable, court, before the trial or final hearing of the cause, verified by his oath, and prays that the cause here pending be removed to the Circuit Court of the United States for the District of South Carolina for trial, and that all proceedings in this honorable court shall cease, and shall not be resumed unless he, the said Robert Smalls, shall be denied copies of said process against him, and all depositions, indictment, pleadings and other testimomy in the case, so that he cannot file them in said court on the first day of the session of the said Circuit Court of the United States, or shall fail to prove the refusal or neglect of said clerk of this court so to furnish said copies, and a certificate of such refusal 'or neglect, under the seal of said court, shall be given and produced in this honorable court.\\nAnd your petitioner, Robert Smalls, doth verify the facts by him stated, by his solemn oath appended hereto, administered by a proper officer for administering oaths for said State of South Carolina. And as in duty bound, your petitioner will ever pray, and so forth.\\nRobert Smalls.\\n[Signed and verified.]\\nThe motion was refused, and defendant excepted.\\nOn November 9th the case was again called for trial, when defendant submitted the following affidavit and prayer for discharge :\\nRobert Smalls, the defendant above named, being duly sworn, says \\u2014 That on the seventh day of November, eighteen hundred and seventy-six, at a general election held in the State of South Carolina, he was elected a representative to hold a seat in the house of representatives of the United States in the forty-ffifth congress, from the fifth congressional district of South Carolina; that on the fifteenth day of October, eighteen hundred and seventy-seven, he was admitted to a seat in the said congress and was sworn in as such officer; and but for the proceedings and prosecution in the above-entitled case, would now be in Washington attending to his duties as suclxofficer; and he is of right entitled to all the privileges and immunities given to him by the constitution^ and laws of the United States as such officer; that shortly before the session of the forty-fifth congress of the United States, which assembled in the city of Washington, D. C., on the fifteenth day of October, eighteen hundred and seventy-seven, he was arrested on the charge of accepting a bribe, which, under the laws of the State of South Carolina, is a misdemeanor other than a breach of the peace; and on the eighth day of October, eighteen hundred and seventy-seven, was required to enter into a recognizance to appear at the present session of this honorable court; that at the present term of this court an indictment has been preferred against this defendant upon the said charge, and he has been compelled, from day to day, to appear before this court, and now is before this court, under its process, in violation of the constitution and laws of the United States, to answer the charge of the said misdemeanor; and by reason of the said proceedings and prosecution, he is compelled to be absent from his seat in the said house of representatives of the United States.\\nWherefore he prays that he be hence discharged.\\n(Signed) . Robert Smalls.\\nSworn to 8th day of November, 1877.\\nThe court refused to discharge the defendant and he excepted.\\nThe juries were organized for the term, as stated in State v. Cardoza, next preceding case. Jury No. 2 was called to try the case. The state challenged one juror for cause and two per emptorily. Martin and two others were then drawn from the supernumerary list. The defendant challenged Martin peremptorily. The court ruled that defendant did not have the right to challenge jurors drawn to fill vacancies on the panel; to which ruling defendant excepted. Defendaut then challenged a juror of the original panel, and one from the supernumerary list was drawn in his stead.\\nAttorney-General Conner offered in evidence Journal of the Senate, 1872-3. Mr. Melton, counsel for defendant, objected, and, his objection being overruled, excepted.\\nJosephus Woodruff, witness for state, testified that in consideration of the vote and influence in the senate of the defendant,, in favor of a joint resolution appropriating money to pay for public printing, witness agreed to pay defendant $5000. That in pursuance of such agreement, witness gave to defendant, on January 16th, 1873, a check worded thus:\\n584, No. 17. Columbia, S. C., Jan\\u2019y 19, 1873.\\nSouth Carolina Bank and Trust Company, of Columbia, pay to cash or bearer, five thousand dollars.\\n$5000. \\u2018 J. Woouruff.\\nThat check was dated a few days ahead, and its written date fell on Sunday. \\u2022 It was paid by the bank and returned to witness at the end of the month with his other checks drawn during the month. Witness was allowed to refresh his memory by referring to a memorandum-book, written in phonographic characters; defendant objected, because the book was intelligible only to witness, and excepted. Witness said the senate kept no permanent journal; only the printed journal.\\nL. M. Zealy, assistant bookkeeper of the South Carolina Bank and Trust Company, was offered as a witness to trace the above check through the bank. Defendant objected to the books of the bank being used against defendant, and his objection being overruled, excepted. Witness said this check was charged to Woodruff January 18th, 1873. Same day $5000 is put to credit of defendant, and was checked out on 8th of February. No other check that day charged to Woodruff or credited to Smalls. Figures 584 on check were put there by witness, and refer to page of ledger. On page 584 of ledger is the entry of this cheek paid on W.\\u2019s account. When deposits were made it was the custom of the bank to require deposit slips. Witness produced the following, found among the papers of the bank:\\nS. C. Bank & Trust Company,\\nDeposited by Columbia, S. C., Jan. 18, 1873.\\nHon. Robert Smalls.\\nGold Currency Check, W. Total $ $ 5000\\nThe deposit-slip is in handwriting of F. S. Jacobs, then cashier of the bank, who has been absent from the state since 1873. The letter W is in pencil, also his handwriting, and indicates the. person who drew the check. Defendant objected to all the testimony relating to this deposit-slip.\\nThe defendant was found guilty.\\nA motion for a new trial and in arrest of judgment was made in the Circuit Court, and severally refused. Defendant was then \\u2022sentenced to be confined in the state penitentiary, at hard labor, for the period of three years.\\n- Defendant appealed upon the following grounds:\\nThe defendant having appealed from the judgment of the court herein, will move before the honorable the Supreme Court of the said state, for an order reversing the decision of his Honor \\u25a0Judge Townsend refusing the motion in arrest of judgment herein; and for an order in arrest of judgment upon the grounds in the said motion specifically stated and set forth \\u2014 that is to say:\\n1. That prior to the trial herein, a petition was filed in this court praying that this cause be removed from this court to the next Circuit Court of the United States, to be held in the district where this cause is pending, upon grounds and because of facts therein stated, and that, thereupon, by virtue of the statute of the congress of the United States in such case made and pro vided, all further proceedings in this court should have ceased, and the jurisdiction and authority of this court to try this cause, ceased and determined. \\u2022\\n2. That prior to the trial herein, on the ground set forth by affidavit filed in this case, that the defendant is a member of the house of representatives of the congress of the United States, then and now in session, and that therefore the trial herein is in breach of the privileges of the defendant as such member, this court is without jurisdiction and authority to pronounce judgment herein.\\n3. That the jury rendering the verdict herein was not a legal and competent jury, and was not drawn, summoned, and impaneled according to law; in this, that to fill the deficiency in the number of jurors required by law, the names of five persons were drawn from an apartment of the jury box separate from the apartment containing the legal and proper lists of jurors prepared at the time and in the manner prescribed by statute. That the jury commissioners of the said county were not authorized by law to place the names of jurors in such separate apartment and to draw therefrom \\u201cthe jurors to supply the deficiencies\\u201d in the regular panel, and, therefore, the jurors so drawn from such separate apartment were not in law competent to act as jurors; and that the defendant was denied his right to peremptorily challenge jurors who had been called to take the place of other jurors removed from the panel by challenge, although the challenges provided for by law in his behalf had not been and were not exhausted.\\n4. That the first count of the indictment herein is fatally defective for duplicity; in this, that in the statement of the crime therein charged against this defendant, is included several offences separate, distinct, and different each from the other; and for repugnancy, in this, that the \\u201c question \\u201d is therein set forth in inconsistent terms as \\u201ca question which was and might be'by law brought before the said defendant,\\u201d and so forth.\\n5. That the second count of the indictment is fatally defective for repugnancy; in this, that the \\u201c question \\u201d is therein set forth in inconsistent terms as a \\u201cjoint resolution which was and might be by law brought before him,*the said defendant,\\u201d and so forth.\\n6. That .the third count of the indictment herein is fatally defective for repugnancy; in this, that the joint resolution 'is therein set forth as a \\u201cjoint resolution which was and might be by law brought before him, the said defendant,\\u201d and so forth.\\n7. That the fourth count of the indictment is fatally defective; in this, that the description of the joint resolution and the time when introduced and pending, and to be brought before him, the said defendant, and so forth, are not stated with sufficient precision, clearness, and certainty \\u2014 being without averment of era or year, or of numbers in words as required by law.\\n8. That the fifth count of the indictment herein is fatally defective; in this, that it does not set forth and charge a crime under the laws of this state.\\nAnd failing herein, the defendant will move before the honorable the Supreme Court of this state, upon the grounds stated and specifically set forth in the motion for new trial made before his Honor Judge Townsend for an order reversing the decision of his Honor Judge Townsend refusing the said motion, and for an order setting aside the verdict of the jury, and reversing the judgment of the Circuit Court herein, and granting a new trial, upon the grounds set forth in the motion in arrest of judgment aforesaid, and upon other and further grounds \\u2014 that is to say :\\n1. Because the court erred in denying to the defendant the right of peremptory challenge, as to a juror; William T. Martin, who had been drawn and placed upon the panel in the place of a juror removed by peremptory challenge on the part of the state, although the defendant\\u2019s right of peremptory challenge had not been exhausted.\\n2. Because the court erred in permitting a witness, Josephus Woodruff, to refresh his memory by reference to a book purporting to be a diary written in phonographic characters, peculiar to the witness and of his own invention; and because the court erred in admitting in evidence the entries said to be contained in the said diary, and allowing them to be translated by the said witness and read to the jury.\\n3. Because the court erred in admitting in evidence the contents of a printed book, purporting to be a copy of the journal of the senate for the session of the general assembly of this state for 1873-74, and allowing extracts therefrom to be read to the jury as evidence competent to show the proceedings of the senate upon the question in reference to the passage of the joint resolution referred to in the indictment, and competent to prove the averment that the defendant had voted in fqvor of the passage of the said resolution' and had otherwise used his office and influence in that behalf.\\n4. Because the court erred in admitting in evidence a printed book, purporting to contain copies of the acts and joint resolutions of the general assembly of this state for the session of 1873-74, as competent to prove the fact and date of the passage of the joint resolution as averred in the indictment.\\n5. Because the court erred in admitting in evidence the books of a private corporation, known as \\u201c The South Carolina Bank and Trust Company,\\u201d and permitting entries therein in the handwriting of the assistant bookkeeper, to be read and shown to the jury as evidence competent to prove, as against this defendant, that payments were made by the said bank on account of the said Woodruff, and a deposit made to the credit of the defendant of like amount, and the precise dates of such transactions; although it was in evidence that such transactions were not had with the assistant bookkeeper or within his personal knowledge; and although nothing appeared to connect the transaction had with the said bank by Woodruff with the transaction had with the said bank by this defendant; although the person with whom the transactions are alleged to have occurred is alive, and the person who made the entries is alive, examined as a witness at the trial.\\n6. Because the court erred in admitting in evidence a slip of paper, said to be in the handwriting of one F. S, Jacobs, an officer of the said bank, containing a date, the name of the defendant, and the figures \\u201c 5000,\\u201d written in pencil, as evidence competent to prove that, at such date, this defendant did deposit the sum of $5000 in the said bank by way of check; although it was proved that the said F. S. Jacobs is alive, and nothing was proved to connect this defendant with the said paper, or to refer the said* paper to any transaction between this defendant and the said Woodruff.\\nSeveral of the points involved in this appeal are identical with questions involved in Cardoza\\u2019s case, and the argument is the same. Upon other points the two cases differ.\\nMr. S. W. Melton, for appellant.\\nThe accused having filed his petition for removal of the cause, the jurisdiction to try the case thereby ceased and determined. Rev. 8tat. of U. 8., \\u00a7 641. The rights of the accused are secured by the constitution of the United States, and by Sections 1980, 5510, 5518 of Revised Statutes. The state court could not construe the statute; that belongs to the United States courts. 1 Wheat. 304; 6 Wheat. 264; 6 Wall. 247.\\nThis first count is double. 1 Bish. on Orim. Proe., \\u00a7\\u00a7 432, 441; State v. Howe, 1 Rich. 260.\\nThe second and third counts are bad for repugnancy. 1 Bish. on Orim. Proe., \\u00a7 572.\\nThe joint resolution is not set forth with sufficient precision and certainty. 1 Bish. on Orim. Proe., \\u00a7\\u00a7 344, 346.\\nThe printed senate journal was improperly received in evidence. 2 Whart. on Pm., \\u00a7\\u00a7 290, 295.\\nMr. O. R. Miles, contra.\\nThe defendant does not state, but it is manifest that a removal of the cause is claimed under Section 641 of the Revised Statutes of the United States. This was a part of the legislation intended to apply only to states which failed to guarantee, by legislation, the civil rights conferred by the constitutional amendments and acts of congress. It cannot apply to South Carolina. 16 Wall. 36; 2 Otto 542; 13 Wall. 581. Moreover, he does not state facts which show that he is denied any rights in the state tribunal. Nor could the United States courts try him under this charge if the case was removed.\\nHe claims a privilege as a member of congress. Const. U. 8., Art. I., \\u00a7 6. When arrested he was not in attendance on con gress, going to it or returning from it. Bright Big. 3, note (c). His presence is not required, for the charge is 'a misdemeanor, and lie is under bond. The privilege of members of congress is the same as members of parliament. See 1 Bla. Com. 166; Story on Const, \\u00a7 865; Cush. L. & P. Leg. As., \\u00a7\\u00a7 559-563.\\nThe indictment is framed under Section 2 of act of 1869, {Gen. Stat 725) and follows its words. 2 Strob. 474; 1 MoM. 472; 3 Strob. 269; 1 Bish. on Orim. Law, \\u00a7 785; 1 Whart. on Am. Orim. Law, \\u00a7 295; 1 Bail. 144; 1 MoM. 236.\\nThe joint resolution being only a question brought before defendant in his official capacity, it is sufficiently described by its title, certainty to a common intent only being necessary. .2 Bail. 70; 3 Bioh. 68 ; Ld. 174.\\nThe printed journals were admissible to prove the vote of the senator and the date and passage of the joint resolution. 1 Greenl. on Pm., \\u00a7 482; 1 Arohb. Orim. Prao. & PI. [145], note 1; Const, of 1868, Art. XL., \\u00a7 26 ; Cooley on Const. Bim. 135; Cush. L. & P. Leg. Ha., \\u00a7 428; 4 8. C. 430; 2 8. C. 150.\\nActs and joint resolutions require no proof. 1 Arohb. Crim. Prae. & PI. [141]; 1 Greenl. on Pm., \\u00a7 479.\\nThe evidence objected to was properly admitted in corroboration of Woodruff. 1 Greenl. on Pm., \\u00a7\\u00a7 120, 379, et seq.; 3 Strob. 517; 32 P. C. L. B. 507.\\nMr. J. B. Pope, in reply.\\nThe defendant has been convicted and sentenced \\u2014 (1) before a jury without title to his office; (2) by a jury illegally impaneled ; (3) upon evidence that should have been excluded; (4) under an indictment defective in form and substance; and (5) by the uncorroborated testimony of an accomplice, who has confessed his own guilt and proved himself to be steeped in vice and crime.\\nCould the defendant be convicted upon the uncorroborated testimony of the accomplice, Woodruff? It was so, once. Then, some corroboration was required of the circumstances of the case. Next, it was considered that there should be at least corroboration of the identification of some of the accused to convict others not identified; but the injustice of this was soon recognized by the rulings of the courts. Finally, it was agreed that a judge should charge the jury that the accomplice should be corroborated, as to the material circumstances of the case, as to the personal identity of the accused, and, if more than one, of all \\u2014 and as to the corpus delicti, the essence of the crime charged. Roscoe\\u2019s Q-im. Eo. 121, 122; Archb. Orim. Rrac. 154; Phil, on Eh. (part 2 of notes) 1504-1510.\\nJuries are not judges of the sufficiency of evidence; whether evidence is corroborative at all is a question of law for the court. Can a judge say to a jury, \\u201cIf the jury believe the evidence of the accomplice, that alone is sufficient to authorize a verdict of\\nSTATE v. WINGO.\\nIn 1867, Abel Wingo was convicted of hog-stealing in the Court'of General Sessions, Spartanburg county, before Hon. Thomas W. Glover, presiding judge. An appeal was taken upon the grpund that the conviction rested upon the uncorroborated evidence of an accomplice.\\nSee ante page 195.\\nAnte p. 195.\\nMay Term, 1867.\", \"word_count\": \"10283\", \"char_count\": \"59240\", \"text\": \"The opinion of the Court of Appeals was delivered by\\nDunkin, C. J.\\nIn Mr. Philips' Treatise on Evidence, pp. 110-112, the rule is thus stated: after premising that the testimony of an accomplice should be received with great jealousy and caution, because, among other things, they stand contaminated with guilt by their own confession, and are sometimes entitled to a reward upon obtaining a conviction, Mr. Phillips says: \\\"The doctrine of a conviction being legal upon the unsupported evidence of an accomplice has been greatly modified in practice, and it has long been considered as a general rule that the testimony of an accomplice ought to receive confirmation, and that, 'unless it be corroborated in some material part by unimpeachable evidence, the presiding judge ought to advise the jury to acquit the prisoner.\\\"\\nThe report of the presiding judge does not state his instructions to the jury, nor was it necessary under the specific grounds of appeal. Tt cannot, therefore, be affirmed that the verdict was illegal, although unsustained by any evidence except that of an accomplice in the crime, and whose general character would seem to impair his credibility. On the other hand, the character of the defendant, both as an honest man and good neighbor, was sustained by the witnesses. Tt is true that to judge of all this was the proper province of the jury, upon which this court has neither the right nor the disposition to encroach. But in the absence of distinct information as to the charge of the judge, the infirmity of the testimony adduced, and the grave consequences to the defendant of conviction of an infamous offence, the court have determined that neither the rules of law nor the purposes of justice would be impaired by submitting the case to another jury.\\nThe motion for a new trial is granted. Reporter. guilty?\\\" See 3 Sbrob. 508; Shars. Starh. Ev. 727; Phil, on Ev.,, part 2, notes, 1510, and part 1, notes, 16-22; 2 Russ, on Or. 960-962. Test this instruction by following authorities. 1 Greenl. on Ev. 426; 2 Russ, on Or. 961, 962; 8 C. & P. 157 ; 6 C.& P. 595; 6 C. & P. 388; 8 C. & P. 106; 7 C.& P. 272; 8 C.& P. 732.\\nThere was no corroboration of Woodruff. What is corroboration? See 1 Greenl. on Ev. 533, \\u00a7 381, note; 2 Rich. Eq. 6. The senate journal corroborates only to the extent of identifying defendant with the legislative action, but that is immaterial. Greenl. on Ev, supra. The cabalistic book was not corroboration of its own author, can add nothing to the testimony of the corrupt creature, who thus corruptly refreshed his corrupt mind by corrupt evidence, and did not corroborate the identity of the defendant as connected with the issue. It was not evidence, because a witness may refresh his mind from a written paper only when such paper is intelligible to some other person, and is open to be tested by a cross-examination upon the paper itself. 1 Greenl. on Ev., \\u00a7 437, note.\\nIn the check to \\\" cash or bearer,\\\" there is no corroboration; it might have been handed to any one else just as well. Alderson, B., in 7 C. & P. 272, supra. Nor does the check presented corroborate the accomplice \\u2014 it was paid on January 18th, a day before the check proved was in existence. But then the accomplice corroborates the check, and the mysterious book corroborates the corroborator.\\nThere is no corroboration in the deposit-slip, for the defendant is not brought into connection with it. It is not signed by defendant or by Jacobs, and should not have been received in evidence. Jacobs living, no other person could testify to the paper. Shars. Stark. Ev. 418, 64, 65; 1 Sm. Lead. Cas. 503 ; 2 N. & McC. 331; 4 Rich. 52 ; 7 Rich. 66; Bail. Eq. 482 ; 2 Hill (N. Y.) 557; Salk. 285, et cet. This is different from entries in shop-books. 2 McC. 157.\\nThe entries in bank-book, are no corroboration. The witness who made them says he knew nothing personally. Of themselves they prove nothing. 4 Seld. 170; 4 Denio 354.\\nBut every fact proven may be admitted \\u2014 that Woodruff was \\u2022clerk of the senate, and one of the Republican printing company; that defendant was a senator; mover of the joint resolution mentioned; that he voted for it; that Woodruff did give defendant a cheek for $5000, which was paid to defendant at the bank \\u2014and still there is no proof of bribery. That charge, the very essence of the offence, is proven by Woodruff alone, uncorroborated by a single person or a single fact.\\nNovember 29th, 1879. The opinion of the court was delivered by *\\nWillard, C. J.'\\nIn the case of State v. Cardoza, just de-cided, we have considered and disposed of all the propositions presented by the third ground of appeal from the decision refusing the motion in arrest, and in the first and second grounds for granting a new trial, and they need not be again considered. The remaining questions will be considered in the order in which they stand in the grounds of appeal.\\nThe defendant was indicted for bribery as a member of the senate of this state. Before the commencement of the trial he presented to the Court of Common Pleas a petition for the removal of the cause to the Circuit Court of the United States. He alleges that he is a person of color, was formerly a slave, and was afterwards a captain and pilot in the service of the United States, and that for that reason great prejudice exists against him in the county of Richland, where the indictment was found. He alleges that prejudice exists against him on account of his race, color and previous condition of servitude, \\\"so that he cannot have a fair, impartial trial in this honorable court, by reason of political excitement, and by reason of the prejudices excited against him by articles published in the newspapers. He further alleges that he had been elected a representative to the United \\u2022States congress, and was then engaged in a contest of his seat with one claiming to have received such election, and that he believes that the said prosecution on the indictment above set forth is incited against him by a conspiracy to prevent him, by intimidation, from holding an office under the United States, and from discharging the duties thereof, and by the same to injure him in his property, and to molest, interrupt, hinder and impede him in the discharge of his official duties, and that said indictment,is presented with intention to deprive him of his rights, privileges and immunities secured by the constitution and laws of the United States, to which, as a citizen, he is entitled.\\\" He alleges the existence of great prejudice against him in said county, excited through such contest, and that he cannot enforce, in the judicial tribunals of the part of the state where the said prosecution is pending, the right secured to him by the laws, providing for the equal civil rights, as citizens of the United States, of all persons within the jurisdiction of the United States.\\nThe removal of the cause is claimed under Section 641 (page 114) of the Eevised Statutes of the United States. This section provides that \\\"-when any civil suit or cripiinal prosecution is commenced against any person who is denied or cannot enforce, in the judicial tribunal of the state, or in the part of the state where such suit or prosecution is pending, any right secured to' him by any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction of the United States,\\\" such suit or prosecution may, upon the petition of such defendant, filed in the state court at anytime before the trial or final hearing of the cause, stating the facts and verified by oath, be removed for trial into the next Circuit Court to be held in the district where it is pending. It further directs that \\\" upon the filing of such petition all further proceedings in the state court shall cease, and shall not be resumed except as hereinafter provided.\\\" The section in question extends the right of removal to certain other cases not important to be specially considered at this time, as the construction of the section can be ascertained without particular reference to such omitted portions.\\nThis court is charged with the enforcement of the constitution of the United States, and the acts of congress passed in conformity with it, in cases within its jurisdiction, as effectually as if it had been brought into existence under power created by that constitution. We must settle the construction of the constitution and laws of the United States, subject to revision by the Supreme Court of the United States, whenever a similar duty would be imposed, as it regards the constitution and laws of our own state. The section in question must be regarded, so far as it concerns criminal prosecutions commenced in a state court for the redress of wrongs committed against the laws of the state, as, in substance, an interdict of such prosecution whenever, by the law governing the court, some right is denied that is secured to the defendant under the constitution and laws of the United States, where such provision is intended to seem re equal civil rights among all citizens and persons residing in the United States, and where the deprivation of such right is material to his defence. In this respect there are but two views to be taken of the intended effect of the act of congress over proceedings in a criminal cause, after arresting its course in the state court; one is that the cause shall proceed to trial and judgment in the United States Circuit Court, and the other that it shall cease altogether, or until by some authority, not very clearly pointed out, jurisdiction to proceed shall be restored to the state court. The first-stated of these views is without reasonable support. It assumes that the Circuit Court of the United States can obtain jurisdiction of crimes committed against the laws of the states, and of the penalties imposed therefor by such laws. It would be singular, indeed, if such an extraordinary power should b^ found to have laid dormant through a century of our national existence, escaping the attention of the ablest jurist. The difficulty in the way of such a jurisdiction is fundamental. What character would such a criminal prosecution obtain on removal into the United States courts ? It certainly would not then be a criminal case in the sense contemplated by the constitution and the acts of congress settling the criminal jurisdiction of the Circuit Court. A criminal case, as usually understood under the common law, is a proceeding by a sovereign of a realm in his own courts against one subjected to his authority for a violation of bis laws. The United States is such a sovereign, and proceeds in such manner in the courts of the United States clothed with criminal jurisdiction.\\nThe United States courts, as criminal courts, when proceeding by indictment, act only on such cases as are found by grand juries convened under the laws of the United States, and serving in the United States courts alone. Public officers of the United States conduct and control such proceedings. Beyond doubt, the Circuit Court, as an incident to a civil action properly pending before it, can pronounce a judgment that derives its force wholly under the laws of a state, but that results from a direct grant of such jurisdiction in the constitution of the United States. The constitution confers on the courts of the United States jurisdiction of \\\" controversies \\\" between parties of a certain character. Const. U. 8., Art. III. In no just sense can a criminal proceeding in the courts of the state be regarded as a controversy as that term is used in the constitution of the United States. So the court of a foreign state can enforce, as between parties subject to its jurisdiction, rights having their origin and sanction only under the laws of another state. No such attempt has ever been made to transplant criminal jurisdiction, and it is inconsistent with the nature of such proceedings. In the constitution of the criminal administration of all civilized states, the functions of justice and mercy are inseparably united. While the administration of justice is committed to one source of public authority, the power of pardon is usually placed in the hands of another. A subordinate authority to control and supersede such prosecutions is placed in some authority, either executive or judicial. Will it be contended that the administration is carried to the courts of the United States, leaving the functions of ameliorating its severity in the hands of the state authorities, or that these attributes are carried over into the same jurisdiction, to be exercised in some manner never pointed out by any constitution, law or precedent? The acts of congress do not attempt to solve the numerous difficulties in the way of such a jurisdiction and we shall not attempt it. It is evident that if it had been the intention of congress to change radically the rules, forms and substantial incidents of the proceedings of the criminal courts of the United States, some evidence of such an intention would have appeared in the acts in question; whereas, nothing of that kind appears. We cannot presume such an intent. It must be concluded that a criminal proceeding, removed into the United States court, if it can proceed at all in those courts, must do so as a civil cause. Such a proposition carries absurdity on its face, and need not be considered. We are compelled, then, to conclude that the object of the act was to terminate certain criminal proceedings, having their origin under the laws of a state and in the courts of a state, by removing them to a court having no authority to proceed in them. Although- this conclusion leaves the relations of the courts of the states and of the United States in an anomalous and unfortunate condition, and may give rise to the inquiry whether any constitutional authority exists in the congress of the United States to interdict proceedings in state courts on grounds involving the integrity of state administration alone, especially when full authority has been granted for the correction of any errors that these courts may commit-, on failures to give full force to the constitution and laws of the United States in a court having appellate jurisdiction over the state courts for that purpose, yet we are forced to conclude, by the terms of the act itself, that such was the intention of the body from which it emanated.\\nUnder the view we take of the case, it will not become necessary to examine the authority of congress to reach such a result, as we do not regard the case in hand as coming within the act in question. Considering, then, that the object of the act of congress was to stop proceedings of a criminal character pending in a state court under certain circumstances, it becomes evident that it was only intended .that such authority should be exercised when the law of the forum thus invaded does not admit of a defence that involves some ground of right, arising or secured under provisions of the constitution and laws of the United States intended to secure equal civil rights. Assuming, for the purposes of the argument, that congress possesses such powers in any degree, and a reasonable case for its exercise might be imagined when such courts had not the legal measure of power to enforce some right arising under or secured by the constitution and laws of the United States, provided there was no other or better remedy. Such a case might arise when one indicted in a state court, having full right of citizenship under the constitution and laws of the United States, is, by the law of a state, deprived of a standing in the court allowed to citizens at large. If the right of trial by jury, of being confronted by witnesses, or to any of the incidents of a regular and usual arraignment, trial, verdict and judgment allowed to other citizens, be denied such a person, it may well be said that a tribunal, thus destitute of the means of administering justice in the case, is not entitled to be regarded, under the constitution and laws of the United States, as possessing any competency to act upon the rights of such persons. But even in this case a question would remain whether an adequate remedy is not afforded by the appellate jurisdiction of the Supreme Court of the United States, acting on the proceedings of the court of last resort in the state upon such case, inasmuch as in such an appeal the defendant could well say that he had been denied a right claimed under the constitution and laws of the United States; but that need not be considered. It may be observed that no such defect of authority is alleged or exists in the present case.\\nOn what principle could legislation by congress be carried beyond the point ? If such a power exists, it need not be confined to the cases enumerated in the act in question, but may extend to any case when either the prosecution or defence set up in a state court involves any right or modification of right originating under or secured by the constitution and laws of the United States. When, then, it is considered to what extent the laws of the United States enter in some degree into contracts and rights of action and defence, and how extensively they might be made to influence them through the various powers committed to congress by the constitution \\u2014 notably, of those relating to excise and imports \\u2014 some conception may be formed of the possible extent of such a jurisdiction. It may be said that it cannot be presumed that congress will stretch a prerogative to its utmost limit, and, therefore, in considering the nature of such a jurisdiction, we ought to have in mind only that idea of it which appears to be reasonable and consistent with the general objects of the constitution. This view, reasonable enough when applied only to the ordinary motives of a legislative body, has no applioation to cases involving the equilibrium between the different parts of a complex government established by fundamental laws. The constitution of the United States placed the security of the states against federal encroachment on no such low ground. Its principle is to circumscribe and limit the powers that may be detrimental to the rights of the states, and to trust as little as possible to the assumed principle that rival governments, acting in the same realm or sphere, will be controlled by moderation towards each other.' Those who framed that instrument were too well versed in the History of government to entertain such an optimistic idea. If, then, the constitution impresses the important truth that, in maintaining the equilibrium of this complex government, reliance must be had solely in limitations of public authority, the interpretation of that coristitution, and of the law passed under it, must be largely influenced by it. If it be conceded that power exists under the act of congress, even to the limited extent already considered, there is still a jurisdiction of incalculable limits, and of sufficient potency to work out material changes in the structure of the government and the equilibrium of its parts. But if the plenary powers contended for by the defendant exist, the equilibrium between the states and the national government, sought so carefully by the constitution, is practically destroyed.\\nThe appellant contends that prejudice, based on his being a person of color, and formerly a slave, in his political opinions and associations, and on the ground of services rendered during the late war to the United States, exist in the country where the indictment was found. Is this a case within the act of congress, assuming the facts to be as stated by him ? If so, then the existence of local prejudice likely to affect the rights of a party prosecuting or defending in a state court is ground for inhibiting such court from exercising its jurisdiction, under the authority of an act of congress, where such prosecution or defence involves any direct or incidental right arising or secured under the constitution or laws of the United States. If the rights of equal citizenship are entitled to this protection, then all other rights of the same origin or sanction are entitled to equal protection. The fourteenth and fifteenth amendments of the constitution, intended to secure equal civil rights in this respect, do not place such cases on higher ground than other rights secured under the constitution. Congress is authorized to enforce such provisions by \\\"appropriate\\\" legislation. By appropriate legislation is clearly meant such legislation as that sanctioned by the instrument at large. Unless, then, such legislation as we have under consideration would be appropriate in the case of other rights secured under the constitution, it would not be embraced within the intention of those amendments. We are at liberty, therefore, to consider the subject, on general principles, applicable to the constitution at large.\\nThere is no clause in the constitution of the United States that guarantees a just administration of the laws of the states within their proper sphere as affecting rights enjoyed under that constitution, except as that is implied in certain provisions conferring jurisdiction on the federal courts, both original and appellate. The power in question will not be claimed to arise under that claim of jurisdiction; from what source, then, can it arise ? There is nothing in the constitution as originally framed, or in the amendments, that can by any process of reasoning be perverted into such a guaranty. The idea of stopping the administration of justice because it is imperfect, has no place among the principles of the law nor the practice of governments. You might as well arrest the action of the heart because the blood is impure. To stop it on the ground that the community surrounding the court, and possibly affecting the purity of its administration, is in a temper unfavorable to a litigant, without any provision for transferring the trial to another part of the same jurisdiction where circumstances of a more favorable character exist, is to acknowledge exhaustion of the capacity and means of government. The application of the views here presented to the case made by the appellant's petition, is so obvious that it needs no particular discussion.\\nThis court held in Barker v. Bowen, 8 S. C. 400, that in order to remove a cause from the state court to the United States Circuit Court, it was necessary that sufficient cause for such removal should appear on the face of such petition. It is not necessary for the purposes of the present case to say whether the facts alleged are traversable in the state court; for the defect is one of law appearing on the face of the petition in the present case. The general statement of the petition that the defendant \\\"is denied and cannot enforce in the judicial tribunals of the part of the state, where the said prosecution is pending, the rights secured to him by the laws providing for equal civil rights as citizens of the United States of all persons within the jurisdiction of the United States/' is .insufficient- in itself, independent of the ground of fact laid for such a statement. It assumes rather the character of an indictment or impeachment of the tribunal before which one is laboring under a charge of crime, proceeding from the alleged criminal against his sovereign sitting in judgment upon his conduct, than an exception to the right of the court to proceed in the case. If such an anomalous proceeding is to be tolerated as consistent with the practice of civilized communities, the indictment, at the least, ought to be specific and lay a foundation of fact within the act of congress. But where we look into the facts alleged they amount to nothing more than a charge of prejudice existing in the community. If a question of removing the cause for trial to another county had been raised, the court could have looked into the truth of the facts alleged, but this was not the defendant's demand. He selected his own forum, and he must stand by that selection. The prayer of the petition was properly denied.\\nThe privilege of a member of congress was not available and was properly refused. An indictment for bribery is not arrested \\u2022by such privilege.\\nThere was no duplicity in charging in the indictment that the defendant corruptly accepted a gift and gratuity, and a promise to make a gift. The promise must be regarded as relating to a gift additional to that alleged to have been given and accepted. There is no inconsistency in taking a certain sum and the promise of a further sum, and the indictment must be read in that sense. The charge is not in any sense in the alternative, and is \\\"only cumulative as it regards the consideration of the bribe, a single act of corrupt taking being alleged.\\nThe statement that the question of legislation to which the bribe related, \\\"was and might be by law brought before,\\\" etc., is without fault. It was merely equivalent to saying that it was brought before him to act upon as a senator in conformity with law. It cannot be referred for explanation to a somewhat similar phrase in the statute constituting the crime, for the latter is in the disjunctive and intended to treat cumulatively the cases to which the crime should apply, while the indictment alleged only a single case, and uses that language solely to characterize that case.\\nThe joint resolution in regard to which the bribe was alleged to have been offered and received was sufficiently set forth by its title, that being the due and ordinary mode of designating the particular action of the legislature in a given ease. The terms of the resolution did not in the least enter into the constitution of the offence. The essence of the crime was the acceptance of a gratuity, or the-promise of one \\\"under an agreement\\\" that his vote should be given in a particular manner as to some \\\"question, cause, or proceeding which is or may be by law brought before him in his official capacity.\\\" The identity of the \\\"question\\\" is complete with the statement of the title of the measure of legislation that was thus contemplated. The terms of that resolution, as it was finally passed, are immaterial, as they were subject to change after the agreement, for the bribe was complete without changing the identity of the \\\" question \\\" that was the subject of the agreement. This objection to the fourth count is disposed of by what has just been said.\\nThe jury were charged that the fifth count was defective, and therefore' the objections to that count need not be considered.\\nThe ground urged for a new trial will next be considered. There was no error in admitting into evidence the printed records of the proceedings of the senate in proof of such proceedings. Article II., Section 26, of the constitution, requires each house to keep and publish a journal of its proceedings. The journals so published are competent evidence to show what matters were pending before the legislative bodies at any particular time, and as that was a matter at issue, it was proper to introduce the journals as the highest legal proof of the fact.\\nIt is not necessary to consider the competency of such proof to establish the fact of an act done by the defendant, as an individual member of the senate, that constituted \\u00e1 material part of the crime charged, for no such question is raised. The evidence being competent for any purpose was properly admitted.\\nNor was there error in admitting proof from the books and memoranda of the bank. The state sought to corroborate the testimony of an accomplice by a line of proof that embraced certain facts, of which one was that a credit had been given to the defendant by the bank in which he kept his account, as upon a deposit of the check paid to him for the purpose of the bribe as alleged by such accomplice. It was competent to prove the fact of such credit being, given by the books of the bank. The memorandum alleged to have been made in the ordinary course of business by the officer who received the deposit, and which was intended to show the nature and amount of the deposit, must be regarded as representing the original note or memorandum from which the books were made up, and as such was competent to explain the books. There was accordingly no error in its reception in evidence. As no exception brings before us the legal force of these proofs, that subject need not be considered.\\nThe court having overruled all the exceptions the appeal must be dismissed.\\nMcIyer, and Hasjkell, A. J7s, concurred.\\nAnte page 195.\"}"
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+"{\"id\": \"373592\", \"name\": \"KERSHAW COUNTY v. RICHLAND COUNTY\", \"name_abbreviation\": \"Kershaw County v. Richland County\", \"decision_date\": \"1901-07-12\", \"docket_number\": \"\", \"first_page\": \"75\", \"last_page\": \"80\", \"citations\": \"61 S.C. 75\", \"volume\": \"61\", \"reporter\": \"South Carolina Reports\", \"court\": \"Supreme Court of South Carolina\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T22:21:25.648294+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"KERSHAW COUNTY v. RICHLAND COUNTY.\", \"head_matter\": \"KERSHAW COUNTY v. RICHLAND COUNTY.\\nCounties. \\u2014 Costs can only be paid as allowed by statute, and there being in this State no statute providing for the payment by a county in which a crime is committed of the costs and expenses of the trial therefor in another county to which venue has been changed, the latter cannot collect of the former sums so paid by it.\\nBefore Townsend, J., Richland, November, 1900.\\nReversed.\\nClaim by Kershaw County against Richland County for costs and expenses of trial of W. R. Crawford, charged with murder. Venue changed to Kershaw County from Rich-land County. From decree of Circuit Court reversing order of county board of commissioners of Richland County, disallowing the claim, Richland County appeals.\\nMessrs. Melton & Belser, for appellant,\\ncite: Costs and fees are purely statutory: 8 Ency., 955 ; 56 S. C., 506, 411; 54 S. C., 538. And such statutes are strictly construed: 10 S. C., 43; 40 S. C., 445. No statute in this State providing for payment by Richland County of this claim: Art. VI., sec. 2; 22 Stat., 12; 14 Stat., 84, 339. In absence of such stat ute, Richland, County is not liable for the costs of trial in Kershaw County: 7 Ency., 955, 956; 81 Mo., 72; 6 Ala., 72; 10 Neb., 304. Bach county in which a case is tried is liable for the fees of (1) jurors and constables: Rev. Stat., 676, 691, 677; 52 S. C., 91. (2) Porters and ticket boy: Rev. Stat., 645. (3) Meals furnished jurors and constables: Rev. Stat., 2414. Provision in lynching cases: 'Con., art. VI., sec. 6, 22, 213. There is no liability oh the ground of implied contract: 14 S. C., 403.\\nMessrs. C. L. Winkler and Jno. P. Thomas, Jr., 'contra,\\ncite: Only points that can be considered here are those made in the grounds of appeal: 27 S. C., 12. Binding of facts by Circuit Judge on appeal from county commissioners cannot be reviewed here: 40 S. C., 281. Are the expenditures made by Kershaw County and its sheriff in the trial of this case charges against Richland Co.? 52 S. C., 590; Rev. Stat., 645; 21 Stat., 481; Con., art. VII., sec. 9; art. V., sec. 18; art. VI., sec. 2; 22 Stat, 12; 4 Kan., 314; 4 Ark., 473.\\nJuly 12, 1901.\", \"word_count\": \"1748\", \"char_count\": \"9925\", \"text\": \"The opinoni of the Court was delivered by\\nMr. Justice Pope.\\nThe statement in the \\\"Case for Appeal\\\" is as follows: \\\"On the 3d1 day of April, 1899, a bill of indictment was found by the grand1 jury for Richland County, S. C., charging W. R. Crawford with the murder of one Mrs. Stewart, alleged to1 have been committed in the said county of Richland. Subsequently, on motion of the defendant, Crawford, an order was obtained changing the venue from- Richland County to Kershaw County, and the case so removed was tried thereafter at the June term of the Court of General Sessions for said Kershaw County. On the 9th day of June, 1899, the following itemized statement, duly verified, of the fees, costs and expenses of the trial \\u2014 all of which accrued subsequently to the order changing the venue as aforesaid \\u2014 was presented to the county board of commissioners of Richland County for approval: 12 jurors, 3 days, $54.00; 5 constables, 3 days, $22.50; 2 constables, 2 nights, $6.00; x porter, 3 days, $4.50; 1 porter, 2 nights, $3.00; 1 ticket boy, 1 day, $1.50 \\u2014 $91.50; 72 meals for jury and constables, at 25c. each, $18.00; -total, $109.70.\\\" Which account was duly certified by Joel Hough, Esq., as clerk of court for Kershaw County. And) the following language is used in the \\\"Case for Appeal\\\"The county board of commissioners for Richland County disallowed the whole of said claim on the ground that the same did not constitute a legal claim against said Richland -County, but made no objection to the proof of said claim.\\\" Thereupon Kershaw County appealed from said -disallowance by the said county board of -commissioners for Richland County to the Circuit Court for Richland County, which appeal came on to be heard before h!is Honor, Judge Townsend-, who reversed the order of disallowance by the county board of commissioners for Richland 'County; whereupon the said board appealed to this Court from Judge Townsend's judgment on the following grounds:\\n\\\"1. Because his Honor erred in finding as matter of fact that the correctness of the items making up the claim of Kershaw County herein was conceded upon the hearing of this cause.\\n\\\"2. Because his Honor erred in finding as matter of law that the claim of Kershaw County herein constitutes a legal and valid claim against Richland -County, and that the county board of commissioners for Richland County erred in declining to allow and pay the same; whereas-, it appearing that all of the items of said claim accrued after the order changing the venue from Richland County to Kershaw County and during the trial of the cause so transferred, in said Kershaw County, his Honor should have held that the same do not constitute a legal and valid claim against said Richland County, and so holding should have dismissed the appeal.\\n\\\"3. Because his Honor erred in ordering and decreeing that the county board of commissioners for Richland County do audit the whole of said claim and ordier the same to be paid as a valid and1 legal claim against Richland County; whereas, it appearing that Kershaw County had not paid the items representing fees of witnesses, aggregating $688.40, and clerk's costs, aggregating $8.65, and had made no claim therefor, and that no appeal had been taken from the action of the county board1 of commissioners for Richland County in declining to allow and pay said items, the same were not involved at the hearing, and his Honor was without jurisdiction to render judgment with reference thereto.\\\"\\nI-t was agreed by counsel that the decree of the Circuit Judge should be altered by striking out the figures $796.55 therefrom and by inserting the figures $109.70 in lieu thereof.\\nWe will now consider the first ground of appeal. It is true, as stated by the appellant, that the correctness of the items making up the claim of $109.70 was not presented as an issue to be passed upon by the Circuit Judge \\u2014 hence this ground of appeal is sustained.\\nThe question raised by the 'second ground of appeal is for the first time presented to this Court for determination. In the case of Colleton County against Hampton County, 52 S. C., 589, no such question was presented, considered or determined \\u2014 indeed, it was reserved \\u2014 hence it is no authority in this contention. This is a case of costs, fees and' expenses arising from the trial of a cause in the 'Circuit Court. It is admitted that the common law allowed no such claims to be made. It is purely a question, therefore, under the statutes of this State \\u2014 8 Ency. PI. & Practice, 955; Whittle v. Saluda County, 56 S. C., 506; Green v. Anderson County, 56 S. C., 411; Hightower v. Bamberg County, 54 S. C., 538. Costs are regarded in this State in the nature of penalties. State ex. rel. Bull v. County Treasurer, 10 S. C., 43; Lancaster v. Bamberg County, 40 S. C., 445; Thomson v. Farr, 1 Rich., 4. Is there any statute in this State directing, in so many words, that the county from which a case is removed for trial to a different county, shall pay to such latter county the costs or fees or expenses which accrue from1 the trial of such removed case? We have been unable to find any such statute, and the industry of counsel on each sidle to this controversy has not brought such a statute to our attention. Two reasons are suggested by the respondents why Rich-land County should pay these costs, fees and expenses to Kershaw County: first, because, strictly speaking, it is no longer a question of costs, fees and1 expenses, for as such they were presented1 to and paid by the county of Kershaw, but it is a question of liability for a 'burdien borne by Kershaw County for, and instead of, Richland County. Reference is made in respondent's argument to the power confided in the county board of commissioners, both by the Constitution of 1895 and the statutes of the State providing for a county government, to pay claims against the respective counties of the State. As wide as the latitude accorded under these instruments to the exercise of power in the county governments in the payment of claims may be, still the statute law has so wisely limited such county governments in the exercise of such power that only legal claims can be paid by them. There can be no claim based upon any supposed equity.' 'Equity follows the law. There has never been cited a claim as to costs, fees and expenses which has been paid as resulting from equity. 7 A. & E. Ency. of Law, page 955 (2d ed.), is as follows: \\\"Costs are not given in criminal cases by the common law, and county commissioners have no authority to pay them except in specific circumstances prescribed by statute.\\\" And on page 956 the same work contains these words: \\\"Statutes exist in many States providing that the costs accruing from a change of venue in a criminal case shall be paid by the county in which the indictment was found. And it seems to be settled that the county in which a crime was committed can be held liable to the county to which the cause was removed for trial only by virtue of some statute\\\" (italics ours). The Circuit Judge was in error.\\nThe third ground of appeal was passed upon in our pre liminary remarks. The Circuit Judge was in error here also, but it has been corrected by consent.\\nLastly, we observe that we have not paid any attention to the items comprising the costs, fees andi expenses herein involved!, because we have-already determined that no costs, fees or expenses could be recovered' by the plaintiff in this cause from Richland County.\\nIt is the judgment of this Court, that the judgment of the Circuit Court be reversed, and that the action be recommitted to the Circuit Court with instructions to formulate a judgment dismissing the plaintiff's appeal from the judgment of the county board of commissioners for Richland County.\"}"
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+"{\"id\": \"375405\", \"name\": \"SLOAN v. HUNTER\", \"name_abbreviation\": \"Sloan v. Hunter\", \"decision_date\": \"1903-02-19\", \"docket_number\": \"\", \"first_page\": \"235\", \"last_page\": \"242\", \"citations\": \"65 S.C. 235\", \"volume\": \"65\", \"reporter\": \"South Carolina Reports\", \"court\": \"Supreme Court of South Carolina\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T19:31:35.744471+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"SLOAN v. HUNTER.\", \"head_matter\": \"SLOAN v. HUNTER.\\n1. Ip Homestead in lands be once set apart, no exceptions filed, and proceedings recorded, it can never be sold to satisfy that judgment, although there may have been errors of law in the assignment.\\n2. A Homestead set apart in 1889 against debt contracted in 1877 cannot be sold under execution against administrator of deceased judgment debtor, although the father and mother be dead, and the children all adults and.living off the land.\\n3. Exceptions too general.\\nBefore Gage, J., Laurens, February, 1902.\\nAffirmed.\\nFrom dismissal of rule against sheriff in case of J. B. E. Sloan against R. Lee Hunter, administrator, plaintiff appeals.\\nMessrs. N. B. Dial arid F. P. McGowan, for appellant,\\ncite: Law existing when debt was contracted governs: 13 S. C., 355; 21 S. C., 126; 41 S. C., 109 ; 21 S. C., 372. When homestead fell in land became subject to jtidgment: 41 S. C., 109; Con. 1868. Acts attempting to create homestead under Con. of 1868 are unconstitutional: 11 S. C., 333; 47 S. C., 446.\\nMessrs. Ferguson & Feather stone, contra,\\ncite: As to homestead: 40 S. C., 189; 18 S. C., 601; 29 S. C., 106; 41 S. C., 116; Con. 1868, art. II., sec. 32; 15 St., 370, 371; 54 S. C., 208; 25 S. C., 98. As to lien of judgment: 15 St., 498; Code 1882, sec. 310; 32 S. C., 228; 39 S. C., 262. As to the execution: 15 S. C., 149; 16 S- C., 72; 21 S. C., 154; 5 Rich. L-, 501.\\nFebruary 19, 1903.\", \"word_count\": \"2657\", \"char_count\": \"14726\", \"text\": \"The opinion of the Court was delivered by\\nMr. Justice Gary.\\nThis is an appeal from an order discharging a rule against the sheriff, requiring him to show cause why he refused to levy the execution in the above stated case, on two tracts of land, one containing 50 and the other 150 acres, which had been set off to Henry M. Blunter as his homestead. The contention as to the 50 acre tract was abandoned. On the 13th of June, 1881, J. B. E. Sloan recovered judgment against Henry M. Hunter on a debt contracted 12th October, 1877. The land was set off to Henry M. Hunter as a homestead on the 15th of December, 1889. All the proceedings relating thereto were duly recorded in the homestead book. The homestead was set off in the case of J. B. E. Sloan v. Henry M. Hunter. No exceptions were filed to the return of the commissioners by J. B. E. Sloan. Henry M. Hunter did not live upon the 150 acres nor was it appurtenant to his dwelling. Henry M. Hunter died in 1893. On the 12th of May, 1894, summons to revive said judgment was served on R. Ree Hunter, as administrator, and the Court granted an order in July, 1894, reviving the said judgment. Execution was issued 20th December, 1895, and lodged with the sheriff December 23d, 1895. The rule was heard by his Honor, Judge Gage, in October, 1901, and he dismissed it, on the ground that the land having been set off as a homestead, was exempt from levy and sale.\\nThe appellant's first two exceptions are as follows: \\\"I. Because his Honor, Judge Gage, erred in holding that the alleged dedication of homestead of Henry M. Hunter estopped the plaintiff from ever thereafter enforcing his judgment and execution against the land embraced in said alleged homestead. II. Because he erred in holding that the setting off of said homestead was a perpetual bar to the enforcement of the execution, when the homestead record did not .show that the land set off as homestead embraced the dwelling house of Henry M. Hunter, and when it was neither the dwelling house nor appurtenant thereto.\\\" We deem it only necessary to cite the cases of Symmes v. Symmes, 18 S. C., 601; Chalmers v. Turnipseed, 21 S. C., 126, and Trimmier v. Winsmith, 41 S. C., 109, 19 S. E. R., 283, to show that these exceptions cannot be sustained.\\nThe third exception assigns error as follows: \\\"III. Because he erred in not holding that when Henry M. Hunter and his wife died,and his children had attained their majority and dispersed from his home, their right of homestead then ceased to exist, and the assignment thereof became extinct.\\\" The rule is well settled in this State that the right of homestead is to be determined by the laws of force when the debt was contracted. Sec. 32, art. II., of the Constitution of 1868, contains the following provisions : \\\"The family homestead of the head of each family residing in this State, such homestead consisting of dwelling house, outbuildings and lands appurtenant, not to exceed the value of $1,000 and yearly products thereof, shall be exempt from attachment, levy or sale, or any mesne or final process, issued from any Court It shall be the duty of the General Assembly at their first session to enforce the provisions of this section by suitable legislation.\\\" Accordingly, in 1868, the General Assembly passed an act (14 Stat., 20), the fourth section of which provides: \\\"The estate or right of homestead of any family existing at his death shall continue for the benefit of his widow and minor children, and be held and enjoyed by them until the youngest child is twenty-one years of age, and until the marriage or death of the widow, and be limited to that period.\\\" Again, the General Assembly passed an act in 1872 (15 Stat., 230), the fourth section of which provides: \\\"That the homestead when assigned as herein prescribed shall vest in the head of the' family in fee simple, and be freed and discharged from all debts and liabilities whatever so long as he or she shall remain resident in the State, and no longer.\\\" In the eighth section of this act, which secures a right of homestead to the widow and minor children of any deceased father or husband, there is, however, no provision as to the time during which such exemption shall continue. These acts were repealed by'the act of 1873 (15 Stat., 370), the second section of which is as follows: \\\"That when thirty days shall have elapsed, after the filing of the return of said appraisers setting off a homestead to any debtor, according to the provisions of section 1 of this act, and no good cause has been shown or exceptions filed against said return, such debtor may have such return recorded in the office of the register of mesne conveyance of the county in which the same is located, and upon such return being so recorded in thirty-three days after the proceedings have become final, the title to the homestead so set off and assigned shall be forever discharged from all debts of said debtor then existing or thereafter contracted.\\\" Section 4 of that act is as follows: \\\"If the husband be dead, the widow and children living on the homestead, if the father and mother be dead, the children living on the homestead, whether any or all such children be minors or not, shall be entitled to have the family homestead exempted in like manner as if the husband or parents were living; and the homestead so exempted shall be subject to partition among all the children of the head of the family in like manner as if no debts existed: Provided, That no \\u2022 partition or sale in that case shall be made until the youngest child becomes of age, unless upon proof satisfactory to the Court hearing the case, such sale is deemed best for the interest of such minor or minors.\\\" These sections, with some immaterial changes in section 2, have continued of force since the act of 1873, as will be seen by reference to sections 2627 and 2629 of the Revised Statutes. On the 13th day of December, 1880 (17 Stat., 320), the Constitution of 1868 was amended by striking out the section hereinbefore mentioned and inserting in lieu thereof another section, which provides: \\\"The General Assembly shall enact such laws as will exempt from attachment and sale under any mesne or final process, issued from any Court, to the head of any family residing in this State, a homestead in lands, whether held in fee or in any lesser estate, not to exceed in value $1,000 with the yearly products thereof.\\\" At the time when the plaintiff's debt was contracted, section 313 of the Code provided: \\\"This section shall not be construed so as to make final judgments in any case a lien on the real property of the judgment debtor exempt from attachment, levy and sale under the Constitution.\\\" This provision is now found in section 309 of the Code. The foregoing acts and provisions of the Constitution are set out in the cases of Chalmers v. Turnipseed, 21 S. C., 126, and Stewart v. Blalock, 45 S. C., 61, 22 S. E. R., 174. The constitutional amendment of 1880 in nowise affects the foregoing sections of the act of 1873, which, as we have stated, remained of force and were necessarily considered by the Court in cases arising since the amendment aforesaid. Therefore, the language of the' Court in construing these sections is applicable to cases arising prior as well as subsequent to the amendment of 1880. In the case of Stewart v. Blalock, 45 S. C., 61, the Court says: \\\"Next comes the act of 1880, 17 Stat., 513, which is entitled 'an act to determine and perpetuate the homestead,' and seems to be the law now in force, at least, so far as the question now presented is concerned. The second and fourth sections of that act are substantially the same as those above cited from the act of 1873. From this hasty review of the legislation upon the subject, it is apparent that in the earlier acts an intention to limit the duration of the exemption was expressed; but in the later acts no such intention appears; and, on the contrary, it appears that the intention was to declare the property exempted forever discharged from liability for debt. This intention is expressly declared in the second section of the act of 1880, in reference to the property exempted under process against the debtor, and is necessarily implied from the fourth section of the act providing for a claim of homestead by the widow and children, by the express declaration that such property is subject to partition amongst all the children 'in like manner as if no debt existed.' We do not think, therefore, that the proposition upon which the appeal of the creditors rests can be sustained.\\\" The power of the debtor to sell his homestead is thus stated in Cantrell v. Fowler, 24 S. C., 424: \\\"Now, if the judgment was no lien upon this property while it was in the possession of Ravan, because it was exempt under the homestead laws, and if, as has been held, a judgment debtor can sell or mortgage his homestead, then it follows that the judgment never could be a lien upon the property in dispute, for as soon as it was conveyed to the plaintiff it became his property, and as such, of course, not subject to the lien of a judgment against another person; for if, as we have seen, there was no lien upon it at the time of the sale to the plaintiff, then, of course, the plaintiff took his title free from any lien. The fact that the homestead had not been admeasured 'and set off, is a matter of no consequence.\\\" The principle is thus stated in Ketchin v. McCarley, 26 S. C., 1, 2 S. E. R., 1099: \\\"It is clear, therefore, that the land in controversy in this case was not only exempt from levy or sale under the execution issued to enforce McCarley's judgment, but was not subject to the lien of such judgment. If, then, the land was not subject to the lien of the judgment when it was conveyed to the plaintiff, it must necessarily have passed to her free from any such lien or encumbrance,and cannot now be subjected to the satisfaction of a judgment against her grantor. There is nothing in the inherent nature of a judgment which gives it a lien upon real property, but it acquires that quality solely from the statute ; and, as we have seen, the statute in this State not only does not make a judgment a lien upon all the real property of the judgment debtor, but expressly excepts so much thereof as is exempt from levy and sale under the Constitution. So that whenever it is ascertained, either by admission or otherwise, that a certain piece of real estate is exempt from levy and sale under the Constitution, it is at the same time ascertained that such real estate is not subject to the lien of any judgment against the owner thereof, and if sold by him is sold free from 'encumbrance.\\\" In Beaty v. Richardson, 56 S. C., 173, 34 S. E. R., 73, the Court says: \\\"It is well settled in this State, at least, that the homestead laws effect no change in the title to the property. As was said in Elliott v. Marshall, 19 S. C., at page 242, the purpose of such laws 'was not to create any new estate, or to invest estates already existing with any new qualities, or to subject them to any restrictions, but to secure a right of exemption by forbidding the use of the process of the Court to sell certain property for the payment of debts,' and as was said in ex parte Ray, 20 S. C., at page 248: 'We do not understand the homestead laws as designed to alter or in any way affect the statute for the distribution of intestates' estates, and they do not even purport to do so.' Now, if the homestead laws create no new estates and do not invest those already existing with any new qualities, -or 'subject them to any restrictions,' and do not 'in any way affect the statute for the distribution of intestates' estates,' why should they be held to affect in any way the statute of wills, by which it is declared (section 1987 of the Rev. Stat. of 1893), that any person having right or title to property, 'may dispose thereof by will in writing at his or her own free will and pleasure, except as herein provided/ and there is no provision therein forbidding any interference with the right of homestead.\\\" Section 2468 of the Code of 1902 provides that, \\\"When any person shall die without disposing of the same by will, his estate, real and personal, shall be distributed in the following manner\\\" We see no reason why effect should not be given to the \\\"statute of distribution\\\" as well to the \\\"statute of wills.\\\" The statute of 3 and 4 W. & M. makes a devisee liable \\\"in the same manner as the heir at law.\\\" Fogle v. Church, 48 S. C., 86, 26 S. E. R., 99. This' exception is overruled.\\nThe fourth exception is as follows: \\\"IV. Because he erred in not holding that all acts of the General Assembly passed prior to 1880, providing for the perpetuity of homesteads, were in conflict with the Constitution, and he should have held that the homestead ceased when the two necessary constitutional conditions ceased to exist, to wit: The head of the family, or family, and the family homestead.\\\" This exception is too general for consideration.\\nThe fifth exception is as follows: \\\"V.- He erred in not making the rule absolute, and in not ordering the sheriff to enforce said execution.\\\" This exception fails to point out any specific error.\\nIt is the judgment of this Court, that the judgment of the Circuit Court be affirmed.\"}"
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+"{\"id\": \"377454\", \"name\": \"PINCKNEY v. ATLANTIC COAST LINE R. R. CO.\", \"name_abbreviation\": \"Pinckney v. Atlantic Coast Line R. R.\", \"decision_date\": \"1912-10-02\", \"docket_number\": \"8331\", \"first_page\": \"528\", \"last_page\": \"563\", \"citations\": \"92 S.C. 528\", \"volume\": \"92\", \"reporter\": \"South Carolina Reports\", \"court\": \"Supreme Court of South Carolina\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T22:34:58.334526+00:00\", \"provenance\": \"CAP\", \"judges\": \"Messrs. Ci-iiee Justice Gary and Justice Hydrick concur.\", \"parties\": \"PINCKNEY v. ATLANTIC COAST LINE R. R. CO.\", \"head_matter\": \"8331\\nPINCKNEY v. ATLANTIC COAST LINE R. R. CO.\\nI. Master and Servant \\u2014 Railroads\\u2014Car Rerairer \\u2014 Blue Flas.\\u2014 Where the evidence tends to show a car repairer had had his blue flags run into and broken up, and himself narrowly escaped injury while working under a blue flag: that his superior on the spot knowing he had no flag ordered him under a car to repair it; that he told the conductor who soon thereafter ran a train into the car he was repairing; that he was going under a particular car to repair it; that he placed his fellow workman on the outside to look out for trains, the issues of negligence, contributory negligence and wilfulness were properly sent to the jury.\\n3. Ibid. \\u2014 Ibid.\\u2014The servant may disregard the usual reasonable rules of the master and obey the representative of the master on the spot.\\n3. Ibid. \\u2014 Ibid.\\u2014Fellow Servant. \\u2014 The master is liable for injury to the servant caused by his negligence combining and commingling with the negligence of a fellow servant as a proximate cause.\\n4. Ibid. \\u2014 Ibid.\\u2014Where a servant is employed by one railroad to work in a yard used by two roads jointly and does work indiscriminately for both roads, the one employing him is responsible for injuries received while working in such yard.\\nBefore SeasE, J., Colleton, November term, 1911.\\nAffirmed.\\nAction by J. B. Pinckney by guardian against' Atlantic Coast Line Railroad Company and Charleston & Western Carolina Railway Company.\\nThe motion to direct a verdict was made on the following-grounds :\\nFirst. \\u201cThere is no evidence tending to support the allegations of punitive damages, against either defendants.\\nSecond. \\u201cThere is no evidence tending to establish actionable negligence against either defendants.\\nThird. \\u201cThe entire evidence shows that the injury to the plaintiff was the result of his own negligence.\\nFourth. \\u201cThe entire evidence shows that the injury to plaintiff was the result of his contributory negligence as a proximate cause, and without which it would not have happened.\\nFifth. \\u201cThe entire evidence shows that the injury to plaintiff was the result of the act of a fellow servant, combining with plaintiff\\u2019s negligence as a proximate cause.\\n\\u201cIn addition to the grounds for the direction of a verdict already presented the Atlantic Coast Line Railroad Company asks your Honor to direct a verdict so far as it is concerned for the reason that-the testimony shows that the plaintiff in this case worked for both roads and that at the time of his injury he was working for the C. & W. C. Railway Company upon a car of the C. & W. C. Railway Company, was injured by a train and officials of the C. & W. C. Railway Company and the A. C. L. R. R. Co. had no part whatever in the infliction of the alleged injury to the plaintiff.\\u201d\\nDefendants appeal on the following exceptions:\\nI. \\u201cIt was error in his Honor to refuse the motion of the defendant to direct a verdict for the defendants on the fourth ground submitted in this behalf, to wit: \\u2018The entire evidence shows that the injury to plaintiff was the result of his contributory negligence as a proximate cause and without which it would \\\"not have happened,\\u2019 the error being-.\\n\\u201c(a) Assuming that the .testimony tended to establish actionable negligence as against the defendants or either of them in the matters complained of, which, however, defendants do not admit as a fact; the testimony shows conclusively that plaintiff was guilty of contributory negligence in undertaking to repair the car in the manner and way in which he did. It appears clearly from the testimony that there was no emergency \\u2014 that plaintiff- had the option to choose his own time within which to make the repairs \\u2014 that the repairs to be made were of little consecpience which was well known to plaintiff before he undertook to make the same, that he did not undertake to provide himself with a blue flag before entering on the work and did not call to the attention of the chief car inspector, Mr. Rabb, that he was going about the work in violation of the blue flag rule and did not ask at the time for a blue flag and made no effort whatever of any kind to procure a blue flag; that he knew the work was dangerous and knew the blue flag rule which absolutely required him to display the flag before going under the car and knew that he was violating the rule and admits that he knew it was a most dangerous thing to do.\\n\\u201c(b) Even if it be assumed that plaintiff\\u2019s testimo'ny was true, that most'of his flags were broken, yet the testimony shows that at least one flag was not broken, but was placed in the office where they were kept a day or so before the accident, and further, that at least some of the flags which he claims were broken were in condition to be used, the same having been torn in half, and the testimony clearly showing that the same could be used in this condition by placing them at the end of the car or on a stick in the center of the track, yet notwithstanding this, plaintiff made no effort whatever to find the flag which had been left in the office, and made no effort whatever to use the flags that were broken, and did not before undertaking the work ask Mr. Rabb whether a supply of flags had been received and were then available for use, it being respectfully submitted that it was the duty of the plaintiff .to comply with this rule if by the exercise of reasonable care on his part he could have complied.\\n\\u2022 \\u201c(c) Taking the most favorable view to plaintiff of his testimony it appears that several days before the accident he had requested Rabb to order a new supply of flags; that ample time had elapsed within which to receive the same and yet on the morning of the accident before undertaking the work of repairing the car he did not ascertain and made no effort to ascertain whether the flags had arrived, but without exercising any care whatever in undertaking to find out whether there were flags available undertook the work with full knowledge of its dangers and of the perils likely to follow, relying for his protection on an alleged conversation with the conductor whom he does not advise, however, that he intended in doing the work to violate the blue flag-rule, and rely on the protection to be given him by his fellow servant, Freeman, substituting and relying on said conversation and Freeman for the protection afforded by the blue flag.\\n\\u201cid) The testimony shows that the blue flags were available and could have been used, but instead of making use thereof and complying with the blue flag rule plaintiff deliberately and of his own free will violated defendants\\u2019 rule and substituted therefor his fellow servant, Freeman, and his alleged conversation with Conductor Partain.\\n\\u201c(e) Plaintiff failing to procure a blue flag should have refused to do the work and should not have gone under the , car without the protection of a blue flag. Fie knew the danger and knew the rule absolutely requiring the blue flag to be displayed before going under a car and with full knowledge of these conditions on his part and with full knowledge of the almost certain danger that would follow his violation of the rule, and there being no emergency was as a matter of law guilty of contributory negligence and his Honor should have so held.\\nII. \\u201cHis Honor committed error in not directing a verdict in favor of the defendants on the fifth ground submitted in this behalf, to wit: \\u2018The entire evidence shows that the injury to the plaintiff was the result of the act of his fellow servant combined with plaintiff\\u2019s negligence as a proximate cause,\\u2019 the error being:\\n\\u201c(a) The evidence shows that Freeman was a fellow servant of plaintiff, engaged in the same work as the plaintiff and on the same piece of work at the time of the accident and in the same department of labor. It shows that plaintiff relied on Freeman to warn him of the approach of any train while he was under the car engaged in making repairs; that Freeman failed to notify him of the approaching car in time to enable him to escape without injury and his Honor should on this ground have directed a verdict for the defendants.\\n\\u201c(b) There is no testimony whatever tending to show that the injury to plaintiff was caused by the combined negligence of the master and fellow servant. There is no allegation in the complaint charging a failure to furnish sufficient appliances, but even if it be assumed that the complaint embraces this and even if it be assumed that there is evidence tending to show a failure on the part of the defendants to furnish sufficient flags and further that the conductor was told by plaintiff of his intention to repair the car, still it is respectfully submitted that there is nothing in this upon which to predicate any charge of combined negligence as causing the injury. The conductor was not told by plaintiff that he was without a flag or that he intended to rely upon the notice given to the conductor as a substitute for the blue flag rule. He was not advised that the blue flags were not available, and had no notice or any information from which notice can be legally inferred or charged against the company that the flags could not be had, and that Pinckney intended in making the repairs to do so in violation of the blue flag rule, and it is, therefore, respectfully submitted that even if it be held by this Court that there is some evidence tending to establish negligence against the company in either or both of these particulars, still it cannot logically be said that the injury was the result of such negligence combined with the negligence of Freeman, a fellow servant. Each is entirely independent of the other and there is no element of combination, and, in fact, no connection whatever between the alleged negligence of the master and the admitted negligence of Freeman, the fellow servant.\\n\\u201c(c) In order for plaintiff to avail himself of the doctrine of combined negligence of the master and fellow servant it must appear that the same was the proximate cause of his injury. If the proximate cause was the negligence of the fellow servant then plaintiff cannot recover, and it is respectfully submitted in this case that it appears absolutely and to the mathematical demonstration that the proximate cause of the injury was the negligence of plaintiff in relying on his fellow servant, Freeman, and the negligence of his fellow servant in failing to notify him of the approach of the engine in time to escape from under the car.\\nIII. \\u201cIt is respect full)'' submitted that his Honor committed error in charging the jury as follows: \\u2018Therefore, when you are measuring and investigating the conduct of any person to a transaction you will ask yourselves did he measure up to that standard, to wit, did he do that which a man of ordinary prudence and care would have done. If he did then he cannot be said to be guilty of negligence,\\u2019 the error being:\\n\\u201c(a) His Honor in so instructing the jury charged in respect to matters of fact in violation of section 26, article V of the Constitution of 1895.\\n\\u201c(b) What a man of ordinary prudence and care would have done in any given circumstances is at most only evidence to go to the jury on the question of negligence, but is not a conclusive test whether due care has been exercised, and his Honor in so instructing the jury as he did in the language complained of committed error of law.\\nIV. \\u201cIt is respectfully submitted that his Honor committed error in charging the jury as follows: \\u2018So, gentlemen, when you come to the question of negligence, you will ask yourselves when you are taking up the question of the negligence of the defendants, their agents and servants, you will-ask yourselves this question, did the agents, servants and employees of the defendants on this occasion observe the care that a man of ordinary prudence and care would have observed under all the circumstances and the conditions .then and there surrounding them, if you will find that they did then the plaintiff cannot recover. If you find, that they did not measure up to the standard of a man of ordinary prudence and care then you would find that they zvere negligent, then take the conduct of the plaintiff and ask yourselves the question, would a man of ordinary prudence and care have acted as you find he acted on this occasion? If you find that he did that then he could not be said to be guilty of negligence, if you find that he did, or left undone anything that a man of ordinary prudence and care would not have done or left undone then you will find and deem him to be guilty of negligence,\\u2019 the error being:\\n\\u201c(a) In instructing the jury that if the-agents and servants of the defendants did not measure up to the standard of a man of ordinary prudence and care the jury should find that the defendants were negligent, his Honor charged on the facts in violation of section 26, article V of the Constitution of 1895.\\n\\u201c(b) His Honor plainly instructed the jury what facts would constitute negligence.\\n\\u201c(c) The agents and servants of the defendants may not have measured up to the standard of a man of ordinary prudence and care and yet in the circumstances of this case acted as careful men should have acted.\\n\\u201c(d) In instructing the jury that in order to determine the question of plaintiff\\u2019s negligence that they should ask themselves the question, would a man of ordinary prudence and care have acted as plaintiff acted on the occasion in question, and if it was found that plaintiff did that, then they could not say that plaintiff was guilty of negligence, his Honor charged on the facts in violation of article V, section 26 of the Constitution of 1895, and told the jury what facts would constitute negligence.\\n\\u201c(e) A prudent and careful man may and frequently does act in a careless and negligent way, and his Honor in instructing the jury in the language complained of in this particular gave the jury an entirely erroneous and illegal test. Instead of giving the jury a definition of 'negligence his Honor instructed them what facts would constitute negligence and told the jury that if it should conclude that plaintiff acted on the occasion as the jury might think a man of ordinary prudence and care would have acted that they could not and must not find plaintiff negligent; whereas, it is submitted, that the usual and customary way that a man of ordinary prudence and care would, perform a certain act is not a conclusive test as to whether due care was exercised therein. It is merely evidence which should go to the'jury along with other evidence in the case leaving it to the jury to determine from all of it whether as a fact' due care was exercised.\\nV. \\u201cIt is respectfully submitted that his Honor ivas in error in instructing the jury as follows, in reference to the negligence of a fellow servant, to wit: \\u2018Now on the subject of that very doctrine there is a different rule and a different law applicable to railroads, different from other parties,\\u2019 and in this connection reading to the jury as applicable to this case article IX of the Constitution of 1895, the error being:\\n\\u201c(a) That in telling the jury that the law of fellow servant as applied to railroads, is different from that which obtains as to other parties was wholly misleading and erroneous when applied to the facts of this case because the 'only principle of law the jury could consider in this case was as to the combined negligence of the master and fellow servant; it being an admitted fact that plaintiff and Freeman were-fellow servants, and that the negligence of Frefeman-if- a proximate cause of plaintiff\\u2019s injury would defeat his 'recovery. Therefore, in telling the jury that a different rule of law applied his Honor confused and misled the jury, as to the point before it for determination,-' '\\u25a0 \\u2022-\\n\\u201c(b) Article IX of the Constitution, which'his Honor read to the jury in nowise changed or'modified-the general, principles of law applicable to the question \\u201cbefore'the jury and bad absolutely no bearing whatever on the question and could only tend to confuse the jury in its deliberation.\\nVI. \\u201cHis Honor committed error in instructing the jury in the language of plaintiff's third request as follows, to wit: \\u201cThat if the jury find as a further fact that the defendants failed and omitted to furnish plaintiff with a blue flag, plaintiff having exercised due diligence in bringing such failure to the attention of his superior officer, and that the plaintiff, notwithstanding such failure on the part of the defendants and such notice on the part of the plaintiff, was instructed by his superior officer to repair the car, as alleged in the complaint, and that the plaintiff, before engaging in inspecting and repairing the same, gave notice to Conductor Partain of his purpose, as alleged in the complaint, and was given assurance by the said conductor that he was through on the yard and that the plaintiff could go to work on the said car without molestation by the said conductor, as alleged in the complaint, and that the plaintiff was injured by the negligent or wilful act of the said conductor, as alleged in the complaint, then the jury will find for the plaintiff.\\u201d I charge }mu that, provided you find that the plaintiff\\u2019s conduct towards Conductor \\u25a0 Partain under all the circumstances was the exercising of due care and was not negligence,\\u2019 the error being:\\n\\u201c(a) In saying \\u2018plaintiff having exercised due diligence in bringing such failure to the attention of his superior officer,\\u2019 his Honor charged on the facts of the case in violation of section 26, article V of the Constitution of 1895.\\n\\u201c(b) The entire request could only be regarded by the jury as an instruction as to the existence of certain facts, to wit, the exercise of due diligence on the part of plaintiff and the giving of notice by plaintiff to the conductor and being assured by the conductor that he was through on the yard and might proceed with the work without molestation, and if not a violation of the strict letter of section 26 and article V of the Constitution is certainly a clear violation of its intent and spirit and within the meaning of its terms a charge on the facts.\\n\\u201c(c) In telling the jury \\u2018I charge you that provided you find that plaintiff\\u2019s conduct towards the conductor was the exercise of due care and not negligence,\\u2019 his Honor assumed as a fact that there was some conversation with plaintiff and the conductor bearing on the material facts of this case and thereby charged on the facts of the case in violation of the constitutional provision in this behalf, section 26, article V.\\nVII. \\u201cIt is respectfully submitted that his Honor committed error in not charging as submitted the defendants\\u2019 first request and in modifying the same as follows, to wit: \\u201cIf you find from the testimony in this case that the plaintiff could by the exercise of due care have secured a blue flag and failed to do so and use it, then I charge you as a matter of law that he cannot recover a verdict at your hands in this case.\\u201d I charge you that, provided the defendants, their agents and servants were not guilty of wilfulness and that wilfulness was the proximate cause of his injury,\\u2019 the error being:\\n\\u201c(a) As modified by his Honor the request was entirely emasculated.\\n\\u201c(b) The request as submitted contains a sound principle of law, to wit, that if plaintiff\\u2019s injury was due to his own negligence that he could not recover, and in modifying this his Honor confused the jury by making it appear that this request was intended to cover contributory negligence by the plaintiff.\\n\\u201c(c) In any view of the matter the modification was wrong, erroneous and misleading, because it is an admitted fact that defendants did move the car, which was a wilful act in the sense that it was a voluntary act on behalf of the defendants. The jury, therefore, were instructed by his Honor that if the car was moved deliberately and of the defendants\\u2019 own volition and intention that plaintiff could recover although it might also appear that his injury was clue to his own negligent conduct in not making use of the blue flag.\\n\\u201c(d) The modification must be construed with reference to the facts of this case and when so considered the effect thereof is to absolutely destroy the proposition of law contained in the request and in effect and law amounts to a refusal to charge the said request.\\nVIII. \\u201cHis Honor, it is respectfully submitted, committed error of law in modifying the second request of the defendants, as follows, to wit: \\u201cIn this case the Supreme Court has held that 'if the plaintiff disregarded the blue flag rule so essential to his own safety as well as the safety of other employees and the general public, when he could have complied with it by reasonable effort on his part, then he is not entitled to recover.\\u2019 And I charge you in this case if it appears from the evidence that the plaintiff could have complied with this rule by reasonable effort on his part and failed to do so that he cannot recover and your verdict must be for the defendant companies.\\u201d I charge you that, provided that you do not find that the defendants, their agents,' servants and employees were guilty of wantonness and wilfulness, and that that wantonness and wilfulness was the proximate cause of the injury to the plaintiff,\\u2019 the error being:\\n\\u201c(a)- That the request contains a sound proposition of law vitally applicable to this case and should have been charged without modifications.\\n\\u201c(b) There was not the slightest evidence of wilfulness or wantonness in the case and the continued iteration and reiteration of this by his Honor to the jury was misleading and impressed upon the minds of the jury the idea of his Honor that there was wilfulness shown by the testimony and deprived the defendants of a fair consideration by the jury of the propositions of law applicable to the case.\\nIX. \\u201cHis Honor committed error in refusing to charge the defendants\\u2019 fifth request as follows, to wit: \\u201c \\u2018If you find in this case from the testimony that the plaintiff failed to afford himself the protection of the blue flag, but relied on Freeman as a substitute for the blue flag rule, he cannot recover.\\u201d I cannot charge you that, I have got to1 modify all these charges. I think these charges must have been based on the ground that I would not submit to you the question of wilfulness; that is, I cannot charge you that proposition as stated because there are other elements that the jury must take into consideration,\\u2019 the error being:\\n\\u201c(a) The request contains a sound proposition of law vitally applicable to this case and the refusal of his Honor to so charge was in effect the direction of a verdict against the defendants and in favor of the plaintiff.\\n\\u201c(b) The charge of his Honor in this behalf deprived the defendants of the defense of negligence of a fellow servant as the proximate cause of the injury, and it is submitted that the testimony fairly considered abundantly establishes the fact that plaintiff\\u2019s injury was due to the negligence of his fellow servant, Freeman, and that plaintiff relied on Freeman as a substitute for the blue flag rule.\\n\\u201c(c) His honor does not undertake to modify this request, but states that he is going to modify all the requests to charge, and states to the jury that there are other elements, which they must take into consideration, and if this language be taken as a modification then it was error in his Honor for the reason that he thereby told the jury that they must consider the question of wilfulness and wantonness in. considering this request and in effect in so doing told the. jury to disregard the request.\\n\\u201c(d) If plaintiff was injured by reason- of his substituting his fellow servant for the protection of the blue flag-then it is submitted that wilfulness could not be and should not be considered by the jury because it would preclude the idea of his injury having been occasioned by any act of the defendants.\\nX. \\u201cIt is respectfully submitted that his Honor committed error in refusing to charge the jury the defendants' request, as follows, to wit: \\u201c \\u2018You are further instructed that if you find that the plaintiff in this case did not observe the blue flag rule and could have done so, but instead relied on. his conversation with Conductor Partain as a substitute for the blue flag rule then he cannot recover.\\u201d I refuse to charge you that,\\u2019 the error being:\\n\\u201c(a) That this request contains a correct proposition of law vitally applicable to this case.\\n\\u201c(b) If plaintiff failed to observe the blue flag rule when he could have done so, but relied on his conversation with the conductor, then as a matter of law he could not be entitled to a verdict, and it was error in his Honor to refuse this request.\\nXI. \\u201cIt was error in his Honor to refuse to charge the jury the defendants\\u2019 seventh request as follows, to wit: \\u201c \\u2018If you find from the evidence as a matter of fact that the plaintiff did tell the conductor that he intended to work under the car and should further find that the conductor negligently caused the car under which the plaintiff was working to be moved to his injury, still plaintiff could not recover if you should further find that by the exercise of reasonable care he could have procured a blue flag and thereby could have given himself the protection of the blue flag rule. In other words, if the plaintiff by the use of reasonable care could have made use of the blue flag as required by the rules, he cannot recover in this case simply because the conductor failed to remember his statement that he would be at work under the car.\\u201d I refuse to charge you that,\\u2019 the error being:\\n\\u201c(a) That the request contains a sound proposition of law applicable to this case. \\u25a0\\n\\u201c(b) In refusing this charge his Honor permitted a recovery on behalf of plaintiff although as a matter of law he \\u25a0was guilty of contributory negligence as the direct and proximate cause of his injury.\\nXII. \\u201cHis Honor committed error of law in refusing to charge defendants\\u2019 eighth request as follows, to wit: \\u201c \\u2018If it is a fact established by the testimony in this case that the plaintiff did not have a blue flag and could not by reasonable effort secure a blue flag, it was his duty in this situation to have advised the conductor that he had no flag, and that in going under the car he could not as a consequence observe the blue flag rule. It was not sufficient for him to have simply told the conductor he expected to work under a car, but he should have gone further and notified the conductor that he was unable to comply with the blue flag rule.\\u201d I refuse to charge you that,\\u2019 the error being:\\n\\u201c(a) That the request contains a sound proposition of law applicable to the case and should have been charged.\\n\\u201c(b) It was the duty of plaintiff if he intended to rely on the conversation with the conductor to have advised the conductor that he was unable to compfy with the blue flag rule.\\nXIII. \\u201cIt was error in his Honor to refuse the defendants\\u2019 ninth request as follows, to wit: \\u201c \\u2018There is no' evidence whatever in this case even tending to establish a waiver of the blue flag rule.\\u201d I refuse tO' charge you that,\\u2019 the error being :\\n\\u201c(a) There is not a particle of evidence in this' entire record tending to show a waiver of the blue flag rule and his Honor should have so instructed the jury.\\nXIV. \\u201cHis Honor committed error in refusing to charge defendants\\u2019 tenth request as follows, to wit: \\u201c \\u2018Counsel for the plaintiff argued that the defendant could waive the blue flag rule and that there was evidence in this case tending to show a waiver of the rule, but I charge you that there is no evidence tending to establish a waiver of this rule in this case.\\u201d I refuse to charge you that,\\u2019 the error being:\\n\\u201c(a) That there was no evidence in this case tending to establish a w\\u00e1iver of the blue flag rule and his Honor in refusing this request permitted the jury to consider a question of this kind, vitally important to the case, upon the mere argument of plaintiff\\u2019s counsel and without any evidence whatever.\\nXV. \\u201cHis Honor committed error in refusing to charge the jury defendants\\u2019 eleventh request as follows, to wit: \\u201c \\u2018The jury are further instructed that the conductor of the freight train, to wit, Conductor Partain, had no power and could not as a matter of law waive the blue flag rule in so far as the plaintiff in this case is concerned.\\u201d I refuse to charge you that,\\u2019 the error being:\\n\\u201c(a) That the mere conductor on a freight train has no right whatever in law to waive a rule of the defendants intended for the protection of employees in an entirely different department of labor and in nowise connected with the said conductor and over whom he had no control whatever.\\n\\u201c(b) The conductor had no right or power to waive the blue flag rule in favor of the plaintiff in this case.\\nXVI. \\u201cHis Honor committed error of law in not charging defendants\\u2019 thirteenth request to charge as follows, to wit: \\u201c T charge you that the rule as to the use of the blue flag cannot be violated by an employee, and if he is injured because he violated it or contributed to his injury by not observing it, he cannot recover.\\u201d I refuse to charge you that,\\u2019 the error being:\\n\\u201c(a) This request contains a correct proposition of law vitally important to this case and should have been charged as given.\\n\\u201c(b) If an employee violates a rule of the company and is injured by reason of his violation thereof or if his failure to observe the rule contributes to his injury then as a matter of law he cannot recover and his Honor should have so charged.\\nXVII. \\u201cHis Honor committed error in refusing defendants\\u2019 fifteenth request to charge, to wit: \\u201c \\u2018I charge you that where there was no blue flag furnished the employee he should have refused to work under a car, which is extra dangerous work, until the blue flag was furnished him, unless in a case of an emergency.\\u201d I refuse to charge you that,\\u2019 the error being:\\n\\u201c(a) That the admitted evidence shows that plaintiff knew it was extra dangerous to go under the car without displaying a blue flag, and the evidence further shows that there was no emergency requiring him to do so. It is, therefore, submitted that plaintiff should have refused to go under the car in violation of the rule.\\n\\u201c(b) Where an employee knows that it is dangerous to violate a rule of the master and there is no emergency which requires him to violate it, if he deliberately does so he cannot recover as a matter of law against the master.\\nXVIII. \\u201cHis Honor committed error of law in not charging defendants\\u2019 sixteenth request as follows, to wit: \\u201c T charge you that the testimony in this c\\u00e1se does not show any emergency justifying the violation of the rule.\\u201d I refuse to charge you that,\\u2019 the error being:\\n\\u201c(a) There is not a particle of testimony in this whole case suggesting any emergency in repairing this car or tending to show any emergency to justify a violation of the blue flag rule, and his Honor should have so instructed the jury as requested.\\n\\u201c(b) Where there is no testimony in a case tending to establish any material fact it is the duty of the Court on request to so instruct the jury.\\nXIX. \\u201cHis Honor committed error in refusing to instruct the jury in the language of plaintiff\\u2019s seventeenth request, as follows, to wit: \\u201c T charge you that in order to recover because a blue flag was not at hand for the use of plaintiff the plaintiff would have to show that at the time he was ordered to do the work he demanded a blue flag for use in the work and the defendants refused to furnish him.\\u201d I refuse to charge you that/ the error being:\\n\\u201c(a) This request contains a sound proposition of law and should have been charged.\\n\\u201c(b) It was the duty imposed on plaintiff to exercise some reasonable effort to procure a blue flag and his Honor should have instructed the jury as requested that it was his duty to demand a flag at the time he was ordered to do the work, and that defendants refused to furnish the same.\\n\\u201c(c) If plaintiff, by the exercise of reasonable care, could have procured a flag it was his duty to have done so, and his failure so to do would not justify his violation of the blue flag rule.\\nXX. \\u201cHis Honor committed error in not charging defendants\\u2019 nineteenth request as follows, to' wit: \\u201c T charge you that if a car repairer or inspector of a railroad company complies with the blue flag rule he gives notice'to every employee of the railroad company not to move the car while he is working under it, and the company is liable for injury to him caused by any of its employees in moving the car. I charge you further that the plaintiff in this case cannot set aside this rule made for his protection by giving verbal notice to one employee, say a conductor, if another employee such as an engineer without such notice took part in moving the car.\\u201d I refuse to'charge you that,\\u2019 the error being:\\n\\u201c(a) This request contains a sound proposition of law applicable to this case.\\n\\u201c(b) Verbal notice to one employee certainly could not be said to imply notice to another employee. If the engineer without notice moved the car to the injury of plaintiff who had not observed the blue flag rule he should not be permitted to recover.\\n\\u201c(cl The blue flag rule was intended to'give notice to every employee of the company not to move the car and the company is certainly liable for an injury caused by moving a car where the rule has been observed, and his Honor should certainly have so instructed the jury, and in failing so to do he left the jury wholly uninstructed as to the true purpose and meaning of the blue flag rule and wholly uninstructed as to the liability of the defendants in cases where an employee had complied with this rule, thereby leaving with the jury the impression that defendant might not be liable even if the blue flag rule had been observed.\\n\\u201c(d) It was important to a proper trial of this case that the jury should clearly understand that if the blue flag rule was observed that the company was absolutely liable \\u2014 that if it was not observed when it could have been that the defendant was ,not liable; that verbal notice to one employee that plaintiff intended to set aside the rule could not possibly be notice to another employee of this fact, and where another employee in the absence of such notice took part in the movement of the car plaintiff should not be permitted to recover.\\nXXI. \\u201cHis Honor committed error in not charging-defendants\\u2019 twentieth request to charge as follows, to wit: \\u201c T charge you that the plaintiff cannot change the blue flag rule by relying on the protection of the conductor because the company not being a party to the change of the rule, unless the conductor has been appointed as a representative of the master to change this rule, of which there is no evidence in this case. If the plaintiff instead of placing the blue flag as required by the rules, relies on the notice given to the conductor he thereby constitutes the conductor his agent for protection, and cannot hold the defendants liable for failure of the conductor to protect him. The conductor in such case does not represent the master so as to give him protection, which protection the company has adequately provided for otherwise by the rule.\\u201d I refuse-to- charge you that,\\u2019 the error being:\\n\\u201c(a) It is respectfully submitted that this request contains a sound proposition of law applicable to this case.\\n\\u201c(b) If plaintiff instead of complying with the rule undertook to rely on the conductor as a protection he certainly in law would constitute the conductor his agent and could not recover for a failure of the conductor to protect him. The conductor in no sense could represent the master for the purpose of waiving the rule or for the purpose of giving him protection in violation of the rule, it being respectfully submitted that the rule is binding on the conductor as well as all other employees and could not be waived without express authority so to do, and there was no evidence in this case pending to establish any such authority.\\n\\u201c(c) Plaintiff certainly could not change the blue flag rule by substituting verbal notice to the conductor, and it was error in his Honor not to so instruct the jury as he was requested to do.\\nXXII. \\u201cHis Honor committed error in not charging the defendants\\u2019 twenty-first request as follows, to wit: \\u201c T charge you that if you find that the plaintiff told the conductor that he was going to work under the car this did not relieve him of the duty to place the blue flags. That the conductor had the right to assume, unless notified to< the contrary, that he would place a blue flag as required by the blue flag rule.\\u201d I refuse to charge you that,\\u2019 it being respectfully submitted:\\n\\u201c(a) That this request contains a sound proposition of law and should have been charged.\\n\\u201c(b) It is submitted that as a matter of law and logic notice to a conductor that a car repairer intends to do some work on a car will not imply notice or knowledge that in doing so he intends to violate the blue flag rule.\\n\\u201c(c) All employees have the right to assume that other employees will observe the rules of the company in the absence of notice to the contrary, and in this case there is not a particle of testimony tending to show that plaintiff told the conductor that'he was not going to observe the rule. All that he claims that he told him was that he was going to work on the car.\\nXXIII. \\u201cIt was error in his Honor to submit to the jury in this case the question of punitive damages, when there was not a particle of testimony in the entire case to indicate anything going to establish wanton or wilful conduct on the part of the defendants or anything to entitle plaintiff in any view of the matter to punitive damages.\\nXXIV. \\u201cIt was error in his Honor not to direct a verdict for the defendants on the cause of action for punitive damages, the error being:\\n\\u201c(a) That there was no testimony tending to establish such cause of action.\\nXXV. \\u201cThe Constitution of South Carolina requires and directs that Judges shall in the trial of jury cases declare the law, that is, that they shall instruct the jury as to the principles of law which shall govern in the trial of the said case. It is respectfully submitted that the charge of his Honor considered as a whole or in parts does not correctly instruct the jury as to the law applicable to this case, but, on the contrary, gave to the jury a wholly incorrect idea as to the law which should govern in the trial of this case.' His Honor refused outright most of the requests of the defendants and so modified the others as to entirely emasculate the same, and iterated and reiterated to the jury the idea of punitive damages when the decision in this case, which was the law of the case, eliminated that question from further consideration, and when the testimony wholly failed to even suggest any consideration of punitive damages or wanton or wilful conduct. His Plonor\\u2019s theory of this case was clearly impressed on the jury, and that theory was that plaintiff was entitled to recover a verdict, both for punitive and actual damages, regardless of the fact that plaintiff violated the blue flag rule, and without regard to the fact that he knew it was dangerous so to do, and without regard to the fact that he admitted having made no effort at the time of under taking the work to procure a blue flag, and regardless of the fact that he admits that he relied on Freeman, his fellow servant, as a substitute for the blue flag rule and his alleged conversation with the conductor, in which it is not even claimed that he told the conductor that he was not going to comply with the rule. His Honor was clearly of the opinion that the mere conversation with the conductor, testified to by the plaintiff of his intention to repair his car, was sufficient in law to give to plaintiff a cause of action, both for actual and punitive damages, and it is respectfully submitted that the entire charge is capable of this construction and this construction only, and in so charging the jury his Honor committed prejudicial error.\\nXXVI. \\u201cHis Honor committed error in submitting to the jury the question of wanton and wilful misconduct of the defendants or either of them because there was no testimony in the entire record tending to establish any wanton or wilful conduct on the part of either defendant.\\nXXVII. \\u201cHis Honor committed error in his refusal to grant a new trial on the first ground submitted, to wit, that there is no testimony whatever tending to support the verdict, the error being:\\n\\u201c(a) There is no testimony in this case, it is respectfully submitted, tending to support the verdict.\\nXXVIII. \\u201cHis Honor committed error in refusing to grant a new trial on the sixth ground submitted for a new trial, to wit: 'Because the evidence is that plaintiff was the author of his own injury in that he knowingly and unnecessarily violated the blue flag rule without the presence of any emergency so to do and without notifying the officers and employees in charge of the train that he intended to violate such rule, which rule was enacted for and vital to his own safety,\\u2019 the error being:\\n\\u201c(a) That there was no emergency whatever requiring plaintiff to do this work in violation of the rule, and the testimony shows that he knowingly and unnecessarily violated the blue flag rule to his injury.\\nXXIX. \\u201cHis Honor committed error in not granting a new trial on the seventh ground submitted, to wit: \\u2018Because the only inference to be drawn from the evidence is that if plaintiff\\u2019s negligence was not the sole cause, it was at least a contributory proximate cause of his injury, in that he violated an important rule, to wit, the blue flag rule, promulgated for and essential to his safety, without notifying the conductor of the train of his intention to.violate such rule,\\u2019 the error being:\\n\\u201c(a) That the entire testimony shows that the plaintiff was guilty of contributory negligence as a proximate cause of his injury.\\nXXX. \\u201cHis Honor committed error in not granting a new trial on the eighth and ninth grounds submitted as follows, to wit: \\u2018In charging the first and second requests to charge and in charging plaintiff\\u2019s third request with the modification as charged.\\u2019\\n\\u201c \\u2018In modifying the 1st, 2d, 3d, 4th and 5th requests of defendants, and in refusing the remaining requests of defendant. It is submitted said requests each contained in themselves correct principles of law applicable to their respective parts of the case as made,\\u2019 the error being:\\n\\u201c(a) In reference to the eighth ground as assigned and specified hereinabove.\\n\\u201c(b) In reference to the ninth ground as specified herein-above and for the further reason that the 1st, 2d, 3d, 4th and 5th requests of the defendants contained sound propositions of law which should have been given to the jury in this case.\\nXXXI. \\u201cHis Honor committed error in holding in his order refusing motion for a new trial that there was some evidence of conscious failure to observe due care; whereas, it is respectfully submitted, that the testimony does not tend to establish such a conclusion of fact.\\n\\u201cIn addition to the foregoing exception made on behalf of both defendants, the defendant, Atlantic Coast Line Railroad Company, takes the following exceptions:\\nXXXII. \\u201cThe Circuit Judge erred in overruling the motion to direct a verdict so far as that company was concerned for the reason that the testimony shows that although plaintiff at times worked for both roads yet at the time of his injury he was working for the Charleston & Western Carolina Railway Company, upon a car of the Charleston & Western Carolina Railwa}*- Company, situated on the siding of the Charleston & Western Carolina Railway Company, and that he was injured by a train of the Charleston & AVestern Carolina Railway Company, operated by the officials and employees of the Charleston & Western Carolina Railway Company, and that the Atlantic Coast Line Railroad Company had no part or responsibility whatever in the infliction of the alleged injury, to the plaintiff and could in no way be held liable therefor under the pleadings and proof.\\nXXXIII. \\u201cThe Circuit Judge erred in refusing the 22d request to charge, viz.: T charge you that in this case you cannot And a verdict against the defendant, the Atlantic Coast Line Railroad Company, for the reason that there is no evidence that the injury received was the result of any negligence on the part of that defendant, its officers, agents or employees.\\u2019 It is submitted there was no evidence that the injury complained of resulted, from any negligence or wrongful act of the Atlantic Coast Line Railroad Company, and that defendant was entitled to have this request charged.\\nXXXIV. \\u201cThe Circuit Judge erred in refusing, the motion of the Atlantic Coast Line Railroad Company to set aside the verdict upon the eighth ground of its motion, viz.: '8th. Because there was no evidence to support the verdict so far as the defendant, Atlantic Coast Line Railroad Company, is concerned.\\u2019 It is submitted there was no evidence to support a verdict against the defendant and, therefore, in the absence of such evidence it was error to refuse to set aside the verdict.as to that defendant.. We earnestly submit that the mere fact that two railroad companies at a junctional point at times employ the services of the same employee or employees and arrange between themselves as to the method or payment of his or their wages cannot in law make one of such railroad companies responsible for negligent or wrongful act of the other railroad company to such employee or employees while such employee is working for such other company.\\nXXXV. \\u201cIn refusing to set aside the verdict as to the Atlantic Coast Line Railroad Company, the Circuit Judge said: \\u2018Especially does counsel for the A. C. L. R. R. Co. insist that there is no testimony to sustain a verdict against it. * * * The Supreme Court has held that in this case there was some evidence tending to show negligence on the part of defendants.\\u2019 We submit the Circuit Judge erred in so holding; that he erred in holding that the Supreme Court had done or could do anything more upon the last appeal in this case than pass upon the specific exceptions and questions raised by them; that he erred in holding' that the separate nonliability of the A. C. L. R. R. Co. was raised by these exceptions or consequently decided on that appeal; that he erred in holding that the question of the liability of the A. C. L. R. R. Co. on appeal'from a nonsuit in one trial can be held as conclusive and decisive of a motion for nonsuit upon a new trial where more or less evidence is or may be introduced; that he erred in holding the question res adjud\\u00edcala when upon a new trial a different question is necessarily presented depending upon the proof offered, and he erred in holding that in this last trial there was any evidence tending to establish liability of the defendant, A. C. L. R. R. Co.\\u201d\\nMessrs. James Peurifoy, W. H. FitzSimons, P. A. Wilcox and T. Barron Grier, for appellants.\\nMr. W. Huger FitzSimons cites: There was no evidence to establish liability of A. C. L. R. R.: 82 S. C. 345.\\nMr. F. Barron Grier\\ncites: Violating a rule of master is contributory negligence: 1 Lab. on M. & S. 948; 88 N. W. 976; 70 S. C. 252; 82 S. C. 548; 11 L. R. A. (N. S.) 413; 85 S. C. 471; 3 Elliott, sec. 1282; 12 Am. R. 263; 32 Am. St. R. 391; 90 S. C. 42; 53 So. 550; 19 S. W. 936; 125 S. W.' 530; 103 S. W. 424. Relying on fellow servant to give notice is negligence: 160 U. S. 438; 1 Am. Neg. R. 503; 11 L. R. A. (N. S.) 416. Court should define negligence: 1 Thomp. on Neg., sec. 1; 61 S. C. 487; 25 S. C. 24; 60 S. C. 168; 87 S. C. 193. Obeying the representative of the master does not relieve of consequences of disregarding rules: 9 C. C. A. 27; 12 C. C. A. 596; 11 Ind. 212; 118 Ind. 578; 76 Tex. 636. Question not supported by any evidence should not be sent to the jury: 1 Lab. on M. & S. 516; 3 Elliott 690; 82 S. C. 550. When servant may disobey rule: 82 S. C. 550. Presence of master does not change rule: 45 Pac. 384; 11 Ohio C. C. 553.\\nMessrs. Holman & Baker and Howell & Gruber, contra.\\nMessrs. Howell & Gruber cite: Duty of servant in emergency: 68 S. C. 55; 82 S. C. 542; 73 S. C. 481; 21 Am. & Eng. R. R. Cas. 509. Both roads are liable: 25 Am. & Eng. R. R. Cas. 446; 31 N. E. 413; 2 Wood on R. R., Minors\\u2019 Ed. 1558. Definition of contributory negligence: 64 S. C. 113; 65 S. C. 194.\\nMr. W. A. Holman\\ncites: The law of fellow servant does not apply between the conductor and plaintiff: 61 S. C. 479. Whether plaintiff could have complied zvith the rule is for the jury: 68 S. C. 56. If there was evidence of wilfulness that issue should have gone to the jury: 85 S. C. 463.\\nOctober 2, 1912.\", \"word_count\": \"12636\", \"char_count\": \"70262\", \"text\": \"The opinion of the Court was delivered by\\nMr. Justice Watts.\\nThis was an action by plaintiff against defendant for personal injuries received, while he was engaged at work, as car repairer in the employ of defendants at Yemassee, South Carolina, on May 25, 190?1.\\nThe cause was first tried, in March, 1911, before Judge Ernest Gary and resulted in a nonsuit. Plaintiff appealed, and the judgment of the Circuit Court was reversed and a new trial ordered. The case is reported in 89 S. C. 525. The cause was then tried before Hon. Thos. S. Sease and a jury, at the November term, 1911, and resulted in a verdict in favor of the plaintiff against the defendants for the sum of thirteen thousand *($13,000) dollars actual damages. At the close of plaintiff's testimony, defendants made a motion for a nonsuit, on the grounds which are set out in the \\\"Case,\\\" and which should be reported in the case. This motion was refused at the conclusion of the testimony of both plaintiff and defendants. The defendants made a motion to direct a verdict on grounds that should be reported in the case and which was refused by the Court. After verdict, motion for a new trial was made and overruled. Defendants then appealed and by thirty-five exceptions allege error on the part of the trial Judge. These exceptions should be set out in the report of the case and may be divided into three (3) heads. First. In refusing to direct a verdict and to grant a new trial on the ground that the evidence showed plaintiff's negligence was the sole cause of his injury or that plaintiff was guilty of contributory negligence, or that he was injured through the negligence of a fellow servant.\\nSecond. Error in the Judge's charge, in charging certain propositions of law and in refusing to charge certain propositions of law as requested.\\nThe exceptions of the defendant, Atlantic Coast Line Railroad Company, which are 32, 33, 34 and 35, raise the exceptions that the testimony nowhere shows any liability on their part for any injury inflicted on the plaintiff.\\nThe law is so well settled in this State, at least, that where there is any testimony at all or where more than one inference can be drawn that the case must go to the jury to be determined by them, and to grant a nonsuit or direct a verdict under such a state of facts would be error, that no citation of authority is necessary. In the former appeal in this case, in 89 S. C. 539, this Court held in reference to the negligence of the plaintiff: \\\"There was no conclusive evidence that the blue flags were not used on this occasion, but, even if there had been, we are unable to agree that a nonsuit was proper without allowing the plaintiff to testify as to the condition of the flags furnished him, for it might have appeared that they were so broken as to be useless, and that he was unable to procure others, etc., etc. We think the evidence required that these issues and the issue of contributory negligence growing out of the rule requiring the use of a blue flag should be submitted to the jury.\\\"\\nThe rule, No. 989, introduced in evidence, provides:\\n\\\"They will make no inspection or repairs to cars, either in trains or where liable to be moved except under the protection of the signal prescribed in Rule 36.\\\" Rule 36 is the blue flag rule, and requires that the workmen shall display a blue flag by day and a blue light at night, and that when a cal-is thus protected it must not be coupled to or moved. The same workmen who place the flag are alone authorized to remove it. Other cars are not allowed to be placed on the same track so as to obstruct the view of the blue signal without first notifying the workman.\\nIt seems to us, that there was sufficient testimony in this case to carry the case to the jury as to -whether or not it was practicable for the plaintiff to obtain a blue flag and whether or not at that time he -was directed by a superior officer to proceed with the work, knowing he had no flag, and, inasmuch, as the object of the blue flag is to give notice and warning to the trains, and if Conductor Partain had actual notice that plaintiff was under this car, and with such notice, ran back against the car and caused his injuries, then the company would be liable.\\nThere was testimony that the plaintiff was 19 years old and had been in the employ of the company about two months and knew the rules in reference to the blue flag. That previous to the occasion of his injury, flags, six in number, had been furnished by the defendant, Atlantic Coast Line Railroad Compan}'-, to the workman and while repairing a car ten or fifteen days before the injury, with two flags displayed as required by rule of the company, a train was run against the car and one of the flags broken and torn to pieces and the other carried away and never seen by plaintiff afterwards. Two days before the injury to plaintiff, while at work with both flags displayed, he was again run into and both flags broken and he narrowly escaped serious injury on that occasion. His request to the chief car inspector to report the conductor for this was refused. Shortly before plaintiff's injury, he was again run into while at work and the remaining two flags broken. There being no flags at all and Rabb having full knowledge of this directed the plaintiff on the morning of the injury to repair a car on the siding. At that time, there was one train oil the yard, a local freight, in charge of Conductor Partain. This train was on the main line, headed for Augusta, then taking water at the tank. Plaintiff, before going to work, told Conductor Partain what he was about to do. The following is the testimony: \\\"After receiving instructions from Mr. Rabb to repair this car, what did you do next ? I met the conductor going to the car. How did you happen to meet him ? I went down the yard to inspect a car after Mr. Rabb sent me to inspect this one, just a minute, and came back. On my way back to get the tools, I met this conductor as he was going to his train to take it to opposite side of main line. I went over and inspected that car and came straight back to Mr. Rabb to get the tools and get Mr. Freeman to help me with this car, and on my way back to the shanty, I met the conductor at about half way between the car and the depot and told him that I had this car to repair and told him what place, and all about the car, showed him the car.\\\"\\nBefore going to work on this car there is evidence to show that the plaintiff placed Freeman, a repairer, to watch for other trains. We find the following testimony: \\\"Did you put out the flag? We had none to put out. I asked you if you put it out. No, sir. When Freeman came out, you went under? Yes, sir. What did you ask him to do for you? I asked him to look out and see if any other trains arrived on the yard he could give the alarm.\\\"\\nLater, we find: \\\"In going to work under the car, had you no blue flag to display? No, sir. What did you rely on for your protection? What I relied on was the conversation I had with the conductor, relying on his not coming back in there. I merely put Mr. Freeman back, you might say, as a second precaution, mostly against other trains that might come in, extras.\\\"\\nHere, we have evidence that plaintiff, notwithstanding the rule requiring the use of flags for his protection, had used them on three different occasions and narrowly escaped death or serious injury, previous to his injury. The flags had failed to accomplish the purpose they were intended to serve and had been destroyed. There was none on hand to use at the time he was actually injured, and he took the extra precaution to notify and warn the conductor of the only train there that he was going to inspect the car and pointed out to the conductor the particular car he intended to inspect, and put out a person to watch for, and warn him against other trains and went to inspect the car under orders of his superior, who was present and gave the orders to him. It was clearly competent for the jury to determine under all of the evidence and circumstances of the case, whether it was the negligence of the defendants which was the proximate cause of plaintiffs injury and whether he, by his acts, was in any manner negligent and contributed to the proximate cause of his injury. It was also for the jury to say, under the testimony as given, whether there was wantonness or a conscious advertent failure on the part of Conductor Partain to observe due care under the particular circumstances of the case. Could the placing of the blue flag have told the conductor more than what the plaintiff had told him? Plaintiff had given him explicit notice of what he intended to do and in less than ten minutes after the notice, the conductor, without any notice to plaintiff, ran his car into him and caused the injuries complained of. Plaintiff not only gave notice to the conductor as to what he intended to do, pointing out the car, but was assured by the conductor that he was going to pull out for Augusta and plaintiff could safely go to work on the car without molestation. Whether the work to be done was an emergency case was for the jury. There was evidence that it was broken down and plaintiff was'ordered to repair it by his superior, who had the right to give the order.. It was his duty to obey. There is testimony that the superior knew the work would be done without the flags, and that plaintiff had made an effort to obtain flags and failed. That he had called for locks to lock switches and failed to get them.\\n\\\"If a master or superior orders an inferior into a situation of danger, the law will not charge him with assumption of risk unless the danger is so glaring that no prudent man would have entered into it.\\\" 14 Eng. Law 357, cited and approved in Mew v. Railway Co., 55 S. C. 102. \\\"Whether the matter of assumption of risk by an employee is to be tested by the law of waiver, Hooper v. R. R., 21 S. C., 541, or the law of negligence, Bussey v. R. R., 52 S. C. 438, 30 S. E. 477, is a question of fact for the jury.\\\" Mew v. Railway Co., 55 S. C. 103, 32 S. E. 828.\\nHis Plonor committed no error in refusing the motion made by the defendants for a nonsuit or to direct a verdict, and the exceptions raising these questions are overruled.\\nAs to the second group of exceptions, which allege error in the Judge's charge, a careful reading of the exceptions and the Judge's charge as a whole, will show that he has committed no error. Every question raised by these exceptions was virtually raised and decided in the case of Carson v. Southern Railway Company, 68 S. C. 55, 46 S. E. 525, in the full, elaborate and able opinion of Chief Justice Pope, and reaffirmed in the cases of Wilson v. Railroad, 73 S. C. 481, 53 S. E. 958; Stevens v. Railroad, 82 S. C. 542, 64 S. E. 601.\\nIn the case of Moore v. St. Louis & P. R. R. Company (Missouri), 21 Am. & Eng. R. R. Cases 509, the pleadings and facts of that case show that it was a case very similar to the case at bar. Dealing with the legal principles involved, the Court, at pages 513-514, say: \\\"The defendant's refused instructions asserted the following general propositions, viz.: That although plaintiff and Kestler were not fellow servants, Kestler ivas not authorized by the company to make the promise alleged to protect plaintiff while under the car, and that notwithstanding such a promise yet plaintiff could not recover if he failed to set out the red flag, as required by the rule, or to set some one to watch for the approach of engines and trains.\\n\\\"It being conceded, as it must be, that the company owed a duty to the men under the car to provide for their safety, can it be that the foreman had no authority in an emergency to use any other means than those adopted by the company \\u2014that the red flag, and nothing but the red flag, was the means he was to employ? If for any reason that would clearly, in a given case, have been insufficient as a warning, can it be possible that the foreman would be restricted to the use of red flags ? Or, if in such case he had had the red. flag set up, and one of the men'was injured in consequence of its insufficiency to give the warning, that the company would not be liable to the injured party?\\n\\\"Has it discharged its duty by simply adopting a means of protection ordinarily sufficient when the person in charge of the work knows that in the particular case it is not a sufficient warning?\\n\\\"If the foreman has authority in such an emergency, that authority results from his general authority to perform the duty of the company in protecting the employees under his control in the performance of a dangerous work for the company, and he was authorized to make the promise to plaintiff for the company, and undertook to set out the red flag in his possession, or to adopt any other means necessary to secure the safety of the men, thereby absolving them from the duty of setting out the flag or setting the watch. As to the latter, there was no proof of a rule requiring one man' to watch while the others worked; and it was in the proof that while the work in question could possibly have been done by one man, it could not be conveniently or promptly done by less than two. It being the duty of the company to provide for the safety of the men while engaged in its dangerous service, if it delegates such authority as to the employment of men and their control and management to an agent, will the law, in the absence of an express stipulation to that effect, declare that such agent is under no obligation and has no power, as the representative of the company, to provide means for the safety of servants whom he sends in a place of danger to work?\\n\\\"If so the duty of the company to provide such security may be easily evaded by having no one on hand to perform it. And by simply adopting reasonable rules, the observance of which will ordinarily afford protection, although in a given instance the observance of such regulation would afford no protection whatever, and tl\\u00ede person representing the company in the direction of the work and the control of the hands knew the fact, such abdication of duty can certainly find no support either in reason or authority.\\\"\\nAs to the contention that the injury was the result of the combined contributory negligence of the plaintiff and the negligence of a fellow servant, Freeman, this Court, in the former decision in this case, said: \\\"If the negligence of Freeman, the fellow servant, was the sole proximate cause, or one of the proximate causes, the negligence of the plaintiff being the other, then the plaintiff could not recover, but if the proximate cause of the injury was the negligence of the defendants combined with the negligence of Freeman, the fellow servant, the plaintiff would not be precluded from recovery. Elms v. Sou. Power Co., 79 S. C. 502, 60 S. E. 1110; Roberts v. Virginia C. C. Co., 81 S. C. 283; 66 S. E. 298. We think the evidence required that these issues and the issues of contributory negligence growing out of the rule requiring the use of a blue flag should be submitted to the jury.\\\"\\nIt will be seen that it was decided in this case, reaffirming the rule as laid down in Elms v. Sou. Power Co., 79 S. C. 502, 60 S. E. 1110, and a long line of decisions, that the plaintiff would not be precluded in recovering if the defendants were negligent, because of the negligence of plaintiff's fellow servant, Freeman, if the negligence of the master, the defendants, combined and commingled with the negligence of such fellow servant. In order to escape liability on the ground of negligence of a fellow servant, it must appear that the master was not negligent at all as to any of the proximate causes of plaintiff's injury. It was for the jury to say under the evidence and what weight it would give to it that the act of the conductor in running his train back and striking the cars on the siding under the circumstances was negligence or not on the part of the defendants.\\nThere was ample testimony to go to the jury on the question of waiver of the blue flag rule, and we will not further discuss the testimony on this line, being content with what has already been said in reference to why they were not used on this occasion. As to these exceptions in reference to the Judge's charge the exceptions are overruled.\\nAs to exceptions 33, 33, 34 and 35, which are the exceptions of the defendant, Atlantic Coast Line Railroad Company, that there is no evidence to sustain the verdict against it on any view of the facts proved, the evidence con.clusively shows that both of the defendants, at the time of plaintiff's injury, owned and jointly operated the yard at Yemassee, South Carolina, a station on the line of both defendant roads, and that plaintiff was employed by both of the defendants to work as car repairer in their yard at Yemassee. There was evidence to show that he was paid by the Atlantic Coast Line Railroad Company; that the flags were furnished by this defendant, through Rabb, the chief car inspector, under whom plaintiff worked. It was not for plaintiff to inquire which road he was working for. It was his duty to obey the reasonable orders given him by his superior in the due course and within the scope of his employment, and he had every reason to assume that his superior would not require him to work for a road that it was not his duty to work for, and it was not expected of him to ascertain whether he was working for one or both roads when he was directed by his superior to work. Under the peculiar facts of the case, it would be difficult for him to determine when he ceased to become the servant of one road and become the servant of the other. As to that, possibly some of the higher officials of the two roads knew what the agreement in reference to this was, but that secret was locked up with them and maybe would not be made known until it was to their interest to divulge it. He took the situation as he found it and obeyed the orders of his superior.\\nThere was some evidence to show that both roads, by some agreement among themselves, jointly used this union yard at Yemassee, and there was sufficient evidence to infer that each furnished their proportionate share of machinery and men necessary to operate the same, and if plaintiff was entitled to recover he had the right to recover against one or both and they can settle among themselves according to their agreement, if they have any. With that plaintiff is not concerned. This view is sustained by the cases of Gulf C. & S. R. R. Co. v. Dorsey (Texas), 25 Am. & Eng. R. R. Cases 446; Vary v. Railroad Co., 42 Iowa 246; Wisconsin Railroad v. Ross, 31 N. E. 413; 2 Wood on Railroads, Minors' Edition, 1558. These exceptions are overruled.\\nAs to the exceptions that his Honor was in error in submitting to the jury' the question of punitive damages: His Honor instructed the jury that they were to find, if at all, separately, the actual and punitive damages and they only found actual damages. So it is immaterial now, whether he was in error in submitting this question or not and this exception is overruled.\\nAfter a careful consideration of all the exceptions, it is the judgment of this Court that the exceptions be overruled.\\nJudgment affirmed.\\nMessrs. Ci-iiee Justice Gary and Justice Hydrick concur.\\nMessrs. Justices Woods and Fraser concur in the result.\"}"
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+"{\"id\": \"3853590\", \"name\": \"Betty J. HANCOCK, Petitioner, v. MID-SOUTH MANAGEMENT CO., INC., Respondent\", \"name_abbreviation\": \"Hancock v. Mid-South Management Co.\", \"decision_date\": \"2009-01-26\", \"docket_number\": \"No. 26587\", \"first_page\": \"326\", \"last_page\": \"332\", \"citations\": \"381 S.C. 326\", \"volume\": \"381\", \"reporter\": \"South Carolina Reports\", \"court\": \"Supreme Court of South Carolina\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T19:18:06.334139+00:00\", \"provenance\": \"CAP\", \"judges\": \"WALLER, PLEICONES, BEATTY, JJ, and Acting Justice JAMES E. MOORE, concur.\", \"parties\": \"Betty J. HANCOCK, Petitioner, v. MID-SOUTH MANAGEMENT CO., INC., Respondent.\", \"head_matter\": \"673 S.E.2d 801\\nBetty J. HANCOCK, Petitioner, v. MID-SOUTH MANAGEMENT CO., INC., Respondent.\\nNo. 26587.\\nSupreme Court of South Carolina.\\nHeard Nov. 5, 2008.\\nDecided Jan. 26, 2009.\\nRehearing Denied March 18, 2009.\\nEugene C. Griffith, Jr., of Rushing & Griffith, and Samuel M. Price, Jr., both of Newberry, for Petitioner.\\nElizabeth M. Dalzell and Kirby D. Shealy, III, both of Baker, Ravenel & Bender, of Columbia, for Respondent.\", \"word_count\": \"1358\", \"char_count\": \"8318\", \"text\": \"Chief Justice TOAL:\\nIn Hancock v. Mid-South Management Co., Inc., the court of appeals affirmed the trial court's order granting summary judgment in favor of Respondent Mid-South Management Company. 370 S.C. 131, 634 S.E.2d 12 (Ct.App.2006). We granted a writ of certiorari to review that decision and now reverse.\\nFactual/Procedural Background\\nPetitioner Betty J. Hancock filed a negligence action against Respondent after she tripped and fell in the parking lot of the office of The Newberry Observer, which is owned by Respondent. Petitioner alleged Respondent was negligent in failing to maintain a safe premises. Respondent moved for summary judgment, and at the hearing, the parties submitted deposition testimony from Petitioner and Petitioner's daughter-in-law (Daughter) and photographs of the parking lot. Although Petitioner could not identify the exact cause of her fall, she testified that she tripped on \\\"a rock or something to that effect,\\\" \\\"something raised up,\\\" and \\\"broken asphalt.\\\" Daughter, who witnessed the fall, testified that Petitioner \\\"tripped on that mess in front of the Observer.\\\" Additionally, Petitioner submitted an affidavit from a former employee who worked at the office of The Newberry Observer which provided that the employees were aware that the parking lot was in disrepair and that they had complained to management regarding the deteriorated state of the parking lot.\\nThe trial court granted summary judgment in favor of Respondent finding that the change in the elevation in the parking lot caused Petitioner's fall, that the change in elevation was not a dangerous condition, and that even if it was a dangerous condition, Respondent had no duty to warn since the elevation change was an open and obvious condition. The court of appeals affirmed the trial court's ruling.\\nThis Court granted certiorari to review the court of appeals' decision, and Petitioner presents the following issue for review:\\nDid the court of appeals err in affirming the circuit court's decision granting summary judgment?\\nStandard op Review\\nSummary judgment is appropriate where there is no genuine issue of material fact and it is clear the moving party is entitled to a judgment as a matter of law. Rule 56(c), SCRCP. In determining whether any triable issues of fact exist, the evidence and all inferences which can be reasonably drawn from the evidence must be viewed in the light most favorable to the nonmoving party. Koester v. Carolina Rental Ctr., 313 S.C. 490, 493, 443 S.E.2d 392, 394 (1994).\\nLaw/Analysis\\nWe first address Respondent's argument that Petitioner must present more than a mere scintilla of evidence to withstand a motion for summary judgment. The rule followed in the federal court system provides that \\\"a 'mere scintilla of evidence' is not sufficient to withstand the challenge.\\\" Rogers v. Norfolk Southern Corp., 356 S.C. 85, 92, 588 S.E.2d 87, 90 (2003), quoting Crinkley v. Holiday Inns, 844 F.2d 156, 160 (4th Cir.1988). We recognize that the court of appeals has been somewhat inconsistent on whether a mere scintilla of evidence will overcome a motion for summary judgment. This Court, however, has consistently held that where the federal standard applies or where a heightened burden of proof is required, there must be more than a scintilla of evidence in order to defeat a motion for summary judgment. Accordingly, we hold that in cases applying the preponderance of the evidence burden of proof, the non-moving party is only required to submit a mere scintilla of evidence in order to withstand a motion for summary judgment. However, in cases requiring a heightened burden of proof or in cases applying federal law, we hold that the non-moving party must submit more than a mere scintilla of evidence to withstand a motion for summary judgment.\\nTurning to the merits of the case, although the operator of a parking lot is not an insurer of the safety of those who use the lot, reasonable care must be used by the operator to keep the premises used by invitees in a reasonably safe condition. Henderson v. St. Francis Community Hosp., 303 S.C. 177, 180, 399 S.E.2d 767, 768 (1990). However, a possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness. Callander v. Charleston Doughnut Corp., 305 S.C. 123, 126, 406 S.E.2d 361, 362 (1991), adopting Restatement (Second) of Torts 343A, Known or Obvious Dangers (1965).\\nIn our view, the court of appeals erred in affirming the trial court's grant of summary judgment. Petitioner's testimony, Daughter's testimony, and the former employee's affidavit showed that the parking lot was in a state of disrepair. Thus, taken in a light most favorable to Petitioner, evidence shows that Respondent knew or should have known that a dangerous condition existed on its premises and that invitees would have to encounter this condition. See Henderson, 303 S.C. at 180, 399 S.E.2d at 769 (reversing the trial court's grant of a JNOV motion because the plaintiff presented evidence that a hospital failed to keep its parking lot reasonably safe).\\nFurthermore, the court of appeals erred in affirming the grant of summary judgment based on the finding that even if the parking lot contained a dangerous condition it was open and obvious. While a parking lot's state of disrepair may be considered open and obvious, a jury could determine that Respondent should have anticipated that such a condition may cause an invitee to fall and injure themselves. See Creech v. South Carolina Wildlife and Marine Resources Dept., 328 S.C. 24, 491 S.E.2d 571 (1997) (holding that a dock without a guard rail on one side was an open and obvious condition, but that the defendant should have anticipated the harm); Callan der, 305 S.C. at 126, 406 S.E.2d at 363 (holding that although a missing seat on a stool was an open and obvious condition, the owner should have anticipated the harm).\\nAccordingly, we hold the that the court of appeals erred in affirming the trial courts grant of summary judgment because a genuine issue of material facts exists regarding whether Petitioners injuries resulted from a dangerous condition and, if so, whether Respondent should have anticipated this type of harm.\\nConclusion\\nFor the foregoing reasons, we reverse the decision of the court of appeals.\\nWALLER, PLEICONES, BEATTY, JJ, and Acting Justice JAMES E. MOORE, concur.\\n. In Anders v. South Carolina Farm Bureau Mut. Ins. Co., the court of appeals stated that \\\"[a]t the summary judgment stage of the proceedings, it [is] only necessary for the [nonmoving party] to submit a scintilla of evidence warranting determination by a jury.\\\" 307 S.C. 371, 375, 415 S.E.2d 406, 408 (Ct.App.1992). However, the court of appeals has also declared that [t]he existence of a mere scintilla of evidence in support of the nonmoving party's position is not sufficient to overcome a motion for summary judgment. Shelton v. LS K, Inc., 374 S.C. 294, 297, 648 S.E.2d 307, 308 (Ct.App.2007); see also Bravis v. Dunbar, 316 S.C. 263, 265, 449 S.E.2d 495, 496 (Ct.App.1994).\\n. See Russell v. Wachovia Bank, N.A., 353 S.C. 208, 578 S.E.2d 329 (2003) (applying the unmistakable and convincing evidence standard in an undue influence case); Whaley v. CSX Transp., Inc., 362 S.C. 456, 609 S.E.2d 286 (2005) (applying the federal heightened standard in a Federal Employers Liability Act suit); and Fleming v. Rose, 350 S.C. 488, 567 S.E.2d 857 (2002) (applying the clear and convincing standard of proof in a libel action brought by a public figure).\\n. We note that this appeal does not depend on whether a mere scintilla of evidence is sufficient to defeat a motion for summary judgment because Petitioner has presented more than a scintilla of evidence.\"}"
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+"{\"id\": \"3876907\", \"name\": \"The STATE, Respondent, v. Rodney L. GALIMORE, Appellant\", \"name_abbreviation\": \"State v. Galimore\", \"decision_date\": \"2012-01-25\", \"docket_number\": \"No. 4934\", \"first_page\": \"471\", \"last_page\": \"478\", \"citations\": \"396 S.C. 471\", \"volume\": \"396\", \"reporter\": \"South Carolina Reports\", \"court\": \"South Carolina Court of Appeals\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T23:57:29.371105+00:00\", \"provenance\": \"CAP\", \"judges\": \"HUFF and PIEPER, JJ., concur.\", \"parties\": \"The STATE, Respondent, v. Rodney L. GALIMORE, Appellant.\", \"head_matter\": \"721 S.E.2d 475\\nThe STATE, Respondent, v. Rodney L. GALIMORE, Appellant.\\nNo. 4934.\\nCourt of Appeals of South Carolina.\\nHeard Nov. 17, 2011.\\nDecided Jan. 25, 2012.\\nChief Appellate Defender Robert M. Dudek and Michael J. Anzelmo, both of Columbia, for Appellant.\\nAttorney General Alan Wilson, Chief Deputy Attorney General John McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General Christina J. Catoe, all of Columbia; and Solicitor Isaac McDuffie Ston, III, of Beaufort, for Respondent.\", \"word_count\": \"1769\", \"char_count\": \"10592\", \"text\": \"LOCKEMY, J.\\nIn this criminal action resulting from a vehicular accident, Rodney Galimore contends the trial court erred in (1) denying his motion for a directed verdict on the charge of felony DUI; (2) denying his motion for a directed verdict on the charge of child endangerment; and (3) granting the State a continuance for three indictments after quashing one indictment for felony DUI. We affirm.\\nFACTS\\nGalimore was indicted during the September 20, 2007 term of the Beaufort County Grand Jury (Grand Jury) on the charges of reckless homicide, driving under suspension, child endangerment, and felony DUI. A jury was selected for trial of these indictments on November 17, 2008. On November 18, 2008, Galimore raised a motion to quash the indictment on the charge of felony DUI, arguing the State failed to identify a violation of a traffic offense. The trial court ruled the State had failed to allege a specific act \\\"forbidden by law,\\\" which is an element of felony DUI, and therefore, it quashed the indictment. The State then made a motion for a continuance on the remaining indictments. Galimore objected to the mo tion, stating the case dated back to August 17, 2007, and the indictment was issued in September of 2007. The trial court granted the State's motion for a continuance on the three indictments, finding Galimore had the previous year-and-a-half to question the sufficiency of the indictment for felony DUI.\\nGalimore was re-indicted on November 20, 2008, by the Grand Jury for felony DUI, with the indictment alleging Galimore \\\"failed to drive on the right side of the roadway,\\\" in violation of section 56-5-1810 of the South Carolina Code. The case was brought before a jury on December 8, 2008. At the close of evidence, Galimore made motions for directed verdicts on the charges of felony DUI and child endangerment, arguing the State presented no evidence that Galimore acted in a way \\\"forbidden by law.\\\" The trial court denied Galimore's motions. The jury found Galimore guilty on all four charges. This appeal followed.\\nISSUES ON APPEAL\\n1. Did the trial court err in denying Galimore's motion for a directed verdict on the charge of felony DUI when Galimore contends the State presented no evidence he committed an act prohibited by law or failed to observe a duty imposed by law?\\n2. Did the trial court err in denying Galimore's motion for a directed verdict on the charge of child endangerment when the charge was based upon the violation of the felony DUI statute, a charge on which Galimore argues he was entitled to a directed verdict?\\n3. Did the trial court err in granting the State a continuance after quashing the indictment for felony DUI when Galimore contends it incorrectly reasoned he should have had a hearing on his motion earlier?\\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). Thus, an appellate court is bound by the trial court's factual findings unless they are clearly erroneous. Id.\\nLAW/ANALYSIS\\nI. Directed verdict motion on felony DUI\\nGalimore contends the trial court erred in denying his motion for a directed verdict on the charge of felony DUI. Specifically, Galimore argues the police officer testified Galimore made a legal turn-around. Thus, the State failed to prove an element of felony DUI because they did not present any evidence Galimore committed an act prohibited by law or failed to observe a duty imposed by the law. We disagree.\\n\\\"When ruling on a motion for a directed verdict, the trial court is concerned with the existence or nonexistence of evidence, not its weight.\\\" State v. Weston, 367 S.C. 279, 292, 625 S.E.2d 641, 648 (2006). When reviewing a denial of a directed verdict, an appellate court views the evidence and all reasonable inferences in the light most favorable to the State. Id. \\\"If there is any direct evidence or any substantial circumstantial evidence reasonably tending to prove the guilt of the accused, this [c]ourt must find the case was properly submitted to the jury.\\\" Id. at 292-93, 625 S.E.2d at 648. The trial court should grant a directed verdict when the evidence merely raises a suspicion that the accused is guilty. State v. Hernandez, 382 S.C. 620, 625-26, 677 S.E.2d 603, 605-06 (2009). A defendant is entitled to a directed verdict when the State fails to produce evidence of the offense charged. State v. Ladner, 373 S.C. 103, 120, 644 S.E.2d 684, 693 (2007).\\nHere, the indictment for felony DUI states Galimore \\\"failed to drive on the right side of the roadway pursuant to \\u00a7 56-5-1810.... \\\" Section 56-5-1810 of the South Carolina Code states:\\n(a) Upon all roadways of sufficient width a vehicle shall be driven upon the right half of the roadway except as follows: (1) When overtaking and passing another vehicle proceeding in the same direction under the rules governing such movement; (2) When an obstruction exists making it necessary to drive to the left of the center of the highway. Any person so doing shall yield the right-of-way to all vehicles traveling in the proper direction upon the unobstructed portion of the highway within such distance so as not to constitute an immediate hazard; (3) Upon a roadway divid ed into three marked lanes for traffic under the rules applicable thereon; or (4) Upon a roadway restricted to one-way traffic.\\n(b) Upon all roadways any vehicle proceeding at less than the normal speed of traffic at the time and place and under the conditions then existing shall be driven in the right-hand lane then available for traffic or as close as practicable to the right-hand curb or edge of the roadway, except when overtaking and passing another vehicle proceeding in the same direction or when preparing for a left turn at an intersection or into a private road or driveway.\\n(c) Upon any roadway having four or more lanes for moving traffic and providing for two-way movement of traffic, no vehicle shall be driven to the left of the center line of the roadway, except when authorized by official traffic-control devices designating certain lanes to the left side of the center of the roadway for use by traffic not otherwise permitted to use such lanes, or except as permitted under item 2 of subsection (a). This subsection shall not be construed as prohibiting the crossing of the center line in making a left turn into or from an alley, private road or driveway.\\nS.C.CodeAnn.\\u00a7 56-5-1810 (2006)\\nTrooper Nick Sprouse testified many times to evidence supporting that indictment. He explained at length about why debris found in the road was important to show Galimore failed to drive on the right side of the roadway. Sprouse specifically stated, \\\"Here's your pool of sand and debris and as you can see the tire mark that goes out it never established the correct lane.\\\" He then stated on cross-examination that the evidence at the scene supports the allegation that Galimore never drove in the proper lane after executing his turnaround. In looking at the record and all reasonable inferences in the light most favorable to the State, we find evidence existed for the jury to weigh whether Galimore violated section 56-5-1810, thus supporting a charge of felony DUI. Accordingly, we affirm the decision of the trial court.\\nII. Directed verdict on child endangerment charge\\nGalimore argues the trial court erred in denying his motion for a directed verdict on the charge of child endangerment. He specifically contends that because the charge of child endangerment is premised upon his felony DUI charge, and his motion for a directed verdict on the felony DUI charge should have been granted, his motion for a directed verdict on the child endangerment charge should have been granted as well. We disagree.\\nSince we find evidence existed for the jury to weigh whether Galimore violated section 56-5-1810, thus supporting a charge of felony DUI, we also find evidence existed for the jury to weigh the charge of child endangerment. Therefore, we affirm the decision of the trial court as to the denial of a directed verdict on the child endangerment charge.\\nIII. State's motion for continuance\\nGalimore contends the trial court erred in granting the State's motion for a continuance on the remaining three charges after quashing his indictment for felony DUI. We disagree.\\n\\\" 'The granting of a motion for a continuance is within the sound discretion of the trial court and will not be disturbed absent a clear showing of an abuse of discretion.' \\\" State v. Geer, 391 S.C. 179, 189, 705 S.E.2d 441, 447 (Ct.App. 2010) (quoting State v. Yarborough, 363 S.C. 260, 266, 609 S.E.2d 592, 595 (Ct.App.2005)). \\\" 'An abuse of discretion arises from an error of law or a factual conclusion that is without evidentiary support.' \\\" Id. (quoting State v. Irick, 344 S.C. 460, 464, 545 S.E.2d 282, 284 (2001)); see also State v. Funderburk, 367 S.C. 236, 239, 625 S.E.2d 248, 249-50 (Ct.App.2006) (\\\"An abuse of discretion occurs when the trial court's ruling is based on an error of law.\\\"). Even if there was no evidentiary support, \\\" '[i]n order for an error to warrant reversal, the error must result in prejudice to the appellant.' \\\" Geer, 391 S.C. at 190, 705 S.E.2d at 447 (quoting State v. Preslar, 364 S.C. 466, 473, 613 S.E.2d 381, 385 (Ct.App.2005)); see also State v. Wyatt, 317 S.C. 370, 372-73, 453 S.E.2d 890, 891-92 (1995) (stating that error without prejudice does not warrant reversal).\\nHere, the trial court explained its reasoning behind granting the State's motion for a continuance, stating it felt Galimore was \\\"the architect of the problem that [it] had by making the motion [that day].\\\" The trial was held approximately three weeks after the continuance was granted. Considering the high degree of deference this court gives the trial court in granting a motion for continuance, we find the trial court was within its discretion in this instance. Accordingly, we affirm the trial court.\\nCONCLUSION\\nBased on the foregoing reasons, the trial court's decision is\\nAFFIRMED.\\nHUFF and PIEPER, JJ., concur.\"}"
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@@ -0,0 +1 @@
+"{\"id\": \"3901358\", \"name\": \"Giles Loane v. George Tindall\", \"name_abbreviation\": \"Loane v. Tindall\", \"decision_date\": \"1714-10-02\", \"docket_number\": \"\", \"first_page\": \"97\", \"last_page\": \"98\", \"citations\": \"1 Rec. Co. Ch. (S.C.) 97\", \"volume\": \"1\", \"reporter\": \"Records of the court of Chancery of South Carolina, 1671-1779\", \"court\": \"Court of Chancery of South Carolina\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T18:27:32.248499+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Giles Loane v. George Tindall\", \"head_matter\": \"Giles Loane v. George Tindall\\n[South Carolina Count(y) Berks (ley)\\nFiled October 2d 1714 (Endorsed: Declaration)]\\nGeo Rodd pro Quer\", \"word_count\": \"439\", \"char_count\": \"2519\", \"text\": \"George Tindall Carpenter was Attached to Answer Giles Loane Master of the ship Ludlow of a plea that he do render him two hundred pounds Current mony of the Province aforesaid which to him he owes and unjustly de-taines and Whereupon the said Giles Loane by George Rodd his Attorney Saith that Whereas the aforesaid George the two and twentieth day of September in the thirteenth yeare of her Majesties reign Annoque Dom 1714 at Charles Towne in the Province aforesaid and within the Jurisdiction of this Court by his certaine writing Obligatory sealed with the seale of the said George did acknowledge himselfe to be held and firmly bound to the said Giles in the aforesaid sume of two hundred pounds to be paid to the said Giles when he should be thereunto required Yet the aforesaid George Tindall (tho Often requested) the aforesaid sume of two hundred pounds to him the said Giles hath not paid but the same to him to render hath refused and doth still refuse to the dammage of the said Giles of ten pounds. And thereupon he brings his suit etca And brings here into Court the writing Obligatorie aforesaid which the debt aforesaid doth Testifie in form aforesaid whose date is the day and yeare etca.\\n[On a printed form is the bond for \\u00a3200, from George Tindell to Giles Loane, September 22, 1714; the condition being that Tindall should abide by and perform the arbitrament of the Honorable Robert Daniell concerning a certain action then depending in the Court of Common Pleas. Signed by George Tindall in the presence of J. Robinson and Geo. Evans.\\nEnclosed is the plea of Tindall by his attorney, which \\\"prayes Oyer of the writing obligatory\\\" and that the action should not be maintained because Daniell, after the making of the writing obligatory and before September 23, \\\"did not Make any award arbitrament\\\". Signed by J. Robinson. No date.\\n.Also enclosed is a warrant filed October 2, 1714, to attach the goods and chattels of George Tindall, so as to compel\\u00ed him to appear at court to answer a plea of debt, dated October 6, 17x4, \\\"Witness our Judge at Charles Town\\\", signed \\\"Robt Daniell J\\\"; and on the same sheet a warrant to attach the body of George Tindall, dated October 6, sigxxed \\\"Robt Daniell J\\\", and endorsed: \\\"Cepi Corpus the second Day of October X7X4 per Joseph Holbeatch Provost marshall Att November Court X714 Stopped by an Injunction No. 943. Rodd. X714\\\"]\"}"
\ No newline at end of file
diff --git a/sc/4036140.json b/sc/4036140.json
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--- /dev/null
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+"{\"id\": \"4036140\", \"name\": \"In the Matter of William Glenn ROGERS, Jr., Respondent\", \"name_abbreviation\": \"In re Rogers\", \"decision_date\": \"2007-08-17\", \"docket_number\": \"\", \"first_page\": \"58\", \"last_page\": \"60\", \"citations\": \"375 S.C. 58\", \"volume\": \"375\", \"reporter\": \"South Carolina Reports\", \"court\": \"Supreme Court of South Carolina\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T19:11:52.255852+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In the Matter of William Glenn ROGERS, Jr., Respondent.\", \"head_matter\": \"650 S.E.2d 463\\nIn the Matter of William Glenn ROGERS, Jr., Respondent.\\nSupreme Court of South Carolina.\\nAug. 17, 2007.\", \"word_count\": \"423\", \"char_count\": \"2621\", \"text\": \"ORDER\\nThe Office of Disciplinary Counsel has filed a petition asking this Court to place respondent on interim suspension pursuant to Rule 17(c), RLDE, Rule 413, SCACR, and seeking the appointment of an attorney to protect respondent's clients' interests pursuant to Rule 31, RLDE, Rule 413, SCACR.\\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 Dennis- N. Cannon, Jr., Esquire, is hereby appointed to assume responsibility for respondent's client files, trust account(s), escrow aceount(s), operating account(s), and any other law office account(s) respondent may maintain. Mr. Cannon shall take action as required by Rule 31, RLDE, Rule 413, SCACR, to protect the interests of respondent's clients. Mr. Cannon 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.\\nMr. Cannon shall immediately turn over files relating to cases in which respondent provided representation as part of his duties as an employee of the Public Defender Corporation in Kershaw County to the Public Defender Corporation. For any of these files that involve pending matters, the Public Defender Corporation shall immediately assign these cases to other attorneys, notify the clients, and insure that a new attorney is substituted as counsel of record in the matter. Mr. Cannon shall not be required to give any notice to clients whose files are turned over to the Public Defender Corporation.\\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 Dennis N. Cannon, Jr., Esquire, has 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 Dennis N. Cannon, Jr., Esquire, has been duly appointed by this Court and has the authority to receive respondent's mail and the authority to direct that respondent's mail be delivered to Mr. Cannon's office.\\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/Jean H. Toal, C.J.\\nFOR THE COURT\"}"
\ No newline at end of file
diff --git a/sc/4080082.json b/sc/4080082.json
new file mode 100644
index 0000000000000000000000000000000000000000..b44cd85957604dc14a5dce9cc54e0a8a4034b42e
--- /dev/null
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+"{\"id\": \"4080082\", \"name\": \"Maria T. CURIEL and Martin L. Curiel, Respondents, v. HAMPTON COUNTY E.M.S., Petitioner\", \"name_abbreviation\": \"Curiel v. Hampton County E.M.S.\", \"decision_date\": \"2015-02-11\", \"docket_number\": \"Appellate Case No. 2013-000391; No. 27496\", \"first_page\": \"426\", \"last_page\": \"427\", \"citations\": \"411 S.C. 426\", \"volume\": \"411\", \"reporter\": \"South Carolina Reports\", \"court\": \"Supreme Court of South Carolina\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T21:13:33.810068+00:00\", \"provenance\": \"CAP\", \"judges\": \"TOAL, C.J., PLEICONES, BEATTY, KITTREDGE and HEARN, JJ., concur.\", \"parties\": \"Maria T. CURIEL and Martin L. Curiel, Respondents, v. HAMPTON COUNTY E.M.S., Petitioner.\", \"head_matter\": \"768 S.E.2d 669\\nMaria T. CURIEL and Martin L. Curiel, Respondents, v. HAMPTON COUNTY E.M.S., Petitioner.\\nAppellate Case No. 2013-000391.\\nNo. 27496.\\nSupreme Court of South Carolina.\\nHeard Jan. 15, 2015.\\nDecided Feb. 11, 2015.\\nE. Mitchell Griffith and Mary E. Sharp, both of Griffith, Sadler & Sharp, P.A., of Beaufort, for Petitioner.\\nJohn S. Nichols, of Bluestein, Nichols, Thompson & Delgado, LLC, of Columbia, and H. Woodrow Gooding and Mark B. Tinsley, both of Gooding & Gooding, P.A., of Allendale, for Respondents.\", \"word_count\": \"126\", \"char_count\": \"825\", \"text\": \"PER CURIAM.\\nWe granted certiorari to review the Court of Appeals' decision in Curiel v. Hampton County E.M.S., 401 S.C. 646, 737 S.E.2d 854 (Ct.App.2012). We now dismiss the writ as improvidently granted.\\nDISMISSED AS IMPROVIDENTLY GRANTED.\\nTOAL, C.J., PLEICONES, BEATTY, KITTREDGE and HEARN, JJ., concur.\"}"
\ No newline at end of file
diff --git a/sc/4185928.json b/sc/4185928.json
new file mode 100644
index 0000000000000000000000000000000000000000..8b1d070f35ab69488685b26f41d6a15186019dbe
--- /dev/null
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+"{\"id\": \"4185928\", \"name\": \"In the Matter of John Michael BOSNAK, Respondent\", \"name_abbreviation\": \"In re Bosnak\", \"decision_date\": \"2016-02-02\", \"docket_number\": \"Appellate Case Nos. 2016-000183, 2016-000184\", \"first_page\": \"332\", \"last_page\": \"333\", \"citations\": \"415 S.C. 332\", \"volume\": \"415\", \"reporter\": \"South Carolina Reports\", \"court\": \"Supreme Court of South Carolina\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-11T00:41:02.235485+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In the Matter of John Michael BOSNAK, Respondent.\", \"head_matter\": \"782 S.E.2d 123\\nIn the Matter of John Michael BOSNAK, Respondent.\\nAppellate Case Nos. 2016-000183, 2016-000184.\\nSupreme Court of South Carolina.\\nFeb. 2, 2016.\", \"word_count\": \"339\", \"char_count\": \"2175\", \"text\": \"ORDER\\nThe Office of Disciplinary Counsel asks this Court to place respondent on interim suspension pursuant to Rule 17(c) of the Rules for Lawyer Disciplinary Enforcement (RLDE) contained in Rule 413 of the South Carolina Appellate Court Rules (SCACR). The petition also seeks appointment of the Receiver to protect the interests of respondent's clients pursuant to Rule 31, RLDE, Rule 413, SCACR.\\nIT IS ORDERED that respondent's license to practice law in this state is suspended until further order of this Court.\\nIT IS FURTHER ORDERED that Peyre Thomas Lump-kin, Esquire, Receiver, is hereby appointed to assume responsibility for respondent's client files, trust account(s), escrow account(s), operating account(s), and any other law office accounts respondent may maintain. Mr. Lumpkin shall take action as required by Rule 31, RLDE, Rule 413, SCACR, to protect the interests of respondent's clients. Mr. Lumpkin may make disbursements from respondent's trust account(s), escrow account(s), 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 Peyre Thomas Lumpkin, Esquire, Receiver, has 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 Peyre Thomas Lumpkin, Esquire, Receiver, has been duly appointed by this Court and has the authority to receive respondent's mail and the authority to direct that respondent's mail be delivered to Mr. Lumpkin's office.\\nMr. Lumpkin's appointment shall be for a period of no longer than nine months unless an extension of the period of appointment is requested.\\ns/Costa M. Pleicones, C.J.\"}"
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diff --git a/sc/4239479.json b/sc/4239479.json
new file mode 100644
index 0000000000000000000000000000000000000000..afdc3dc15aad4d00ffbd0bce776b9ec60fe984d2
--- /dev/null
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+"{\"id\": \"4239479\", \"name\": \"ASHLEY II OF CHARLESTON, L.L.C., Plaintiff, v. PCS NITROGEN, INC., Defendant-Third-Party Plaintiff, v. Ross Development Corporation; Koninklijke DSM N.V.; DSM Chemicals of North America, Inc; James H. Holcombe; J. Holcombe Enterprises, L.P.; J. Henry Fair, Jr.; Allwaste Tank Cleaning, Inc.; Robin Hood Container Express; and the City of Charleston, Third-Party Defendants\", \"name_abbreviation\": \"Ashley II of Charleston, L.L.C. v. PCS Nitrogen, Inc.\", \"decision_date\": \"2014-07-23\", \"docket_number\": \"Appellate Case No. 2013-001766; No. 27420\", \"first_page\": \"487\", \"last_page\": \"493\", \"citations\": \"409 S.C. 487\", \"volume\": \"409\", \"reporter\": \"South Carolina Reports\", \"court\": \"Supreme Court of South Carolina\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-11T01:51:29.412503+00:00\", \"provenance\": \"CAP\", \"judges\": \"TOAL, C.J., PLEICONES, BEATTY, JJ., and Acting Justice Eugene C. Griffith, Jr., concur.\", \"parties\": \"ASHLEY II OF CHARLESTON, L.L.C., Plaintiff, v. PCS NITROGEN, INC., Defendant-Third-Party Plaintiff, v. Ross Development Corporation; Koninklijke DSM N.V.; DSM Chemicals of North America, Inc; James H. Holcombe; J. Holcombe Enterprises, L.P.; J. Henry Fair, Jr.; Allwaste Tank Cleaning, Inc.; Robin Hood Container Express; and the City of Charleston, Third-Party Defendants.\", \"head_matter\": \"763 S.E.2d 19\\nASHLEY II OF CHARLESTON, L.L.C., Plaintiff, v. PCS NITROGEN, INC., Defendant-Third-Party Plaintiff, v. Ross Development Corporation; Koninklijke DSM N.V.; DSM Chemicals of North America, Inc; James H. Holcombe; J. Holcombe Enterprises, L.P.; J. Henry Fair, Jr.; Allwaste Tank Cleaning, Inc.; Robin Hood Container Express; and the City of Charleston, Third-Party Defendants.\\nAppellate Case No. 2013-001766.\\nNo. 27420.\\nSupreme Court of South Carolina.\\nHeard March 4, 2014.\\nDecided July 23, 2014.\\nRehearing Denied Sept. 25, 2014.\\nWm. Howell Morrison, of Haynsworth Sinkler Boyd, P.A., of Charleston, John B. Williams, of Cozen O\\u2019Connor, of Washington, D.C.; and Sandra Kaczmarczyk, of Alton Associates PLLC, of Washington, D.C., for Defendant/Third-Party Plaintiff.\\nG. Trenholm Walker, and Daniel S. \\u201cChip\\u201d McQueeney, Jr., both of Pratt-Thomas Walker, P.A., of Charleston; and T. McRoy Shelley, III, of Rogers Townsend & Thomas, PC, of Columbia, for Third-Party Defendant.\", \"word_count\": \"1751\", \"char_count\": \"11500\", \"text\": \"Justice KITTREDGE.\\nWe certified the following question from the United States District Court for the District of South Carolina:\\nDoes the rule that a contract of indemnity will not be construed to indemnify the indemnitee against losses resulting from its own negligent acts, unless such intention is expressed in clear and unequivocal terms, apply when the indemnitee seeks contractual indemnification for costs and expenses resulting in part from its own strict liability acts?\\nIn the context of the underlying claim in federal court, we answer the certified question, \\\"no.\\\"\\nI.\\nCentral to this certified question is the operation of a fertilizer-manufacturing site (Site) in Charleston, South Carolina, that spanned approximately forty-three acres, and was owned at various times by the parties. In 1906, Ross Development Corp. purchased the Site and operated a fertilizer manufacturing facility until 1966. The fertilizer manufacturing process led to arsenic, lead, and acid contamination at the Site.\\nIn 1966, Ross sold the Site to PCS Nitrogen, Inc. The purchase agreement included an indemnity provision, which stated: \\\"[Ross] agrees to indemnify and hold harmless [PCS] in respect to all acts, suits, demands, assessments, pr[o]ce[e]dings and cost and expenses resulting from any acts or omission[s] of [Ross] occurring prior to the closing date.... \\\"\\nDuring the approximately twenty years PCS owned the site, it contributed to the environmental contamination by continuing to manufacture fertilizer and disturbing the contaminated soil during various demolition activities. In 2003, Ashley II of Charleston, Inc. (Ashley II) purchased 27.62 acres of the Site. Since that time, Ashley II has incurred substantial costs in remediating the environmental contamination.\\nIn July 2008, Ashley II filed a complaint against PCS seeking a declaration of joint and several liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) due to costs of the environmental cleanup at the Site. PCS asserted federal statutory contribution claims against Ross and others, contending those named were also liable for environmental cleanup costs. Additionally, PCS asserted a third-party indemnification claim against Ross based on the indemnity provision in the 1966 purchase agreement, seeking indemnification for attorney's fees, costs, and litigation expenses incurred in establishing that Ross contributed to the contamination.\\nAfter a bench trial, the district court found that PCS was liable to Ashley II for environmental cleanup costs and PCS was entitled to indemnification for attorney's fees and costs from Ross. Following Ross's motion for reconsideration, the district court vacated its indemnification order and certified the above question to this Court.\\nII.\\nWe have long recognized \\\"that a contract of indemnity will not be construed to indemnify the indemnitee against losses resulting from its own negligent acts unless such intention is expressed in clear and unequivocal terms.\\\" Laurens Emergency Med. Specialists, PA v. M.S. Bailey & Sons Bankers, 355 S.C. 104, 111, 584 S.E.2d 375, 379 (2003) (quotations and citation omitted). In this case, we are asked whether this \\\"negligence rule\\\" also bars indemnification in cases where the liability is strict and not fault-based. Based on the public policy underlying the negligence rule, the nature of CERCLA liability, and our law respecting the freedom of parties to contract, we would decline to extend the negligence rule to bar indemnification in this case.\\nA.\\nThe policy basis for the negligence rule is simple \\u2014 barring indemnification when the indemnitee is at fault for the dam ages serves to deter negligent conduct in the future, for the indemnitee will know that the indemnification agreement will not save it from liability if it fails to act with due care. Murray v. Texas Co., 172 S.C. 399, 402, 174 S.E. 231, 232 (1934). However, we have declined to apply the negligence rule to bar indemnification, even in the context of a negligence action, when application of the rule would have no deterrent value. See S.C. Elec. & Gas Co. v. Utils. Constr. Co., 244 S.C. 79, 82-90, 135 S.E.2d 613, 614-19 (1964) (rejecting an independent contractor's attempt to invoke the negligence rule where \\\"the only negligence chargeable to the [indemnitee] . was the negligence of the [indemnitor-independent contractor] itself,\\\" for the application of the negligence bar to indemnification under the circumstances would not further the purpose of the negligence rule barring indemnification).\\nWe find that barring indemnification in this case would not serve the deterrent purpose of the negligence rule. The nature of CERCLA liability is fundamentally not a fault-based determination. See United States v. Monsanto Co., 858 F.2d 160, 168 (4th Cir.1988) (\\\"The traditional elements of tort culpability . simply are absent from [CERCLA]. The plain language . extends liability to owners of waste facilities regardless of their degree of participation in the subsequent disposal of hazardous waste.\\\"). Of course, relative fault does factor into the ultimate liability calculus in the form of CERCLA's contribution provision. See 42 U.S.C. \\u00a7 9613(f) (2006) (authorizing one potentially responsible party to sue another for equitable contribution). Contribution, however, is merely a way to equitably apportion costs after liability has been established. Application of the negligence rule would not serve to deter liability in the first instance because CERCLA liability is not premised on identifying particularized harm caused by certain parties, but instead is imposed upon classes of parties based on their status, typically as owners of the contaminated premises. Nurad, Inc. v. William, E. Hooper & Sons, 966 F.2d 837, 841 (4th Cir.1992).\\nMoreover, the indemnification agreement was limited to any liability attributable to Ross up to the date of the 1966 closing \\u2014 there was no prospective, post-1966 closing liability for which Ross could be responsible under the indemnification provision. The agreement did not permit indemnification from Ross for any liability (by way of negligence, strict liability or otherwise) after the 1966 closing. We similarly observe that PCS seeks to enforce the indemnification provision in strict accordance with its terms by limiting its claim to fees and costs associated with Ross's CERCLA liability incurred because of its ownership and operation of the Site prior to the 1966 closing. Enforcing the indemnification provision under these circumstances in no manner runs afoul of the negligence rule; we would enforce the agreement.\\nB.\\nSuch a finding comports with our longstanding regard for parties' freedom to contract. See Huckaby v. Confederate Motor Speedway, Inc., 276 S.C. 629, 630, 281 S.E.2d 223, 224 (1981) (\\\"[PJeople should be free to contract as they choose.\\\"). While the freedom to contract is not without limitation, \\\"[s]trong policy considerations . generally permit business owners to allocate risk amongst themselves as they see fit.\\\" Constable v. Northglenn, LLC, 248 P.3d 714, 718 (Colo.2011) (citations omitted). An indemnity agreement is an ideal method for businesses to allocate costs and expenses that may arise in future litigation. Indeed, the parties to the 1966 agreement were sophisticated business entities that engaged in an arms-length purchase agreement and chose to include an indemnity provision in the contract. We find no basis to invoke the negligence rule to trump the plain language of the indemnity agreement.\\nIII.\\nBecause the deterrent purpose underlying the negligence rule would not be served by its application under these circumstances, we find that the negligence rule does not bar indemnification in the underlying CERCLA action. We answer the certified question, \\\"no.\\\"\\nCERTIFIED QUESTION ANSWERED.\\nTOAL, C.J., PLEICONES, BEATTY, JJ., and Acting Justice Eugene C. Griffith, Jr., concur.\\n. Ross Development Corp. was formerly known as Planters Fertilizer & Phosphate Co. (Planters). We refer to Ross and Planters collectively as \\\"Ross.\\\"\\n. PCS Nitrogen, Inc. is the successor-in-interest to Columbia Nitrogen Corp. (CNC). We refer to PCS and CNC collectively as \\\"PCS.\\\"\\n. 42 U.S.C. \\u00a7 9601-9675 (2006). \\\"CERCLA imposes strict liability on all entities that have owned or operated 'facilities' at which hazardous substances were 'disposed.' \\\" Anderson Bros. v. St. Paul Fire & Marine Ins. Co., 729 F.3d 923, 929 (9th Cir.2013) (footnote and citations omitted). \\\"Congress enacted CERCLA 'to promote the timely cleanup of hazardous waste sites and to ensure that the costs of such cleanup efforts were borne by those responsible for the contamination.' \\\" Litgo New Jersey Inc. v. Comm'r N.J. Dep't of Envtl. Prot., 725 F.3d 369, 378 (3d Cir.2013) (quoting Burlington N. & Santa Fe Ry. Co. v. United States, 556 U.S. 599, 602, 129 S.Ct. 1870, 173 L.Ed.2d 812 (2009)).\\n. Because PCS does not seek to recover its fees and costs associated with CERCLA liability attributed to contamination occurring after the 1966 closing, PCS is not seeking \\\"contractual indemnification for costs and expenses resulting in part from its own strict liability acts,\\\" as the certified question suggests. We acknowledge the record before us may be incomplete. If, based on the current record, we have misapprehended the scope of PCS's indemnification claim against Ross, we invite a rehearing petition to specifically identify where in the record PCS seeks indemnification from Ross for any acts or omissions of Ross occurring after the 1966 closing date. The 1966 indemnification agreement, to be sure, does not allow for indemnification for any acts or omissions by Ross occurring after the 1966 closing date. Such result is a function of the clear terms of the indemnification agreement, not an expansion of the negligence rule.\\n. We note the narrow reach of today's holding. Our holding is limited to determining that the negligence rule \\u2014 which would operate as a bar to enforcement of the indemnification provision \\u2014 does not preclude contractual indemnification under the facts of this CERCLA action. We make no finding regarding how PCS's indemnification claim should be resolved, for such a finding is reserved to the district court. And finally, we do not permanently close the door on the possibility that in a different context there may a sound basis for applying the negligence rule outside of the traditional parameters of a negligence action.\"}"
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+"{\"id\": \"4372818\", \"name\": \"County Commissioners vs. Winnsboro National Bank\", \"name_abbreviation\": \"County Commissioners v. Winnsboro National Bank\", \"decision_date\": \"1876-03-15\", \"docket_number\": \"\", \"first_page\": \"78\", \"last_page\": \"87\", \"citations\": \"7 S.C. 78\", \"volume\": \"7\", \"reporter\": \"South Carolina Reports\", \"court\": \"Supreme Court of South Carolina\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-11T00:07:43.554746+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before MACKEY, J., at Fairfield, January Term, 1875.\", \"parties\": \"County Commissioners vs. Winnsboro National Bank.\", \"head_matter\": \"HEARD NOVEMBER TERM, 1875.\\nCounty Commissioners vs. Winnsboro National Bank.\\nThe County Commissioners and the School Commissioner cannot maintain an action against one holding as bailee a sum of money belonging to the County treasury to compel him to make distribution of the same among the different departments of the government as if it were assets in equity subject to the jurisdiction and orders of . the Court.\\nThe administration of the funds of a public treasury belongs to the executive department of the government, and the judicial department has no jurisdiction to seize such funds and distribute the same under its orders.\\nCounty Commissioners have no right to demand and receive of the County Treasurer a sum of money in gross ; .their duty is simply to audit legal demands upon the County and certify the same to the County Treasurer for payment. The County Treasurer is the legal custodian of the County funds, and the duty of disbursing the same is on him.\\nBefore MACKEY, J., at Fairfield, January Term, 1875.\\nThis was an action by Henry Jacobs and others as County Commissioners of Fairfield County, and W. J. Crawford as School Commissioner of the same County, plaintiffs, against the Winnsboro National Bank, defendant.\\nThe summons was for the relief demanded in the complaint, and the complaint, after stating in the first and second paragraphs thereof that the plaintiffs were the County Commissioners and the School Commissioner of Fairfield County, and that the defendant is a banking association duly organized, &c., proceeded as follows:\\nThat on the 30th day of March, A. D. 1874, one J. S. Fillebrown took from the safe of the County Treasurer of Fairfield County a package of money, said to contain about eight thousand dollars; that he has deposited said package with the Winnsboro National Bank, the defendants, and intends to carry the same to the State Treasury.\\nThat the money contained in said package belongs to the County of Fairfield, and has been appropriated for County and school purposes, having been raised by taxation for County purposes.\\nWherefore the plaintiffs demand judgment against the defendant; that it be required to hold said money on deposit subject to the further order of this Court, until a legal inquiry and determination of the ownership of said money may be made.\\nOn the 7th May, 1874, an order was made by the Circuit Judge as follows:\\n\\u201c On hearing the complaint herein, and the affidavit filed therewith, no answer or demurrer having been filed, and upon hearing the suggestions of William Nelson, County Treasurer, of William J. Crawford, School Commissioner, and of Henry Jacob, Chairman of the Board of County Commissioners, on motion of Mr. Rion, attorney for the plaintiffs, and by request of Mr. Attorney General Melton, it is ordered that the Attorney General be made a party to these proceedings; and that it be referred to C. C. Macoy, Esquire, as Special Referee, to take testimony and report touching the ownership of the funds referred to in the complaint herein; that he hold said reference without delay at Fairfield Court House, and to make his report to the Judge of this Court, at Chambers.\\u201d\\n\\u201cI acknowledge service of this order, and waive any amendments of pleading or other formalities for the purpose of making me a party.\\u201d [Signed by the Attorney General.]\\nIn pursuance of the above order the Referee reported:\\n\\u201cThis Referee finds that on the 30th day of March, 1874, \\u2014 the day on which H. A. Smith, County Treasurer of Fairfield County, was arrested \\u2014 the funds in question were taken from the safe of said County Treasurer by J. S. Fillebrown, Clerk of the Comptroller General, for safekeeping, and by him were deposited with the Winnsboro National Bank, the defendant; that on the 31st day of March, 1874, the complaint in this action was filed, and the said bank was, by order on that day granted, enjoined from paying out said funds until the further order of this Court. In pursuance of the same order, the funds were counted by A. M. Mackey, Trial Justice, by the School Commissioner, and by the Chairman of the Board of County Commissioners, and were found to be\\u2014\\nCurrency.............................................................$8,526 25\\nBills receivable..................................................... 8 00\\n$8,534 25\\n\\u201cThese funds having arisen from taxes collected in Fairfield County, their proper place is in the safe of the County Treasurer, as it would have been if Smith had turned them over to his successor, and they must be so considered; for I hold, as matter of law, that the acts of Fillebrown in no way or manner had any effect, either as regards the ownership of these funds or the rights or interests of claimants thereof.\\u201d\\nHe further reported as a finding of fact that the proportion of said fund due to the State was $298.74, the proportion due the Board of County Commissioners was $1,287.23, and the proportion due the School Commissioner was $6,948.28.\\nThe Attorney General excepted to the report, on the ground that the Referee should have reported the whole fund as due and belonging to the State.\\nOn the 28th January, 1875, the following final order was signed by His Honor the Circuit Judge:\\nOn hearing the report of the Special Referee herein, the exceptions thereto, and the argument of counsel, it is ordered, on motion of Mr. Rion, plaintiffs\\u2019 attorney: /\\nI. That the exceptions to the Special Referee\\u2019s report herein be overruled, and that said report be confirmed.\\nII. That the Winnsboro National Bank, the defendant, do turn over, out of the funds in question, the sum of $298.74, being the amount reported to be due the State of South Carolina, to William M. Nelson, as County Treasurer of Fairfield County.\\nIII. That the said County Treasurer do, out of said sum, first pay the costs and disbursements of this action, and do remit the balance to the State Treasurer of the State of South Carolina, for the use of the State.\\nIV. That the said Winnsboro National Bank, the defendant, do turn over to the said County Treasurer, of the funds in question, the sum of $1,287.23, the amount reported to be due to the Board of County Commissioners of Fairfield County, to be held by him subject to the orders of the Board of County Commissioners, to be disbursed by them according to law.\\nV. That the said Winnsboro National Bank, the defendant, do turn over to the said County Treasurer, of the funds in question, the sum of $6,948.28, the amount reported to be due the School Commissioner of Fairfield County, to be placed by him to the credit of the school fund of Fairfield County, to be drawn out in pursuance of law.\\nVI. That the said Board of County Commissioners of Fairfield County, and School Commissioner, do each pay to James H. Rion, plaintiffs\\u2019 attorney, by order on the said County Treasurer, five per centum of the amount reported due them, as aforesaid, as a fee for his services herein, to be paid by the County Treasurer out of the respective funds hereinbefore specified.\\nThe Attorney General appealed on the grounds\\u2014\\n1. Because the said judgment gives relief not asked for in the complaint; and there being no answer or other pleadings raising proper issues, plaintiffs have no right to any relief other than that demanded in the complaint.\\n2. Because the said plaintiffs have no right or interest in the fund to warrant the judgment pronounced in said action.\\n3. Because, if any judgment could have been made in said action respecting the ownership of said fund, the judgment of the Court should have been that the State of South Carolina was uentitled to the tax collected for State purposes, to wit, twelve-fifteenths of said fund, and that the County of Fairfield was entitled to the tax collected for County purposes, to wit, three-fifteenths of said fund; and the same should have been ordered to be paid to the County Treasurer of Fairfield County, to be by him applied according to law.\\nMelton, Attorney General, for appellant.\\nRion, contra.\\nMarch 15, 1876.\", \"word_count\": \"3960\", \"char_count\": \"23296\", \"text\": \"The opinion of the Court was delivered by\\nWillard, A. J.\\nThe leading question in this case is, whether the County Commissioners and Commmissioners of Schools have a right of action to recover from the County Treasurer specific amounts standing to the credit of their respective offices, to be disbursed in their several departments, by a proceeding in the nature of a bill in equity to seize and administer such funds as legal assets.\\nCriminal proceedings, for official misconduct, were instituted against the Treasurer of Fairfield County, and an agent of the Comptroller General, for the security of the moneys in the hands of the County Treasurer during such prosecution, took possession of a sum of money in the County treasury and deposited it temporarily with the defendants, a national bank, as a special deposit. The present suit was commenced by the persons holding the offices of County Commissioners and School Commissioner of that County. The complaint alleged as follows : \\\"That on the 30th day of March, A. D. 1874, one J. S. Fillebrown took from the safe of the County Treasurer of Fairfield County a package of money, said to contain about eight thousand dollars; that he has deposited said package with the Winnsboro National Bank, the defendant, and intends to carry the same to the State Treasury; that the money contained in said package belongs to the County of Fairfield, and has been appropriated for County and school purposes, having beeen raised by taxation for County purposes.\\\" The prayer was that the defendant be required to hold said money on deposit subject to the further order of this Court, until a legal inquiry and determination of the ownership of said money may be made.\\nAn injunction order was made upon such complaint and an affidavit supporting it. This order contained other provisions than such as properly belonged to an injunction order, that will be noticed hereafter. So far as it operated as an injunction order, it is not a subject of review at the pz'esent time, as no motion appears to have been made to dissolve it as such, and as its force, as a preliminai'y injunction, was expended with the recovery of final judgment. By the terms of the order just mentioned, the Court assumed the control and administration of the fund thus brought ex parte to its notice, and gave directions as to its custody by the bank, \\\"subject to the orders of the Court of Common Pleas of Fairfield County, to be made upon a legal inquiry and determination of the ownership of said money by the Court.\\\"\\nThis order appeal's to have been made without notice to any of the parties interested in the fund, and in an action in which the only defendant was a mere bailee of a special deposit, and in which neither the County nor the State was represented either as a plaintiff or a defendant. This order was dated March 31, 1875.\\nOn the 4th of May following, H. Jacob, Chairman of the Board of County Commissioners for Fairfield County, one of the plaintiffs, filed a suggestion informing the Court \\\"that on the 31st day of March, 1874, and while still County Treasurer, Henry A. Smith reported to him that there was in the Winnsboro National Bank the sum of $1,304.40 appropriated to County purposes.\\\" . On the same day, W. J. Crawford, School Commissioner of that County, filed a suggestion as follows: \\\"That on the 31st day of March, A. D. 1874, and while still County Treasurer, Henry A. Smith reported to him that there was in the Winnsboro National Bank the sum of $6,366.95 appropriated for school purposes.\\\"\\nThe reasons for the filing of these suggestions on the part of parties to the action, and the bearing of the matters suggested, are not explained, nor can we understand them from the course of practice with which we are familiar.\\nOn the same day with the last named, W. M. Nelson filed a suggestion alleging that since the commencement of the action Henry Smith had resigned as County Treasurer, and that he had been appointed and commissioned such County Treasurer.\\nNo order making Nelson a party defendant appears, nor does it appear that he followed up the filing of his suggestion with any motion to be made a party to the record.\\nOn the 5th day of May an order was made by the Circuit Judge as follows: \\\" On hearing the complaint herein, and the affidavit filed therewith, no answer or demurrer having been filed, and upon hearing the suggestions of William Nelson, County Treasurer, of William J. Crawford, School Commissioner, and Henry Jacob, Chairman of the Board of County Commissioners, on motion of Mr. Rion, attorney for the plaintiffs, and by request of Mr. Attorney General Melton, it is ordered that the Attorney General be made a party to these proceedings, and that it be referred to C. C. Macoy, Esq., a Special Referee, to take testimony and report touching the ownership of the funds referred to in the complaint herein ; that he hold said reference without delay at Fairfield Court House, and do make his report to the Judge of this Court at Chambers.\\\"\\nIt appears from this order that no answer was interposed in behalf of the County Treasurer; that the reference to ascertain the ownership of the fund was requested by the Attorney General, and that the Attorney General was made a party. The formal entry of an order making him a party, and the amendment of the pleadings to that effect, was waived by the Attorney General, and no answer appears to have been interposed by him.\\nThereupon the Referee proceeded to take testimony, and reported certain sums due out of the funds in the County treasury to the State, to the County Commissioners and to the School Commissioner, and recommended that the fund in suit be ratably distributed among such parties.\\nThe only party that filed exceptions to the Referee's report was the Attorney General in behalf of the State. A final judgment was given distributing the fund accordingly, from which the Attorney General has appealed.\\nThe question as to the correctness of the judgment is embarrassed by the unusual and irregular course of proceeding. The attempt to seize a sum of money belonging to a public treasury temporarily separated from such treasury, and to convert it into a fund in equity, subject to distribution, as assets for the payment to the various departments of the government, \\u2014 the sums which by law they should receive from the treasury, \\u2014 is a proceeding without precedent and incomprehensible to the judicial mind. But the difficulty in the present case arises from the fact that the County Treasurer, the legal custodian of the fund, and whose duty it was to see that proper steps were taken to prevent the funds in the treasury from being improperly disposed of, either through the forms of law, or contrary to them, has not answered or interposed a claim to the fund in such form as to bring the question of the ownership of the fund before us. We are left to conjecture to find the explanation of this circumstance. It is possible that the County Treasurer thought that his whole duty was discharged when he gave the Court the information that he had been appointed County Treasurer in the place of the officer from whose hands the money had been taken. If so, he was clearly mistaken. The responsibility for the custody of the funds of the County did not belong to the Circuit Judge, but belonged by law to the County Treasurer. The custody and disbursement of this fund was an administrative duty that could not be devolved upon a judicial officer. The Judge can perform judicial functions alone, and only act as he is moved by the parties in interest. The County Treasurer, as the legal custodian of the funds, was bound to see that the claims of the County Treasurer to hold and administer the funds were properly represented before the Court. This function could not be performed by the Circuit Judge, for it is the business of an advocate, which is inconsistent with the functions of a Judge. On the accession of the new County Treasurer to his office, he became, in law, chargeable with the fund in question, to the same extent as if it had been placed in his hands by the outgoing County Treasurer.\\nIt does not follow that if the fund is distributed contrary to law, even through the forms of a suit, that the County Treasurer is absolved from liability. If third parties are permitted by a public officer to litigate as among themselves, and take judgments affecting public property or funds in the hands of such officer, although such officer may suffer himself to become bound by such proceedings as between the parties thereto, still he may be held accountable for not interposing, as the representative of the public interests in his hands, to protect such public interests. The County Treasurer should have been made a party to the complaint, as representing the County treasury, and should have answered the complaint, so that the rights of the County treasury to the fund could have been directly passed upon. It happens, however, that the result can be indirectly reached through a defect in the rights of the plaintiff to maintain this action.\\nThe appeal of the Attorney General puts in question the right of the County Commissioners and the School Commissioner to receive the amount which by law was subject to disbursement through their respective departments. Assuming, for the purpose of illustration, that there were funds in the hands of the County Treasurer which by law he should transfer to the plaintiffs for disbursment, then the proper remedy to enable the plaintiffs to obtain such funds was a writ of mandamus to compel the County Treasurer. The fund in question must be considered precisely as if it was in the personal custody of the County Treasurer; and unless the money in tbe County treasury could be seized and converted by the Court into an equitable fund for distribution among those having legal or equitable claims to it, such a remedy could not be pursued in the present case.\\nIt is clear that removing the money to the defendant's custody did not change the legal title of the County Treasurer to it. That act was not so intended. On the contrary, we must assume it was to secure the money so that it might be returned to the County Treasurer in case he was restored to the exercise of his official powers, or to his successor in office. Such a change of title could not result by operation of law, for the legal intendments are with the best legal right.\\nThe question is simply, then, whether the plaintiffs could bring such an action and have the funds in the treasury seized by the Court for distribution, An action at law could not be maintained by the plaintiffs on the title they set forth to recover moneys belonging to the County Treasury, considered as property wrongfully withheld from the rightful owners. Something is said about appropriation by the County treasurer of those funds, but there is no evidence that any portion of the funds in the treasury had been set apart, as specifically intended, for either the County Commissioners or the School Commissioner, or that anything equivalent to delivery of possession had taken place. The whole fund was an unit, and the County Treasurer could alone divide it into its parts, unless a Court of equity possessed authority to take the fund into its own han'ds and to make the division requisite. Although the authority to divide the fund rested with the County Treasurer alone, yet parties having a statute right to the fund were not without remedies, for the Courts of law could, by mandamus, compel the performance of such act. This jurisdiction by mandamus acts upon the person holding the office and neglecting the performance of a legal duty, and not upon the property committed to his care. The remedy is strictly personal, and the penalties for refusal to obey the writ are purely personal, falling on theincumbent as an individual.\\nCan a Court of equity seize and administer funds in a public treasury ? It certainly never has been done, and that affords strong, though perhaps not conclusive, reason that it ought not to be done. There are reasons why it should not be done. Our Constitution adopts a rule to a greater or less extent governing all communities organized upon a partition of public authority among different and co-ordinate departments of the government. It separates executive duties from judicial. It classes among the executive duties those embracing the administration of public property and funds. The judiciary cannot draw to itself the actual administration of public property and funds without overstepping the bounds that the Constitution has set to it. While the Courts can act upon the person holding an office in such manner as to compel him to perform his official duties, they cannot push him aside and take the public property and funds in their own hands and administer them. These principles are of universal recognition. The judicial powers and responsibilities should be more carefully watched and preserved than those of any other department of the government, for judicial power represents the strength of the government. This, although a passive quality and a function less brilliant than that of directing the active public energies, constitutes the essential condition of public security and progress, and renders possible the accomplishment of beneficent ends and the defeat of evil purposes. Encroachments of judicial authority upon the domain of other co-ordinate branches of the government are the more dangerous, because tending to convert a conservative into a destructive power.\\nWe do not feel at liberty to assert for the judicial authority powers so objectionable and unprecedented as those claimed to be exercised in their behalf by the plaintiffs.\\nThe law regulating the powers of the County Commissioners (General Statutes, 146,) nowhere authorizes the County Commissioners to demand and receive from the County Treasurer, in a gross sum, the amounts to be disbursed by them. On the contrary, the County Treasurer is the disbursing officer, entitled to hold the unexpended funds of the County, and the proper duty of the County Commissioners is to audit legal demands against the County, and to certify them for payment to the County Treasurer. Payment of demands thus audited and certified is to be made by the County Treasurer directly to the parties entitled to such payments, and he is not permitted to pay moneys to the County Commissioners to be disbursed by them. This defeats the right of the County Commissioners to maintain such an action as they have brought in the present case.\\nIf the School Commissioner has any right whatever to demand in gross moneys held by the County Treasurer applicable to disbursement for school purposes, (a right that need not be considered here,) yet it does not appear that any of the requirements of law, as it regards the character of the vouchers upon which payments are to be made from the County treasury for school purposes, have been complied with. The School Commissioner has no right to maintain an action.\\nThe judgment must be set aside, and an order made relinquishing the fund in question and dismissing the complaint without costs; for this purpose, it is remanded to the Circuit Court.\\nMoses, C. J., and Wright, A. J., concurred.\"}"
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+"{\"id\": \"4378560\", \"name\": \"Jowers v. Stansell\", \"name_abbreviation\": \"Jowers v. Stansell\", \"decision_date\": \"1883-03-08\", \"docket_number\": \"No. 1355\", \"first_page\": \"607\", \"last_page\": \"607\", \"citations\": \"18 S.C. 607\", \"volume\": \"18\", \"reporter\": \"South Carolina Reports\", \"court\": \"Supreme Court of South Carolina\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T18:15:40.707231+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Jowers v. Stansell.\", \"head_matter\": \"No. 1355.\\nJowers v. Stansell.\\nNovember Term, 1882.\\nMarch 8th, 1883.\\nH. M. Thompson, for appellant. Robert Aldrieh, contra.\", \"word_count\": \"63\", \"char_count\": \"412\", \"text\": \"Opinion by\\nMr. Chief Justice Simpson,\\nOrder of Judge Hudson refusing a motion for non-suit in action for tresspass upon land, not disturbed, there being evidence of - possession, both actual and constructive, by plaintiff, and of defendant's trespass, and the verdict being for plaintiff.\"}"
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+"{\"id\": \"4391816\", \"name\": \"CARRIGAN v. EVANS\", \"name_abbreviation\": \"Carrigan v. Evans\", \"decision_date\": \"1889-07-06\", \"docket_number\": \"\", \"first_page\": \"262\", \"last_page\": \"266\", \"citations\": \"31 S.C. 262\", \"volume\": \"31\", \"reporter\": \"South Carolina Reports\", \"court\": \"Supreme Court of South Carolina\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-11T00:11:52.753475+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"CARRIGAN v. EVANS.\", \"head_matter\": \"CARRIGAN v. EVANS.\\n1. An order discharging a rule because title to land was involved does not determine the issues and is not an adjudication on the merits.\\n2. A purchaser at a foreclosure sale.brought action for partition against his co-purchaser and made the person in possession (who, as trustee of the mortgagor, was not a party to the foreclosure case) a party defend ant. This defendant denied the right of plaintiff and his co-purchaser to possession or partition, and claimed legal title in himself as trustee. Held, that this raised a legal issue which must be tried by a jury on calendar 1, with the burden of proof on plaintiff and his co-purchaser before the question of partition could be determined. Reams v. Spann, 28 S. C., 530, approved.\\nBefore Pressley, J., Chesterfield, February, 1889.\\nThe opinion states the case.\\nMr. R. T. Oaston, for appellant.\\nMr. W. W. Hursey, contra.\\nJuly 6, 1889.\", \"word_count\": \"1608\", \"char_count\": \"9107\", \"text\": \"The opinion of the court was delivered by\\nMr. Justice McGowan.\\nThis case was submitted upon printed arguments, and, as well as we can gather them from the Brie'f, the general facts are as follows :\\n(1) It seems that Samuel W. Evans and his tenant, C. S. Brown, are in possession of a tract of land containing 500 acres ; that Evans claims to be seized in fee of the same under the will of one Eleanor Chapman, which conveyed the fee to him upon the trusts to hold the same for the sole and separate use of Margaret Blue, for and during her natural life, and after her death to convey the same to her children, share and share alike ; that said Margaret Blue is still alive, and is one of the defendants in the case.\\n(2) It further appeared that under some proceeding the aforesaid tract of land was offered for sale by the sheriff of Chesterfield County. The record of that proceeding is not in the \\\"Case,\\\" and it does not appear what was the precise nature of the issues, or who were the parties thereto, except that it fell out incidentally from a previous order made by Judge Fraser, that the proceeding was an action by William A. Carrigan, the plaintiff here, to foreclose a mortgage against Mrs. Blue, the principal eestui que trust, and that her trustee, Samuel W. Evans, was not a party to the proceeding. At the sale, however, Carrigan and A. A. Pollock bid off the land, and took sheriff's titles as tenants in common. Evans refused to yield possession, claiming that the legal title was in him; that he had never been made a party to any proceeding in which it was adjudged that he had not the title. The purchasers at the sheriff's sale made some efforts to dispossess him, which were not successful; but, from the view the court takes, it will not be necessary to refer to the subject of these proceedings again.\\n(3) Thereupon the plaintiff, Carrigan, alleging that he and Pollock were \\\"seized in fee simple absolute\\\" of the land, instituted this proceeding against his co-purchaser, Pollock, for partition, making at the same time Samuel W. Evans, the trustee, and his tenant, Brown, as also the cestui que trust, Mrs. Blue, parties defendant, the defendant Evans still objecting to surrender possession, but, on the contrary, claiming the land as his own as trustee, and traversing the allegation that Carrigan and Pollock, or either of them, had titles under the aforesaid sheriff's sale and conveyance.\\nThe case came up on calendar No. 2 as a case in chancery, and Judge Pressley, upon motion of the plaintiff, ordered that the following \\\"issues from chancery\\\" be submitted to a jury for trial: \\\"1. Is the defendant, S. W. Evans, the sole owner of the property described in the complaint as trustee ? 2. Is the said defendant, S. W. Evans, as trustee, owner of any part of said property or land, and, if so, what part? It is further ordered, that the said defendant, S. W. Evans, do hold the affirmative of said issues,\\\" &c.\\nFrom this order the defendant, Samuel W. Evans, appeals to this court upon the following exceptions: \\\"I. Because his honor erred in granting said order. II. Because said cause not being ready for trial, and no motion having been served on defendant's attorney, it was error to hear the motion of plaintiff's attorney, and grant order thereon without consent of defendant. III. The complaint being for the recovery and partition of real estate, and the defendant in his answer having denied the allegations of complaint, alleged adverse possession and title in himself, the plaintiff should have been required to establish the allegations of his complaint, and his honor erred in requiring the defendant to assume the affirmative of the issues to be submitted to a jury. IV. The defendant, in his answer, having claimed absolute title to the land described in the complaint, the cause should have been submitted to a jury upon tie issues made by the pleadings, and not upon 'issues out of chancery.' V. The question of title to land being raised by the pleadings, the case should have been transferred from calendar No. 2 to calendar No. 1, to be tried before a jury upon the issues of title raised therein. VI. Because the issues submitted under the order of Judge Fraser having been determined in favor of the defendant, the question of right to the possession of the land described in the complaint was thereby adjudicated. VII. Because the judgment'and order of Judge Wallace determined the right of possession of said premises to be in the defendant.\\\"\\nExceptions 6 and 7 relate to some previous proceedings by the purchasers to oust Evans from the premises, but we do not think it necessary to encumber the case with a statement of them. As we understand it, the doctrine of res adjudiaata does not apply to the order of Judge Wallace, confirming the finding under \\\"issues\\\" directed by Judge Fraser, that the defendant, Evans, was entitled to possession. While approving the finding, Judge Wallace held that \\\"no final judgment could be rendered in the case, for the reason that title to land cannot be determined in this State under a rule.\\\" The merits had not been decided under proper issues. See Charles v. Charles, 13 S. C., 387.\\nWe regard every point in this case as conclusively settled by that of Reams v. Spann (28 S. C., 530), where, in a similar case, it was held that \\\"where plaintiff brings action for partition, alleging that two of the defendants are in possession, who answer, claiming title, the rights of these defendants involve a legal issue, which must first be determined by trial by jury, before the matter of partition can be heard. Upon the question of title it is not a case for an issue out of chancery, but for a trial by jury at law.\\\" Here the pleadings admit that Evans is now and for a long time has been in possession of the premises, claiming title. It does not appear that he was made a party in the case of foreclosure of mortgage against Mrs. Blue, under which the claimants purchased. They may have no title; Mrs. Blue may not have had the right to bind the land by mortgage. At all events, it is clear that the title has never been adjudged as against Evans, who claims title as trustee in himself. In this state of the case, the claimants have no right to partition the land between themselves until they have established their title as against Evans. That can only be done in the regular way by proving their title. Evans, being in possession, may remain entirely passive until they, the purchasers, prove their case upon the formal legal issue made by them. To assume that they have title, and to require him to prove his title, and to show cause why he should not be ousted of the possession, would be to reverse entirely the relations of the parties, and by making Evans the actor instead of being the defendant, to deprive him of an important right involved in the maxim, u3Ielior est conditio possidentis, et rei quam actoris.\\\"\\nAs this court said in Reams v. Spann, supra: \\\"The case embraced two causes of action- \\u2014 -one purely legal for the recovery of possession of the land, and the other equitable \\u2014 for partition of it after it ivas recovered. The legal issue should therefore have been first tried by a jury; and if that resulted in favor of the plaintiffs, then, and not till then, could the court on its equity side decree partition, as in Adickes v. Lowry, 12 S. C., 97. In the trial of the legal issues, the action being for the recovery of specific real property, the question of title should have been submitted to a jury upon the issues made in the pleadings. As we understand it, the right of a party to demand a trial by jury under section 274 of the Code differs very materially from any right concerning 'issues from chancery,' [the findings upon which may be entirely disregarded by the judge, acting as chancellor.] So far as the McHeas [Evans] are concerned, this is simply an action at law for the recovery of a tract of land.\\\" And authorities.\\nThe judgment of this court is, that the judgment of the Circuit Court be reversed, and the case remanded to that court for a new trial in conformity with the principle herein announced, or such other proceedings as the parties may be advised.\"}"
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+"{\"id\": \"4396913\", \"name\": \"CUNNINGHAM v. CAUTHEN\", \"name_abbreviation\": \"Cunningham v. Cauthen\", \"decision_date\": \"1892-09-17\", \"docket_number\": \"\", \"first_page\": \"123\", \"last_page\": \"145\", \"citations\": \"37 S.C. 123\", \"volume\": \"37\", \"reporter\": \"South Carolina Reports\", \"court\": \"Supreme Court of South Carolina\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-11T00:24:00.126921+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"CUNNINGHAM v. CAUTHEN.\", \"head_matter\": \"CUNNINGHAM v. CAUTHEN.\\n1. Administration\\u2014Specie\\u2014Premium.\\u2014The rule that prohibits a trustee from making profit to himself out of the trust estate in his hands, does not require an administrator, by reason of his receipt of specie at a time when it was almost the only circulating medium in the State, to account in currency, now at par with specie, for the premium which specie commanded over paper currency at the date of its receipt.\\n2. Ibid.\\u2014Ibid.\\u2014Ibid.\\u2014An administrator is not chargeable with the premium which specie, left by the intestate, commanded at the time of its receipt by the administrator, there being no proof that he had realized a premium by an exchange of this specie for paper money. He was not bound to make such exchange, and it will not be presumed.\\n3. Ibid.\\u2014Ibid..\\u2014Ibid..\\u2014An administrator is not chargeable with the premium on sale notes taken by him payable \\u201cin gold or its equivalent,\\u201d except to the extent that he is shown to have actually received a premium on gold in payment.\\n4. Ibid.\\u2014Purchase at His Own Sale.\\u2014Where an administrator bid off in his own name cotton of his intestate at the estate sale, and resold it at a greater price, charging himself in his sale bill with such greater price, which was the highest market value, it was a purchase by the administrator, such as the statute allows, notwithstanding the fact that he took notes on the resale payable to himself as administrator, and sometimes spoke of a tract of land acquired by him in his own name under the foreclosure of a mortgage given to secure-one of these notes, as estate property. The distributees have no other right than to require the administrator to account for the value of the cotton as charged on the sale bill, and have no claim on the tract of land so purchased by the administrator.\\n5. Findings of Fact by a referee, concurred in by the Circuit Judge, sustained, not being contrary to the weight of the testimony.\\n6. Exceptions overruled because too general, referring back to exceptions taken to a referee\\u2019s report, and argumentative, raising no particular points.\\n7. An Administrator\\u2019s Returns to the Probate Court, made many years before, ar aprima facie evidence, after his death, of the credits claimed, if it appears on the face of the returns for what purposes of the estate the payments were made.\\n8. Statement of Accounts.\\u2014The mode adopted by the referee in stating the account of an administrator with the estate, and with the several distributees of the estate for advances, approved.\\n9. An Exception upon a point not ruled upon on Circuit not considered, but \\u2022 left open for determination on the recommittal of the cause.\\n10. Findings of Fact by the Circuit Judge, overruling the referee, sustained.\\n11. Administrator\\u2014Assets\\u2014Credits.\\u2014An administrator should not be allowed credit in his accounting for notes not shown by him to have been the property of the estate, or sufficiently secured, or uncollected, or not collectible by the exercise of proper diligence.\\n12. Findings of Fact by referee, concurred in by Circuit Judge, as to the several items in a long accounting, sustained.\\n13. Ibid.\\u2014Uncollected Notes.\\u2014Credit allowed by referee and Circuit Judge to an administrator for notes uncollected in the years just after the war, approved.\\n14. Allowakces\\u2014Administrator allowed credit for expenditures made under a contract to secure a teacher for the distributees of his intestate\\u2019s estate, he having no children of his own.\\n15. Costs\\u2014Recommittal.\\u2014Decree as to costs reversed without prejudice, as the case has to go back for a restatement of the account.\\nBefore Witherspoon, J., Lancaster,\\nOctober, 1890.\\nAction by William J. Cunningham and others, distributees of the estate of Joseph A. Cunningham, deceased, against Lewis J. Cauthen, administrator of Andrew J. Kibler, who had been administrator of the said Joseph A. Cunningham, commenced August 17, 1883. The Circuit decree, omitting its findings upon pure questions of fact affecting only items in the accounting, was as follows:\\nAll of the issues in the above entitled action were referred to D. A. Williams, Esq., as special referee, who filed his report August 29, 1890. The cause was heard upon numerous exceptions to said report by both plaintiff and defendant.\\nIt appears that Joseph A. Cunningham, a planter, residing, a few miles from Lancaster Court House, died intestate December 11th, 1865, and that soon thereafter Andrew J. Kibler administered upon his estate. At the time of his death, Joseph A. Cunningham left, as his heirs at law and distributees, six minor children, whose mother had predeceased their father. This action was originally instituted in August, 1883, by the heirs at law against Andrew J. Kibler for an account of his administration of his intestate\\u2019s estate. Pending this reference, and before he had been fully examined before the referee, Andrew J. Kibler died intestate, and the action was continued against his administrator, the defendant, Lewis J. Cauthen.\\nOn 13 December, 1865, the ordinary granted an order, authorizing Andrew J. Kibler, as administrator, to sell the cotton to the highest bidder, in some convenient cotton market, in the usual way of disposing of such property, and that he offer for sale, and dispose of, at public auction to the highest bidder,, the remainder of the surplus property, on the third day of Jan uary, 1866, on the following terms, to wit: for the provisions, cash (except the molasses), balance on credit until 1st January, 1867, with interest from date, purchaser to give note and good security. Andrew J. Kibler lived at the homestead and cultivated the land during the year 1867 and 1868. On the 3d and 4th of January, 1866, the administrator sold personal property upon the premises, including some fifty-eight bales of cotton at twenty-four cents per pound, that being the highest bid, and soon thereafter sold the cotton to different persons at twenty-eight cents per pound, charging himself in the sale bill with cotton at twenty-eight cents per pound, and amounting to $6,899.40. The intestate left on hand at his death $1,360.50 in gold, $48.45 in silver, and $98.45 in currency.\\nThe sale bill, including the cotton, amounted to $9,428.15. In the first return, the administrator charged himself with the sale bill ($9,428.15), and also with the cash on hand at intestate\\u2019s death. The referee has charged the administrator with a premium of 40 per cent, (value of gold) on the sale bill of $9,428.15, as well as upon the $1,608.95 of specie on hand at intestate\\u2019s death. He has allowed the administrator credit for the same rate of premium upon all payments which appear in specie, during the period that gold or specie was at a premium, including the sale notes, for which the administrator has been allowed credit. Exhibit A of the report shows the general account of the administrator, with a statement of the reasons for disallowing the administrator credit for certain items. Exhibit B gives the reasons that influenced the referee in disallowing credit for certain paymeuts, alleged to have been made by the administrator. Exhibits C, D, E, F, and G-, represent the account of the administrator with each of the distributees, with statements of the reasons for not allowing the administrator credit for certain charges against the respective distributees. The referee reports the aggregate amount due by the administrator, August 1, 1890, to the five distributees, to be $16,511.11.\\nThe defendant\\u2019s exceptions will be first considered. It is alleged that the referee erred in not finding certain facts, to wit: That Kibler was a half brother of the intestate; that he declined other lucrative employment to administer upon intes tate\\u2019s estate, and take charge of the minor children, at the instance of the near relations of the children; that he was kind to the children, supplied their wants, and gave them a liberal education; that his administration was attended by the peculiar difficulties incident to the results of the war. These facts do appear, but I cannot say that the referee erred in failing to state them in his report.\\nThe referee\\u2019s report is quite elaborate, and clearly states in detail all matters relevant to the issue referred to the referee. In this connection, it is proper to state that I am satisfied that the administrator acted in good faith in bidding off the cotton at the sale. The fact that the administrator charged himself with the increased price for which he sold the cotton, is the highest and best evidence of good faith. I am also satisfied that the administrator charged himself with the cotton at its highest market value. The defendant excepts upon the ground that the referee erred in charging the administrator with forty per cent, premium on the sale bill of January 3d and 4th, 1866, as well as upon the specie on baud at intestate\\u2019s death.\\nThe order for sale did not direct the currency in which purchasers at the sale were to pay for the property. The administrator testifies that the cotton was sold for cash, payable in gold and silver coin; that he collected a premium on gold on the sale notes. W. B. Marshall testifies that he heard the announcement of the terms of sale, and it was for gold; that he paid the administrator a premium of forty per cent, on sale notes. Under the order of sale, it was the duty of the administrator to collect the sale notes at their maturity, January 1, 1867, or show sufficient reasons why said notes were not collected at maturity.\\nIt is conceded that the intestate\\u2019s property was sold for gold, but it is contended: 1st. That it is to be presumed that the payments by the administrator were made in gold. 2d. That the administrator can now discharge his liability to the distributees, by paying in gold at its depreciated value. The administrator\\u2019s returns and vouchers only show that specie was paid in a few instances, when the referee has allowed credit for the same premium charged against the administrator. Even if such a presumption could arise in favor of a trustee, who has been called upon to account, I fail to see how it can be invoked in this case, in the face of the facts admitted and proven, that the administrator has collected a premium of forty per cent, upon sale notes, for which he has not charged himself. According to the evidence, when the administrator sold intestate\\u2019s property-, and upon the 1st of January, 1867, when the sale notes matured, gold was at a premium of forty per cent. Gold has depreciated to the value of currency, and it would be inequitable to the distributees to allow the administrator to account for the gold at its depreciated value, unless it is made to appear that the gold which the administrator received was used for the payment of the debts of the estate, or that it was held by the administrator for estate purposes until it depreciated. This has not been done. See ex parte Glenn, 20 S. 0., page 67. I conclude that the administrator was properly charged with the premium on the sale and on the specie on hand, and the defendant\\u2019s exceptions on this point must be overruled.\\nThe defendant alleges that the referee erred in not allowing the administrator credit for money deposited in the Bank of Mecklenburg, N. G. To sustain this credit, three certificates were produced, issued by the Bank of Mecklenburg, at Charlotte, N. 0., payable to A. J. Kibler individually, for $1,189.50 in gold, $40.44 in silver, and $371.77 in currency, and bearing interest at eight per cent. Thebank failed on the 4th of August, 1875, and on November 1, 1878, A. J. Kibler individually receipted on each of said certificates for a dividend paid by the bank. He does not refer to said deposits in his returns, and does not charge himself with the dividend received. 'There were endorsements, without date, on the certificates, in the handwriting of Kibler, that the money belonged to the estate of Cunningham, and his testimony to this effect, when called upon to account, is inconsistent with his conduct. Assuming that the bank was in good financial standing, and that there was no impropriety in the administrator depositing the money in a bank at Charlotte, N. 0., upon the evidence, I fail to see how the referee could allow the credit. The defendant\\u2019s ex ceptions in relation to the deposit in the Bank of Mecklenburg, N. C., are overruled.\\nThe testimony of William J. Cunningham and Thornwell K. Cunningham, taken after the death of Kibler, as to transactions and communications between said plaintiffs and Kibler, is obnoxious to sec. 400 of the Code, and should have been excluded by the referee. I do not think that the referee erred in permitting plaintiffs to introduce testimony after the death of Kibler, as alleged in defendant\\u2019s exceptions. * * *\\nThe defendant\\u2019s 17th, 18th, and 19th exceptions allege that the referee erred in not allowing the administrator credit for a number of items therein referred to, and in charging the administrator with the tax on certain cotton. It is urged that the administrator\\u2019s returns furnish jprima facie evidence as to the propriety of payments made by the administrator. I think this is the correct view, where it appears upon the face of the returns for what purpose the estate money was expended. But when the face of the returns do not definitely show that the expenditure was for estate purposes, I do not think it would carry such a presumption. In Wright v. Wright, 2 McCord Ch., page 197, it is held that the settlement with the ordinary is intended as security for the executor as well as for the distributees, aud after a lapse of sixteen years, ought to be a complete protection, unless impeached by the distributees. As Andrew J. Kibler died pending the reference, he should be entitled to the protection of the rule laid down in the case of Wright v. Wright. The administrator filed his returns, April 30, 1866; July 27, 1867; September 5, 1868; October 17, 1870; November 1, 1872; February 1, 1876; June 5,1879; January 21,1881, and March 10th, 1882.\\nThe referee could not consistently find that the Mellwain land belonged to Kibler, and charge his intestate\\u2019s estate with the fees and costs incident to the recovery of the land, as claimed by the defendant. * * *\\nIt appears that the estate cotton was being guarded in December, 1865, that John Crockett was a laborer, and I am satisfied that the administrator resisted in good faith the claim of Croxton for tuition. To the extent of the items above set forth, the defendant\\u2019s seventeenth exception is sustained. I do not think the evidence is sufficient to sustain the other credit claimed in said exception. The defendant\\u2019s seventeenth exception is overruled, except as to the items in said exception above specified and set forth. * * *\\nI fail to discern any ground upon which the administrator should have been credited with the $40.25 referred to in defendant\\u2019s twenty-eighth exception, and the same must be overruled. The administrator did not make annual returns, and under the act of 1789, then in force, the administrator is not entitled to commissions on money received and paid out during the year 1871. The referee has allowed the administrator credit for commissions on interest charged for each year. The twenty-eighth and twenty-ninth exceptions are overruled. It is admitted that the referee had inadvertently omitted to allow the administrator credit for the commissions on the amount reported to be due the distributees, William J. Cunningham and Beauregard Cunningham, and the defendant\\u2019s thirty-first and thirty-second exceptions are sustained.\\nThe defendant\\u2019s other exceptions allege that the referee has erred in stating the accounts and in calculating the interest charged against the administrator. The referee has carefully avoided compounding the interest with which the administrator has been charged, and it seems to me that the accounts are stated according to the rule laid down by our courts. The defendant\\u2019s thirty-fourth, thirty-fifth, and thirty-sixth' exceptions are overruled. * * *\\nPlaintiffs\\u2019 8th, 9th, 10th, and 11th exceptions allege that the referee erred in not finding that plaintiffs are entitled to the Mcllwain land, and to an account for rents and profits. It appears that Kibler sold to J. D. Mcllwain some fifteen bales of the cotton purchased at the sale of his intestate\\u2019s property, and took Mcllwain\\u2019s notes and mortgages, to secure the purchase money payable to himself (administrator estate J. A. Cunningham) in gold and silver coin, or its equivalent in currency. Under a judgment of foreclosure against Mcllwain, the land was sold in December, 1867, and purchased by Andrew J. Kibler, who took title to the land in his individual name. The plaintiffs allege in their complaint that Andrew J. Kibler held the title to the Mcllwain land as trustee for plaintiffs. The referee held that the title to the Mcllwain land was in Andrew J. Kibler individually, and that he did not hold said title in trust for the plaintiffs as heirs at law and distributees of the estate of Joseph A. Cunningham. Upon the death of Andrew J. Kibler, the title to the Mcllwain land passed to his heirs at law, who are not parties to this action. There can be no final determination of the controversy as to the Mcllwain land under the pleadings, and the exceptions to the referee\\u2019s report have been considered as if no issues had been made as to the Mcllwain land. No objection has been made upon the ground that the heirs at law of Andrew J. Kibler have not been made parties, but they are necessary parties, and would not be bound by any adjudication with reference to the Mcllwain land under the present pleading.\\nPlaintiffs\\u2019 main cause of action is to require Andrew Kibler to account for his administration of his intestate\\u2019s estate. Upon the death of Kibler, pending said action, his administrator was the only necessary or proper party to said accounting. The allegation in the complaint as to the Mcllwain land is a separate and distinct cause of action, involving the title to land of which Kibler was seized and possessed at the time of his death, and the heirs at law of Kibler are the only necessary or proper parties defendant to said cause of action. Under section 188 of the Code, plaintiffs may unite separate and distinct causes of action in the same complaint, but they must affect all the parties to the action, except in action for the foreclosure of mortgages. The defendant, Lewis J. Cauthen, as administrator of Andrew J. Kibler, is not affected by the issues as to the McUwain land, nor are the heirs at law of Andrew J. Kibler affected by the cause of action against Lewis J. Cauthen, administrator in the same, contemplated in section 188 of the Code.\\nBut assuming that the two causes of action are properly united in the complaint, it has been more than four years since Andrew J. Kibler died pending this action, there has been no motion to amend the pleadings by making the heirs at law of Kibler parties to this action, the testimony is voluminous, the cause has been heard upon numerous exeej)tions to. the elaborate report filed by the referee, and it seems to me to be too late now for the plaintiffs to ask for an amendment which may require a restatement by the referee of the administrator\\u2019s accounts from January, 1866, up to 1883. I will not, therefore, order the amendment of the pleadings, so as to make the heirs at law of Andi\\u2019ew J. Kibler parties, but will leave the issues as to the Mcllwain land open, and the plaintiffs can take such proceedings as to the Mcllwain land as they may be advised.\\nThe plaintiffs\\u2019 13th and 14th exceptions allege that the referee erred in not charging the administrator with $234.03 of interest in excess of seven per cent, received by the administrator. The administrator admitted that in some instances he received interest far in excess of the rate of seven per cent., but the referee states that he is unable to find from testimony that the administrator received more than seven per cent., with which he is charged upon the estate funds, which came into his hands. I do not think that the referee erred in not charging the administrator with interest in excess of seven per cent., and the plaintiffs\\u2019 thirteenth and fourteenth exceptions are overruled.\\nIt is ordered and adjudged, that the referee\\u2019s report in this case, filed August 29, 1890, be confirmed and made the judgment of this court, except as herein modified or overruled. It is further ordered, that the report be referred back to the referee, D. A. Williams, Esq., to restate the accounts of Andrew J. Kibler, administrator, so as to conform to this decree. It is further ordered, that the costs of this action be paid by the estate of Andrew J. Kibler.\\nBoth parties appealed on exceptions, sufficiently stated in the opinion.\\nMessrs. Ernest Moore and M. J. Sough, for plaintiffs.\\nMessrs. It. E. & It. B. Allison and It. W. Shand (who also read arguments of Giles J. Patterson, deceased, and Charles A. CNeiV), contra.\\nSeptember 17, 1892.\", \"word_count\": \"8283\", \"char_count\": \"48337\", \"text\": \"The opinion of the court was delivered by\\nMe. Justice McGowan.\\nJoseph A. Cunningham died intestate, in December, 1865, seized and possessed of considerable real and personal estate, leaving surviving heirs and distributees as follows: Mary C., a daughter (who married Robert T. Dunlap, and died in 1868, leaving as her heirs her husband and one son, Joseph A. Dunlap, of whose person and estate his father, Robert T. Dunlap, is guardian), Rebecca, another daughter (who never married, but died in 1867, leaving her brothers and sisters as her heirs), Nannie C. (who intermarried with Leon C. Yanlandingham), and three sons, William J., Thorn-well K., and Beauregard Cunningham. Soon after the death of the intestate, Andrew J. Kibler, his half-brother, was appointed administrator of the estate, and entered upon the discharge of his duties as such. The war had just closed, and the administration involved some novel and difficult questions, while the tendency to confusion was increased by the fact that the sis distributees were all minors, whose mother had died before their father, and who, when not absent at school, lived with the administrator, their kinsman, or some other relatives. For some time they had no guardians, and had to be provided for by the administrator, which made it necessary for him not only to keep the account of the general estate, but also special accounts with each of the distributees, for advances made to them from time to time for various purpose's and in different amounts.\\nAfter the children reached their majority, in August, 1883, this action was instituted by the distributees against Kibler, the administrator, for an account, charging, amongst other things, that the administrator, under proceedings to foreclose a mortgage held by him as administrator, had bid off a certain tract of land, known as the \\\"Mcllwain tract,\\\" with funds of the estate, and for the benefit of the estate, and held the legal title for the distributees; but has failed and refused to account for the rents and profits thereof received by him for their benefit, and has refused to convey the said tract of land to the distributees. Also, that a considerable amount of cotton, and other personal property (including gold and silver), went into the hands of the administrator; that the said personal property of the estate was sold on a gold basis, and the notes taken therefor collected in currency, with the premium of forty per cent, on gold added, but the administrator failed to charge himself with the premium so received, as he should have done, and in various other matters had failed to make a just and true accounting.\\nThe defendant made answer in 1883, but afterwards filed an amended answer, which was substantially a general denial, and alleged that he had not only fully and fairly administered the estate, but had paid to the plaintiffs large sums in excess of the amount to which they were really entitled. And these alleged over-payments were set up as counter claims and judgments demanded against the several plaintiffs for the same. The plaintiffs in reply denied every allegation of the amended answer as to the counter claims, &c. The issues were referred to D. A. Williams, Esq., as special referee, before whom the administrator was ordered to account for the administration of the estate; but he refused to take the initiative in stating the account, and the plaintiffs were required to assume the burden of charging the administrator. The testimony was very voluminous, covering at least two hundred pages of printed matter, marked \\\"Appendix\\\" in the brief. After the plaintiffs rested their case, the administrator was sworn as a witness, and his testimony taken down in writing and signed. Soon after, in June, 1886, he died intestate, and letters of administration upon his estate having been granted to Lewis J. Cauthen, he was substituted for the original administrator as defendant in the case.\\nThe report of the referee is very long, embracing a full account of the general estate, and also separate accounts with each of the distributees, as to partial advancements which had been made to them as needed from time to time. The whole report, of course, can not be restated here, but for reference it is printed in the brief. Both parties filed numerous exceptions, which were heard by his honor, Judge Witherspoon, and from his decree, confirming the report in some particulars, and recommitting it with instructions as to others, both parties now appeal to this court\\u2014the plaintiff on fifteen principal exceptions, and in addition more than thrice that number of subordinate specifications, and the defendant on thirty-one principal exceptions, with many alleged omissions as to both findings of fact and errors of law. The points raised are so various and numerous that it will be impossible to consider the exceptions seriatim, but we will endeavor to consider the most important of them, and to classify, if possible, the alleged errors in the mere statement of the accounts, many items of which involve only inconsiderable sums.\\n(1) As to the premium on the gold and silver, which went into the hands of the administrator. (See exceptions of defendant, 1, 2, 3, 4, 5, 6, 7, 8, and 9.) The referee reports that there was on hand, at the death of the intestate, $1,608.95 in gold and silver coin; and that personal property, including fifty-eight bales of cotton, was sold by the administrator for the aggregate sum of $9,428.13, on the terms \\\"payable in gold or its equivalent;\\\" and that at the time of the receipt of the gold and silver on hand by the administrator, and at the time the aforesaid sales of property fell due, the said specie was at a premium of forty per cent., which said premium upon the specie and the amount of the notes is estimated and embraced in the general accounting of the estate reported by him; that, as matter of law, the administrator is chargeable with, and must account for, all moneys belonging to the estate, which came into his hands, or which should have been collected by him, with the premium on gold collected by him, or which could have been collected by him when due, and with the interest as charged in the aforesaid accounting. In this report and recommendation of the referee, the Circuit Judge concurred, and the question now is, was that ruling error?\\nIt certainly is fundamental, and one of the moral maxims of equity, that a trustee shall not be allowed to make profit to himself out of the estate of his cestui que trust in his hands; and it is equally true, as a matter of fact, that in 1866 and 1867, gold and silver possessed a paying power beyond that of the mere currency of that time; and at first view it may strike the casual observer, that an administrator should be required to account for specie at its true value, or according to its power in making payments and in obtaining receipts. But upon careful consideration, we think, it will be found that such view is not maintainable either in reason or authority. At the close of the war, specie was the standard of value, and for a time almost the only circulating medium of exchange in this State. From very well known causes, paper currency was much depreciated. None, not even -the wisest, could foresee clearly what would be the outcome in regard to the financial'condition or currency of the country. But, as it happened, the depreciation turned out to be only temporary, and now national currency is convertible at par into gold or silver under the legal tender acts.\\nAs to the specie found on hand at the death of the intestate, there was no contract whatever as to what should be done with it, except that it should be projierly taken care of, and used, as the law required, in the due course of administration. There was no proof that the administrator ever exchanged the gold for greenbacks, thus realizing the premium. We do not think that he was bound to make the exchange, or that we are authorized to presume that he had done so.\\nAs to the notes taken by the administrator for property sold, payable \\\"in gold or its equivalent,\\\" the premium on those notes could not have been collected at law by the administrator; and if he had been obliged to sue, he could not have collected the premium in national currency. As we understand it, after some conflict of opinion, it is now settled \\\"that if the contract is only soluble in coin, it would be improper to enter judgment for the market value of that amount of coin calculated in terms of the treasury notes; the judgment must simply be for so much gold or silver.\\\" Black on Judgments, section 132; Bronson v. Rhodes, 7 Wall., 229, and authorities in note, Curtis edition. \\\"A promissory note, payable in gold coin, or the equivalent thereof in United States legal tender notes, is completely discharged by a payment in legal tender notes, dollar for dollar.\\\" Killough v. Alford, 32 Texas, 457; s. c. 5 Am. Rep., 249; Chesapeake Bank v. Swain, 29 Md., 483; Wood v. Bullens, 6 Allen, 518; and see Gist v. Alexander, 15 Rich., 50. We think it was error to charge the administrator with the whole premium en bloc; but we think that he is properly chargeable with the premium on gold or gold notes due the estate, which it can be shown he actually received, in addition to the value of the paper, by its terms.\\n(2) As to the Mcllwaine land. The referee reports, that cotton belonging to the estate sold in January, 1866, was bid off in fair and open market by the administrator, Andrew J. Fabler, at the price of twenty-four cents per pound, and soon after sold by him, at private,sale, to different persons, at twenty-eight cents per pound, payable in coin or its equivalent in currency; and the cotton was charged against him on the sale bill, at twenty-eight cents per pound, payable in coin or its equivalent in currency, this sum, as shown by the testimony, being the true market value at that time, and the administrator, having bid off the cotton at the estate sale, became liable to the estate for the actual value thereof; that the tract of land, known as the Mcllwaine tract, sold under the foreclosure of a mortgage given by James D. Mcllwaine to secure the purchase money of a lot (fifteen bales) of the cotton so purchased and resold by the administrator, was purchased by the said Andrew J. Fabler, and a deed of conveyance of- said land was executed by the proper officer of the court to him, the said Andrew J. Fabler, in his own right.\\nUpon this state of facts the referee held that the distributees (plaintiffs) have no title to the said tract of land, the title thereto being vested in the heirs of A. J. Fabler, their ancestor, who purchased the same at the sale, under the judgment of foreclosure, as shown by the testimony. Upon this question the referee concludes that, even if the mortgage under which the land was sold had been trust funds in the hands of the administrator (which does not appear), any title or interest which the distributees might have in the same, would cease as soon as the liability thereon is paid off and discharged, and then is only chargeable, equally with all other property of the said Fabler, with the payment of the several amounts due by him to the plaintiffs or their legal representatives, etc. The Circuit Judge, stating that he was satisfied that the adminis trator acted, in good faith in bidding off the cotton at the sale, said: \\\"The fact that he charged himself with the increased price for which he sold the cotton, is the highest and best evidence of good faith.\\\" He also found that the administrator charged himself with the cotton at the highest market price ; but he declined to make an order for an amendment of the complaint so as to make the heirs at law of Kibler parties, so as to try the title to the land, but preferred to leave the matter of the title oj>en. \\u00a5e think, however, from his other rulings, that he substantially agreed with the referee.\\nThe cotton belonged to the estate, and, of course, the distributees are entitled to its actual value. But they are not entitled both to the value of the cotton and the securities taken for it, or any part of it, at the second sale made by the first purchaser. The administrator does not seem to have had a very clear idea of his rights or liabilities in the matter. He bid off the cotton, and very properly charged himself with its actual value on the sale bill; and yet it seems that he took the note payable to himself as administrator, and sometimes spoke of having purchased it for the estate. That was not consistent with his conduct and the facts of the case. We agree that the extent of the right of the distributees is to realize the actual value of the cotton as charged on the sale bill. If that can be made good in the accounting, then the distributees have no further interest in the matter of the Mcllwaine land. The legal title is in the heirs of Kibler, and there is no equity on the part of the distributees to have declared a resulting trust, or to have the rents and profits thereof. In this view, it was error to allow the administrator credit for costs or fees or any other expenses incurred in recovering or cultivating the Mcllwaine land.\\nSection 1974 of the General Statutes provides as follows: \\\"It shall be lawful for any executor or executrix, administrator or administratrix, to become a purchaser at the sale of the estate of his or her testator or intestate, under whatever authority the said sales may be made, and the property so purchased shall be vested in him or her; but he or she shall be liable to the parties, interested for the actual value of the property at the time of sale, in case it shall have been sold at an under-price,\\\" &c. See Finch v. Finch, 28 S. C., 168, and authorities cited.\\n(3) As to the deposit in the Bank of Mecklenburg, N. C., the defendant alleges that the referee erred in not allowing the administrator credit for money deposited in the Bank of Mecklenburg, North Carolina. To sustain this credit, three certificates were produced, issued by the Bank of Mecklenburg at Charlotte, N. C., payable to A. J. Kibler individually, for $1,189.50 in gold, $40.44 in silver, and $371.77 in currency, and bearing interest at eight per cent. The bank failed on August 4, 1875, and on November 1, 1878, A. J. Kibler individually receipted on each of the certificates for a dividend paid by the bank. He does not refer to the \\\"deposit\\\" in his returns, and does not charge himself with the dividend received. There were endorsements, without date, on the certificates, in the handwriting of Kibler, that they belonged to the estate of Cunningham, and his testimony to the same effect, when called upon to account, is inconsistent with his acts. The Circuit Judge held: \\\"Assuming that the bank was in good financial standing, and that there was no impropriety in the administrator depositing money in a bank at Charlotte, N. C., upon the evidence I fail to see how the referee could allow the credit.\\\" The referee found that, as matter of fact, the money deposited was the individual property of the administrator, and not of the estate. In this finding the Circuit Judge concurred, and, under the well established rule, it will not be disturbed unless it is against the weight of the testimony, which we cannot say that it is. We concur with the Circuit Judge in sustaining the referee on this joint. See Williams v. Williams, 55 Wisc., 300; s. c. 42 Am. Rep., 708.\\nThe defendant's exceptions down to No. 15, and including. 29 and 31, have now been considered in connection with the special points disposed of above. Nos. 15, 16, 17, 18, and 19 are too general, making reference to former exceptions to the referee's report difficult to find in such an enormous record. Besides, they make no particular points, but are rather argumentative as to what should be the proper principles applied to the accounting. As, for example, No. 15 complains that \\\"The judge erred, in not holding that the verified annual returns of ELiblei', as administrator, to the Probate Court, made ten, fifteen, and twenty years ago, when the facts were fresh in his mind, and entered of record, open to the inspection of all parties interested and to the world, were prima facie evidence of the credits claimed. The ,fact that ELibler died pending the reference, &c., gives additional force to the rule invoked, and the same should prevail in the absence of affirmative evidence, that the credits claimed were improper expenditures, or otherwise successfully impeached,\\\" &c. There is nothing here to decide, except to hold, as the judge did, \\\"that Kibler's returns to the Probate Court were prima facie evidence of the credits claimed, if it appeared on the face of the returns for what p> imposes of the estate the payments were made.\\\" As to the exceptions indicated, it is really impossible to determine what are the precise points which are sought to be reviewed; and the enforcement of rule No. 5 of this court is invoked.\\nException 20 of defendant complains that there is error in the manner of stating the account, \\\"in this, that not one of the payments made to, or for, distributees, on account of their distributive shares, has been credited against 'the annual balances' found in Kibler's hands in any year of the accounting, and that Kibler is held responsible for a principal or interest bearing fund in excess of what is just.\\\" We are not sure that we clearly comprehend the point made. As we understand it, in stating the account of the general estate, this is not a case, so far as the distributees are concerned, for the application of the rule in regard to \\\"annual balances.\\\" The amounts paid to (\\u00bfhe distributees from time to time were not, as we think, \\\"expenditures,\\\" in the sense of Dixon v. Hunter, 3 Hill, 206. They did not, in reality, diminish the volume of the estate in the hands of the administrator, the whole value of which it was necessary to ascertain, to make a fair division among those equally interested. The payments were rather in the nature of advances or loans, still parts of the whole estate, and to be accounted for as such; the children advanced, however, being required, on final settlement, to account for interest on their respective advances, from the times they were received, and thus re-imburse the administrator for so much interest as had been charged to him on the advances. This exception, as stated, must, therefore, be overruled.\\nException 21 of defendant. Because the Circuit Judge erred in ignoring, or failing to pass upon, defendant's 30th exception to the referee's report, by which defendant claimed credit for two and one-half per cent, commissions on $11,613.83, for interest charged in \\\"exhibit A,\\\" received between January 1, 1883, and August 1, 1890. As it seems that the judge made no ruling upon the subject of this exception, and the case must go back to the Circuit, it will be recommitted.\\nException 22. Because the referee refused to allow Kibler credit for paying out for W. J. Cunningham $2.50, tavern bill paid to B. P. Boyd, and for sundry other payments for the year 1871, aggregating $151.98, and for $8.10, paid by Kibler for him in 1872 and 1873,\\\" &e. These items of account, stated in the referee's report, were all disallowed by the referee; the defendant excepted, the exception overruled, and the defendant appeals. Id such a multitude of items of account, something must be allowed to the concurrence of the referee and Circuit Judge. Exception overruled.\\nException 23 of defendant. Because the referee refused to allow Kibler credit for paying a number of items, including board in 1869 and 1870, for Thornwell K. Cunningham. Similar to the above. Disallowed by the referee; defendant excepted, exception overruled, and defendant appeals. Exception overruled.\\nException 24. Same as above, but in reference to- the account against Nancy C. Vanlaudingham. In this case the Circuit Judge allowed a credit of $25 for board. This is not disturbed,, but defendant's exception overruled. Exception 25. The same as to- the account against Beauregard Cunningham. But in this matter, also, the judge allowed a credit of $40 for board. There is a good deal of confusion in the testimony upon, the subject of board, but we con. firm the ruling of the Circuit Judge. Defendant's exception overruled.\\nException 27 of defendant. \\\"That the Circuit Judge erred in overruling the defendant's thirteenth (13) exception to the referee's report, which claimed credit for the two following notes, charged as part of the sale bill, which Kibler failed to collect, viz.: (1) Note given by J. W. Crider and J. M. Ingraham, for $114.24, (2) and note of J. M. Ingraham, for $83.25, March 24, 1866. And the following notes given for money loaned, belonging to the Kibler (Cunningham) estate, viz., note of W. G. Stewart and Margaret Stewart. These notes were lost, and the Circuit decree did not allow the defendant credit for them. The referee disallowed credit for the notes as follows: (1) For the Crider note, for the reason that it was not given to the estate, but to Kibler for cotton, which he claimed to have bid off for himself; also, for the reason that the surety taken was insufficient, and the note had been paid in part. (2) He also disallowed credit for the Ingraham note, for the reason that there was no surety to the note, nor security for its payment, and also for the reason that it was not shown to be for the estate, or that the same, with proper diligence, could not have been collected. (3) He disallowed the Stewart note, for the reason that there was but one surety, that it was not shown to belong to the estate, or that the same could not have been collected at any time, down to 1875. The Circuit Judge concurred with the referee iu these findings and rulings, and we cannot say that in doing so he committed eri'or. Exception overruled.\\nPlaintiffs' exceptions, from 1 to 9 inclusive, have been considered in connection with the subject of the Mcllwaine land. Exception 10 of plaintiffs, complains of error in the allowance of credits to the administrator, consisting of twenty separate and distinct claims of credit allowed, which seem to have been strongly contested and carefully considered below, where the witnesses were present, and the able counsel engaged had ample time. After this contest the referee allowed the credit in each claim. The plaintiffs excepted, exceptions overruled, and the plaintiffs appeal. This court really has not the time to reconsider every item in an action for account. The concurrence of the Circuit Judge with the referee as to the sufficiency or insufficiency of the proofs, must, as a rule, be taken as conclusive. We have looked through the specifications of error alleged under this general exception, and we can not say that there is error. Exception overruled.\\nException 11 of plaintiffs complains of error in the Circuit decree, in allowing Kibler, the administrator, credit for certain alleged losses of money, claimed to belong to the estate of the intestate, whereas the evidence failed to establish that said losses were incurred without fault on the part of the said administrator: (1) Loss of note by J. B. Mobley et al., for $25, and premium, $10.29, it not having been shown that the same could not have been collected when due. (2) Loss of note by D. P. and 6. W. Bell, for $7.60, and premium, $3, it not having been shown that same could not have been collected when due. (3) Loss of balance due on note of B. F. Mobley et al., said balance being $2.86, and the premium thereon, $5.14, it not being shown that same could not have been collected when due. As to the specifications of alleged error, we have looked through the evidence, and we can not say that there was error. Just after the war was a hard time for all trustees. The referee allowed the credits, the plaintiffs excepted, exception overruled, and plaintiffs appeal. Exception overruled.\\nException 12 charges error in finding that the said Kibler, as administrator, paid out to and for one of the plaintiffs, William J. Cunningham, on account of his distributive share in the estate, certain sums herein below stated, whereas there was no sufficient evidence to establish the same as proper payment on account of said, share, and the Circuit Court should have sustained the exceptions by plaintiffs. As to the specifications under this general head, the same remark is made as above under exception 10. Exception overruled.\\nException 13 of plaintiffs complains of error in finding that the administrator Kibler paid out to and for another-of the plaintiffs, viz., Thornwell K. Cunningham,, on account of Ms distributive share in the estate, certain sums herein below stated; whereas there was no sufficient evidence to establish the same as proper payment on account of the said share, &c. As to the specifications under this general head, the referee allowed'them; the plaintiffs excepted, the exceptions were overruled, and the plaintiffs appeal. Exception overruled.\\nException 14 of plaintiffs complains of error in finding that the said Kibler, as administrator, paid out of the moneys of said estate certain sums below stated, whereas there was no sufficient evidence to establish the same as proper payments on account of the said estate, and the Circuit Court erred in overruling the report of the referee, disallowing the same, viz.: (1) Clerk Clyburn's costs in Croxton v. Kibler, $3 ; (2) J. D. White's attorney's costs, Croxton v. Kibler, $30 ; (3) Clerk Clyburn's costs, Croxton v. Kibler, $9. These three items are for tax costs in the same case, and may be considered together. In 1866, soon after the war, it seems that educational facilities in Lancaster County were not good, and that Kibler, wishing to send four of the Cunningham children to school, procured the services of one Croxton as a school teacher for ten months, for $300, the tuition fees of some neighbors, who sent some thirteen children, to assist in paying the amount agreed upon, $300. There was controversy about it, and Croxton sued the administrator Kibler for the whole amount, and recovered judgment against him, and he had the costs, now in contention, to pay. Kibler had no children of his own, and he claimed that the arrangement with Croxton was made exclusively for the benefit of the Cunningham children. It is true, the contract was that of Kibler, and not of the children, but it was clearly for their benefit, and we think that, in justice and equity, the administrator should have the credit. The referee disallowed it, the defendant excepted, the Circuit Judge sustained the exception, and the plaintiffs appeal. We concur with the Circuit Judge, and the exception is sustained. In the matter of the costs. As the case will have to go back to the Circuit to reform the account in some respects, we think it better that the order as to costs should await that account ing. The order as to costs is reversed without prejudice.\\nThe judgment, of this court is, that the decree of the Circuit Court be affirmed in all matters, except as herein reversed or modified, and that the case be remanded to the Circuit Court for such further orders and proceedings as may be necessary to carry into effect the conclusions herein announced.\"}"
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+"{\"id\": \"4416444\", \"name\": \"STATE EX REL. DE ZABALJAUREGUI v. COMMISSIONERS OF PILOTAGE\", \"name_abbreviation\": \"State ex rel. De Zabaljauregui v. Commissioners of Pilotage\", \"decision_date\": \"1902-02-25\", \"docket_number\": \"\", \"first_page\": \"511\", \"last_page\": \"515\", \"citations\": \"62 S.C. 511\", \"volume\": \"62\", \"reporter\": \"South Carolina Reports\", \"court\": \"Supreme Court of South Carolina\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T18:34:16.814661+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE EX REL. DE ZABALJAUREGUI v. COMMISSIONERS OF PILOTAGE.\", \"head_matter\": \"STATE EX REL. DE ZABALJAUREGUI v. COMMISSIONERS OF PILOTAGE.\\n1. Exception too general.\\n2. Pilots. \\u2014 Commissioners oe Pilotage have the power to require a pilot to renew his bond and take out a new license whenever they deem proper; and after notice to a pilot of such requirement, he has no right to pilot a vessel without first complying therewith; and if he do so, he is not entitled to any compensation therefor; but that regularly licensed pilot who next \\u201cspeaks\\u201d the vessel is entitled to the pilotage fees in and out.\\nBefore Buchanan, J., Beaufort, April, 1901.\\nReversed.\\nPetition for mandamus by Agapito de Zabaljauregui and John Murray against Geo. P. Elliott, C. E. Goodwin, B. B. Chadwick and Robert Mare, commissioners of pilotage for Beaufort. Prom Circuit order directing the writ to issue, the commissioners appeal.\\nMr. W. /. Verdier, for appellants, cites: Rev. Stat., 1364.\\nMr. Tho. Talbird, contra (no citations).\\nFebruary 25, 1902.\", \"word_count\": \"1523\", \"char_count\": \"8846\", \"text\": \"The opinion of the Court was delivered by\\nMr. Justice Pope.\\nThe petitioners applied to his Honor, O. W. Buchanan, presiding Judge, for a writ of mandamus to compel the appellants, as the commissioners of pilotage for Beaufort, to pay to the petitioner the sum of $209, which sum had been deposited with said commissioners by the schooner \\\"Alice Holbrook\\\" as the pilot's fees for bringing said schooner into and out of the harbor over which the said commissioners preside. The Circuit Judge, on-the 29th March, 1901, issued a rule to said board of commissioners, requiring them to show cause why a peremptory writ of mandamus should not issue to require them to pay the petitioners said pilot's fees. The said board of commissioners made the following return to said rule (omitting the caption) :\\n\\\"Geo. P. Elliott, C.. F. Goodwin, B. B. Chadwick and Robert Mare, commissioners of pilotage of Beaufort, upon whom has been served an order to show cause herein, for cause showeth: That when they entered upon the duties of such commissioners they found the pilotage' service in a badly disorganized condition; many of the bonds of the pilots were worthless, and all were in an unsatisfactory and insufficient condition. Thereafter, on the 1st of January, 1900, after carefully reviewing the situation and conferring with the various pilots, it was deemed advisable to require' the bonds of all the pilots and their licenses to be renewed, and to that end the board adopted the following motion: 'On motion of Capt. Goodwin, the secretary was instructed to notify the pilots to renew their bonds and licenses at once.' All of the pilots promptly complied except Agapito de Zabaljauregui. On the 16th October, 1900, the said Agapito de Zabaljaureguii, not having yet complied with the requirements of the board as above stated, the secretary was instructed to notify him that he must at once renew his license, and he was thereupon personally notified by the chairman of the board, Geo. P. Elliott. On the 6th day of March, 1901, Pilot James B. Evans, in charge of pilot boat No. 5, reported to the board that Aga'pito de Zabaljauregui, on the 24th -day of February, 1901, not having a license so to do, had boarded the schooner 'Alice Holbrook' and piloted her into this port, and he claimed the pilotage fees therefor on behalf of James O'Brien, one of the pilots attached to boat No. 5, who had spoken and claimed the vessel first, after finding Agapito de Zabaljauregui \\u2022illegally aboard of her. Notice of the claim filed by Pilot Evans was given to A-garpito de Zabaljauregui, and on the 25th day of March, 1901, be appeared before the board, and through Thomas Talbird, Esq., as his attorney, filed an answer in conjunction with Pilot John Murray, who then for the first time advanced any claim. All parties were before the board and a full hearing of the matter was had. The board found as follows : That Agapito de Zabaljauregui, on the 24th day of February, 1901, when he boarded the schooner 'Alice Holbrook' and proceeded to bring her into port, did not have a license, and was disqualified to act as a pilot. That Pilot John Murray, claiming to be a partner of Agapito de Zabaljauregui, and knowing him to be illegally aboard of said schooner, made no report of the matter and took no steps to claim the pilot-age fees. On the contrary, endeavored to cover up the violation of law on the part of his partner, and enable him to obtain the benefit of his illegal conduct; and only after he found the matter had been reported and the pilotage fees claimed by another, he then seeks to make a claim. That James O'Brien was the duly licensed pilot who spoke outside and claimed said schooner, after finding Agapito de Zabaljauregui illegally aboard of her. Upon this state of facts found by the board, they on the 25th March, 1901, decided that the pilotage fees of the schooner 'Alice Holbrook' inward and outward, are due to pilot boat No. 5, Capt. James Evans, master.\\\" This return was duly verified.\\nUpon hearing this return and argument thereon, on the 9th day of April, 1901, his Honor, Judge Buchanan, by a short order, directed the writ to issue requiring the said com missioners to pay over to the petitioners the said sum of $209. From this order of Judge Buchanan the commissioners have appealed to this Court on the following grounds:\\n\\\"I. Because the Circuit Judge erred in finding the relators, Agapito de Zabaljauregui and John Murray, entitled to the pilotage fees of the schooner 'Alice Holbrook.'\\n\\\"II. Because the Circuit Judge erred in not finding that on the 24th day of February, 1901, when Agapito de Zabaljauregui boarded as pilot the said 'Alice Holbrook' and .piloted her in, he, the said Zabaljauregui, was disqualified to act as pilot, and had no right to so pilot said schooner.\\n\\\"III. Because the fact having been found by the board of pilot commissioners that when Zabaljauregui piloted the schooner 'Alice Holbrook' he was disqualified as pilot, and had no license so to do, it was error in the Circuit Judge to hold him entitled to the fees of pilotage or any part thereof.\\n\\\"IV. The rights and liabilities of a pilot are individual, and it was error in the Circuit Judge to hold Murray and Zabaljauregui jointly entitled as copartners to the fees.\\n\\\"V. If Zabaljauregui was entitled to the fees, then surely Murray could not be. Any arrangement they might have had was a personal matter between them, and could not be considered in dealing with them as pilots, and it was error to consider their alleged partnership, and hold Murray jointly entitled.\\n\\\"VI. If Zabaljauregui was disqualified, and so not entitled to the fees, Murray certainly had no claim to- them or any part of them, the evidence showing that he never sought to claim the schooner as rightful pilot. On the contrary, that his entire effort was to protect Zabaljauregui and cover up his illegal conduct.\\\"\\nWe will now examine these exceptions. The first exception is too general to be noticed by us.\\nWe will examine the other exceptions in a group. The regulations of pilotage in this State may be found in Rev. Stat. 1893, sections 1357 to 1388, inclusive. The board of commissioners of pilotage for Beaufort is composed of four members. Liberal power is bestowed upon such board. As such board they had the power to require pilots to give new bonds, finding many of such bonds defective. The petitioner, Agapito de Zabaljauregui, was twice notified by the board to give a new bond as a pilot, on the penalty of being suspended from his office. He failed or refused to give the bond. His license was thereby revoked. Sec. 1376 especially forbids any one to bring in or carry out of a port any vessel unless he has a license as such pilot. This being so, although the said Agapito de Zabaljauregui first reached and boarded the schooner \\\"Alice Holbrook\\\" and brought her into port, he was not entitled to compensation therefor, because his license had been annulled by the board of commissioners by their resolution, of which he was twice notified; his copetitioner, James Murray, can take no benefit therefrom. The Circuit Judge erred in holding that the petitioners were entitled to these pilotage fees. The board of commissioners correctly decided that Pilot James B. Evans was entitled to these fees, for he was the first licensed pilot to reach the schooner \\\"Alice Holbrook.\\\" The law and practice as to pilots in this State is well considered in the opinion filed by Chief Justice Mclver, in the case of O'Brien v. Larrinaga, 49 S. C., 497. The principles therein fixed rule this case. The exceptions as grouped are well taken.\\nIt is the judgment of this Court, that the judgment of the Circuit Court is reversed and the cause is remanded to the Circuit Court, for an order there to be made directing the' board of pilot commissioners for Beaufort to pay the $209 to Pilot Captain James B. Evans.\"}"
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+"{\"id\": \"4422083\", \"name\": \"DAVIS v. COLLINS\", \"name_abbreviation\": \"Davis v. Collins\", \"decision_date\": \"1904-07-29\", \"docket_number\": \"\", \"first_page\": \"460\", \"last_page\": \"470\", \"citations\": \"69 S.C. 460\", \"volume\": \"69\", \"reporter\": \"South Carolina Reports\", \"court\": \"Supreme Court of South Carolina\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T17:35:06.981239+00:00\", \"provenance\": \"CAP\", \"judges\": \": Messbs. Chief Justice Pope and Justice Woods concur in the opinion of Mr. Justice Jones.\", \"parties\": \"DAVIS v. COLLINS.\", \"head_matter\": \"DAVIS v. COLLINS.\\n1. Evidence. \\u2014 A question seeking to make a witness pass on the credibility of other witnesses, is incompetent.\\n2. Appeal. \\u2014 A ruling seemingly acquiesced in cannot be made the ground of an exception.\\n3. Evidence \\u2014 Discretion..\\u2014Admission of de bene evidence after proper time is discretionary with trial Judge, and under facts here there is no abuse thereof.\\n4. Charge. \\u2014 It is not prej udicial error to state in a charge a fact about which there can be no reasonable difference of opinion.\\n5. Mitigation oe Damages \\u2014 Malice..\\u2014If a person has time to cool \\u25a0 after a previous difficulty and renew it from a spirit of revenge, a malicious spirit, the fact that there had been a previous difficulty cannot be considered in mitigation of damages. Mr. Justice Gary dissents.\\n6. Ibid. \\u2014 Ibid.\\u2014Under the facts here the instruction that, if a party attempt to strike one party in malice, but by accident strikes another, the blow as to the latter is malicious, is not erroneous. Mr. Justice Gary dissents.\\nBefore DanTzwr, J., Spartanburg, June, 1903.\\nAffirmed.\\nAction by Mabel H. Davis against J. D. Collins. From Circuit judgment, defendant appeals.\\nMessrs. Fvans & Frisbey and H. B. \\u25a0Carlisle, for appellant,\\ncite: Non-expert witness may give an opinion after stating facts: 19 S. C., 531; 1 McM., 56; 19 S. C., 66; 117 Mass., 133; 49 N. H., 399; 56 N. FL, 337. What must be shown to warrant vindictive damages: 35 S. C., 489; 60 L. R. A., 406; 76 Minn., 379; Addison on Torts, 7 ed., 164; Cool, on Torts, 694; 5 C. & P., 373; 59 Ind., 130; 101 Mich., 373; Hob., 134; 3 Wend., 391; 15 Da. Ann., 133; 1 Smith Dead. Ca., 549. Previous'provocations are admissible in mitigation of damages: 3 McM., 147; 3 McC., 66.\\nMessrs. Sanders & DePass and Stanyarne Wilson, contra,\\ncite: A defendant is liable for consequences of an illegal act, although not intended: 4 D\\u2019enio, 464; 5 C. & P., 373; 110 111., 333; 47 111., 133; 63 Miss., 773; 59 Ind., 130; 66 Mo., 346; 69 Me., 163; 33 Ency., 567; Whar. Am. Crime. D., 4 ed., 965; 3 Cool. Bl. Com., 130. Vindictive damages are punishment to wrong doer: 3 Sedg. on Dam., 7 ed,, 333; 34 S. C., 324; 65 S. C., 42. After time to cool, previous combat is not in mitigation of dannages: 1 Spear, 388; 3 Suth. on Dam., 2 ed., sec. 1255; 1 Id., sec. 151; 46 Am. R., 342.\\nJuly 29, 1904.\", \"word_count\": \"3435\", \"char_count\": \"19703\", \"text\": \"The first opinion was delivered by\\nMr. Justice Gary.\\nThis is an action for damages arising out of an assault and battery upon the plaintiff by the defendant.\\nThe alleged wrong is thus set forth in paragraph 2 of the complaint: \\\"That on Sunday, the second day of March, 1902, in the city of Spartanburg, at the depot of the Southern Railway Company in said city, while the plaintiff was quietly and peaceably standing at or near said depot, the defendant being there for an unlawful purpose, to wit: for the purpose of committing an assault and battery of at least a high and aggravated nature upon the person of one Clifford Gholdstein, with others aiding and abetting him in said unlawful purpose, did wilfully, wantonly, maliciously and unlawfully, while he and those who were with him were engaged in assaulting and beating, or attempting to assault and beat, the said Clifford Gholdstein, and without any cause or provocation, whatsoever, he and those who were with him aiding and abetting him in the unlawful purpose aforesaid, did strike, beat and bruise the plaintiff, Mabel H. Davis, striking her upon the head and other portions of her body, felling her to the earth, causing her to faint and become unconscious, thereby rendering her sick and shocking her nervous system, and causing- her to suffer great mental and bodily pain and anguish, and preventing her from attending to1 her household affairs and daily duties, to her damage in the sum of $6,000.\\\"\\nThe jury rendered a verdict in favor of the plaintiff for $1,000.\\nThe first exception is as follows: \\\"1. In that the Circuit Judge erred in refusing to allow the witness, Willie Brede, to answer the following questions propounded to> him by defendant's counsel: 'Q. When these gentlemen swear that the man who struck Mrs. Davis struck her with his fist, it could not have been Mr. Collins, could it ?' It being error, in that the witness had previously testified that Collins was standing near him and beyond striking disrtance, and facts as he saw them and conclusions therefrom were competent testimony.\\\" The witness was not asked to give his opinion after stating the facts upon which it was founded, but the question necessarily required him to pass upon the credibility of other witnesses. Before stating his conclusion, it was necessary for him to determine what facts were established by the testimony of the other witnesses. The question was, therefore, incompetent.\\nFurthermore, after his Honor, the presiding Judge, ruled that the question was incompetent, the appellant's attorney seemingly acquiesced in the ruling by saying, \\\"That is all right, your Honor.\\\" He also stated that the witness had answered the question.\\nThe second exception is substantially the same as the first, and is disposed of by what was said in considering that exception.\\nThe third exception is as follows: \\\"3. In that the Circuit Judge erred in refusing to allow defendant's counsel to introduce and read the depositions de bene esse of Miss Leila Coffee, a witness examined on behalf of defendant. Defendant had closed his case, the failure to introduce the same before that time being a mere oversight of counsel. The error being an abuse of the discretion vested in the trial Judge.\\\" The record 'contains the following statement : \\\"The reason given by counsel for the plaintiff for their objection to the introduction of the depositions at that stage of the case, was that the witnesses whom they had had present in Court for the purpose of meeting and contradicting that testimony had left the Court and could not again be produced, and that it would be unfair to allow the defendant to produce that testimony without an opportunity to plaintiff to reply; plaintiff having been prepared to meet it if it had been offered at the proper stage in the case.\\\"\\n, , This exception cannot be sustained, as the introduction of the testimony at that stage of the trial was within the discretion of the Circuit Judge, and the appellant has failed to satisfy this Court that there was an abuse of such discretion.\\nThe fourth exception is as follows: \\\"4. In that the Circuit Judge erred in charging the jury as follows: 'Now, shock to her nervous system \\u2014 shock to' one's nervous system1 \\u2014 may result from fright, and fright may result as the case may be, that is entirely for you to' say, and may have resulted from a blow.' The error being a charge upon the facts, and in violation of the Constitution.\\\" The presiding- Judg-e did not charge the jury that the shock to the nervous system1 was the result of the blow in this case. It was not prejudicial error to charge that shock to1 the nervous system might be the result of a blow, for this is a fact as to1 which there is reasonable ground for a difference of opinion.\\nThe seventh exception is as follows: \\\"7th. In that the Circuit Judge erred.in charging the jury as follows: (8) Where there has been a combat between two persons, and there has been sufficient time to cool, then the fact that there has been a previous combat is no excuse for either of the parties to- renew such combat; and if there has been sufficient time to1 cool and one does, out of a spirit of revenge, renew the difficulty, he is just as guilty of violating the law as he would be if there had been no previous combat, and there can be no1 mitigation of damages. That is to' say, if the person has time -to1 cool after the difficulty, plenty of time to cool, and renew the difficulty from1 a spirit of revenge, with a malicious spirit, then the fact that there had been a previous difficulty cannot' be considered in mitigation of damages. The error being that it excluded the right of the jury to1 consider any fact in mitigation of damages from considering the irritating fact of a previous combat and sudden heat and passion, in violation of the law in this State.\\\"\\nThe charge is not in accord with the rule announced in Dean v. Horton, 2 McM., 147, in which the Court says: \\\"The testimony was offered in mitigation; inquiry was to be made into the motive of the defendant. The inducement to the transaction and all such particulars in the conduct of either party leading to the final act or forming part of it, as seemed to show in what degree blame attached to them, severally, were calculated to aid the jury in determining the just measure of retribution and punishment. A provocation seemingly slight may have exasperated patience, if it were a repetition of an offense before often given and endured; and resentment otherwise rash or preparation otherwise ferocious, may be explained by the previous relation of the parties in former occurrences between them.\\\"\\nThe respondent's attorneys, in their argument, thus state the questions raised by the remaining exceptions: \\\"The jury must have clearly understood that his Honor meant to tell them' that if a blow was aimed maliciously at A. and struck B., the malice was in law as personal to B. as if aimed at B., so- far as concerns assailant's liability to B.. The fact that he did so charge, is made the ground of several of defendant's exceptions.\\\" In other words, if the defendant with malice intended to commit an assault and battery upon Gholdstein, but unintentionally struck the plaintiff, the law imputes malice to the defendant in committing the assault and battery upon the plaintiff. There are felonies in which malice is a constituent element, and if in such cases a person attempts to commit the crime with a deadly weapon and unintentionally kills another, the law imputes malice to the perpetrator, and the killing will be murder. State v. Smith, 1 Strob., 77. So, also, when a person attempts to commit suicide with a deadly weapon, and accidentally kills another, the law presumes malice, and he is guilty of murder. State v. Levelle, 34 S. C., 120, 13 S. C., 319. This doctrine, however, is only applicable when the crime is malum in se and not merely malum, prohibitum. State v. Levelle, supra; 1 Arch Cr. Pr. & PI., 49. In order to1 convict the perpetrator when the offense is malum prohibitum and was committed by accident, it is necessary to show wantonness or negligence. State v. Smith, 1 Strob., 77; 1 Arch Cr. Pr. & Pl., 923 (note).\\nMalice is not necessarily a constituent element of an assault and battery. The plaintiff, however, may rely upon it for the purpose of enhancing his damages,' in which case it is necessary to' allege and prove it. The simple fact that an assailant had malice against his intended victim, when the action is brought by another upon whom he accidentally committed an assault and battery, is not sufficient to1 show malice against the plaintiff. There must be evidence of facts from which, malice may be implied against the party suffering the injury; as, for instance, where there was wantonness or negligence. In other words, there must be evidence connecting the malice intended by the assailant with the act committed; and, as. we have said, this is. usually done by showing wantonness or negligence. It seems to- m:e that it is an invasion of the province of the jury for the Court to assume that there was such wantonness or negligence in this case as constituted malice.\\nThe judgment of the Circuit Court should be reversed, and the case remanded to that Court for a new trial.\\nMr. Justice Jones. Some months previous to March 2, 1902, Clifford Gholdstein had a controversy with J. D. Collins, a merchant at Spartanburg, S. C., in which he inflicted a serious gunshot wound upon Collins. On March 2d, 1902, Goldstein, accompanied by his father, arrived on train at Spartanburg for the purpose of attending his trial on an indictment for the offense above stated. Collins, expecting the arrival of Gholdstein, armed himself with brass knucks, and accompanied by two1 of his clerks, went to. the depot for the purpose of whipping Gholdstein. The day was Sunday, and there was a crowd of people about the station, and among them was plaintiff, who was there to. see a friend take the train. When young Gholdstein alighted from the train, and had just spoken to the plaintiff and her friend, Collins suddenly rushed upon Gholdstein and struck at him, one of the -clerks who accompanied Collins about the same time seizing hold of Gholdstein's father. There was conflict in the testimony, but there was testimony which the jury doubtless believed, that Collins struck the plaintiff in the effort to- strike Gholdstein, and thereby inflicted the injuries complained of in this action. Young Gholdstein had made no effort whatever to assault Co-l'lins, had not spoken to him, and fled through the crowd, pursued by Collins.\\nIn reference to mitigation of damages, Judge Dantzler charged the jury that if a person has time to coo-1 after a previous difficulty, and renew the difficulty from a spirit of revenge, a malicious spirit, the fact that there had been a previous difficulty cannot be considered in mitigation of damages. This charge is made the ground of the seventh exception. We think the charge was in accord with the law. In order to- render provocation admissible in mitigation of damages, \\\"the provocation must be shown to have been so recent and immediate as to induce a fair presumption that the violence done was committed under the immediate influence of the feelings and passions -excit\\u00e9d by it, and before the blood has time to cool.\\\" 2 Ency. Law, 2 ed., 998; Lee v. Woolsey (N. Y.), 10 Am. Dec., 230; Bonino v. Caledonio (Mass.), 11 N. E. Rep., 98; Cummins v. Crawford (Ill.), 30 Am. Rep., 558; Kaiser v. Smith (Ala.), 46 Am. Rep., 342; Rawlings v. Commonwealth (Va.), 19 Am. Dec., 758; Jacaway v. Dula (Tenn.), 27 Am. Dec., 492; Ireland v. Elliott (Iowa), 68 Am. Dec., 715; 3 Sutherland Dan., sec. 1255.\\nThe law makes so much concession to human infirmity in succumbing to- the passion engendered by immediate provo^-catio-n, but it would be dangerous to the peace of society to go further and open the door to the consideration of every provocation, real or fancied, however remote, as a mitigating circumstance. A contrary rule would -encourage men to take vengeance into their own hands and manufacture evidence of provocation in order to mitigate the penalty. It would declare that to brood over an old grudge or wrong and thereby swell the passion for revenge, palliates a criminal assault, whereas, tire good of society demands that men shall curb their passions and submit their grievances to law.\\nThe case of Dean v. Horton, 2 McM., 147, is cited as an authority against the charge of the Court, but an examination of the point decided rather than some of the broad language used, will show that there is no conflict. The point decided in Dean v. Horton was that it is competent in 'an action for assault and battery to offer in evidence in mitigation of damages, provoking- imputations made at times previous to' the assault of the same kind as those made which immediately lead to the assault. This is not a departure from the general rule stated, but, at most, merely modifies it so as to allow for the immediate provocation as aggravated by its being a repetition of like provocation continued up to the time of the assault. The Court distinguished Dean v. Horton from Avery v. Ray, 1 Mass., 12, a leading case in support of the general rule stated, by pointing out that in Avery v. Ray, no provocation at all was offered on the day of the injury. In the case at bar, no provocation was offered on the day of the assault. In 3 Cyc., 1098, note 6, a modification of the general rule is allowed, \\\"when the acts done or words spoken some time previous to' the assault are parts of a series of provocations repeated and continued up to the time of the assault\\\" \\u2014 citing Stetlaw v. Nellis, 60 Barb., N. Y., 524, 42 How. Pr., 163; Fairbanks v. Witter, 18 Wis., 287, 86 Am. Dec., 765.\\nSo' as in Rhodes v. Bunch, 3 McC., 65, by wajr of mitigation, the motive of the trespass may be shown by evidence of facts indicating that it was done to remove a nuisance continuing up to the trespass. In that case a vagabond had obtruded himself into one of the defendant's cabins for the purpose of preying upon the neighborhood, trading with their slaves and engaging in such conduct as to become a grievous nuisance, to remove which, in the absence of the intruder, the defendant tore down the house. The inducement to the transaction in that case was immediate and the motive one upon which the law could look with some toleration. A very different case is presented here. The Court only excluded the consideration of the previous difficulty in mitigation when there had been sufficient time to> cool and the assault was made in a spirit of revenge.\\nThe remaining exceptions to the charge are directed to the following instructions: \\\"If the defendant committed the unlawful act alleged to have been committed, if he struck the blow alleged to have been struck, intending to strike some one else and struck the plaintiff in this case, he would be liable; and, if he struck the blow' alleged to have been struck with malice towards another person and struck the plaintiff in this case, then that would be a malicious act. It need not necessarily be personal to the plaintiff. Dor instance, Mr. Foreman and gentlemen, suppose I entertained ill will towards you, and I came up and struck you, I commit an unlawful act without provocation; but having revenge in my heart when I struck you, if I struck you without sufficient legal provocation, that would be an unlawful act. Now, if I undertook to stricke you and did not strike you, but the gentleman on your left there, the act would be just as unlawful as if I had struck you, every bit. Now, if I struck you such a blow and I entertained malice in my heart against you, but not the gentleman on your left there, but I endeavored to carry out my purpose as to you and struck him, that would be a malicious act, although I entertained no ill will towards him.\\\"\\nConsidered with reference to the undisputed facts in this case, we see no reversible error in this charge. Net it be remembered that the defendant, without any immediate provocation, unlawfully and in a spirit of revenge assaulted Gholdstein with brass knucks, procured for the purpose, while he was quietly talking to friends at a depot station crowded with people. With respect to Gholdstein, the assault was made with specific malice and with respect to the bystanders so apparently close as to be endangered by the assault, his acts were so reckless and wanton as to imply general malice towards the one injured, just as if one would cast a brick from a housetop into a crowded street, or fire a loaded gun into a crowded thoroughfare. The law, under such circumstances, would imply general malice, even though the offender did not have specific malice against any particular individual injured thereby. There being nothing in the case to warrant any other inference than that the act of defendant in striking plaintiff was reckless and wanton under the circumstances, from which the law would imply malice, so as to justify examplary damages, in a civil action, we see no ground for reversal.\\nWe concur in overruling the exceptions as to the admissibility of testimony for the reasons stated by Mr. Justice Gary.\\nThe judgment of the Circuit Court is affirmed.\\n: Messbs. Chief Justice Pope and Justice Woods concur in the opinion of Mr. Justice Jones.\"}"
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+"{\"id\": \"452243\", \"name\": \"The STATE, Respondent, v. Don Reno WALTON, Appellant\", \"name_abbreviation\": \"State v. Walton\", \"decision_date\": \"2004-10-11\", \"docket_number\": \"No. 3872\", \"first_page\": \"282\", \"last_page\": \"286\", \"citations\": \"361 S.C. 282\", \"volume\": \"361\", \"reporter\": \"South Carolina Reports\", \"court\": \"South Carolina Court of Appeals\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T17:54:32.036635+00:00\", \"provenance\": \"CAP\", \"judges\": \"ANDERSON and WILLIAMS, JJ., concur.\", \"parties\": \"The STATE, Respondent, v. Don Reno WALTON, Appellant.\", \"head_matter\": \"603 S.E.2d 873\\nThe STATE, Respondent, v. Don Reno WALTON, Appellant.\\nNo. 3872.\\nCourt of Appeals of South Carolina.\\nSubmitted Sept. 14, 2004.\\nDecided Oct. 11, 2004.\\nAssistant Appellate Defender Aileen P. Clare, of Columbia, for Appellant.\\nAttorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Attorney General W. Rutledge Martin, all of Columbia; and Solicitor Thomas E. Pope, of York, for Respondent.\", \"word_count\": \"1038\", \"char_count\": \"6449\", \"text\": \"GOOLSBY, J.\\nDon Reno Walton pled guilty to charges of distribution of crack cocaine and distribution of crack cocaine within proximity of a school. He appeals, arguing the circuit court did not have subject matter jurisdiction to accept his guilty plea to distribution within proximity of a school. We affirm.\\nAt the plea proceeding, Walton waived presentment in writing and pled guilty to both of the above charges. The charges stemmed from his alleged sale of crack cocaine to a confidential informant on or about April 3, 2001 in York County. Walton was sentenced to time served and ordered to pay a $10,000 fine for the distribution charge. On the proximity charge, Walton was sentenced to ten years in prison, suspended upon time served and three years probation, and fined $10,000. The court ordered the sentences to run consecutively.\\nOn appeal, Walton contends for the first time that the circuit court lacked subject matter jurisdiction to accept his guilty plea to distribution of crack cocaine within proximity of a school because the indictment described the nearby school as the \\\"York Adult Education Center.\\\" Walton asserts the center is not a type of school specifically included in the applicable statute.\\nA circuit court has subject matter jurisdiction to convict a defendant of a criminal offense if (1) there has been an indictment that sufficiently states the offense, (2) there has been a written waiver of presentment, or (3) the charge is a lesser-included offense of the crime charged in the indictment. Cutner v. State, 354 S.C. 151, 580 S.E.2d 120 (2003). The lack of subject-matter jurisdiction may be raised at any time and can be raised sua sponte by the court. State v. Guthrie, 352 S.C. 103, 572 S.E.2d 309 (Ct.App.2002).\\nSection 44-53-445 provides that it shall be unlawful to distribute a controlled substance \\\"within a one-half mile radius of the grounds of a public or private elementary, middle, or secondary school; a public playground or park; a public vocational or trade school or technical educational center; or a public or private college or university.\\\" S.C.Code Ann. \\u00a7 44-53-445(A) (2002).\\nIn this case, the indictment for the proximity charge alleged Walton distributed \\\"a controlled substance, to wit: crack cocaine, within a one-half mile radius of the grounds of York Adult Education Center, a public school located in the city of York, South Carolina, . in violation of Section M-53-H5, Code of Laws of South Carolina (1976), as amended.\\\" [Emphasis added.]\\nWalton argues the indictment is fatally flawed because the York Adult Education Center is not specifically included among the types of qualifying schools listed in the statute, citing Brown v. State, 343 S.C. 342, 540 S.E.2d 846 (2001). In Brown, the indictment alleged that the distribution occurred within proximity of a day-care center. Our supreme court found the circuit court lacked subject matter jurisdiction to accept the defendant's guilty plea because- day-care centers were not specifically included among the types of schools listed in the statute.\\nIn the current appeal, the indictment alleges the distribution of crack cocaine occurred within a half-mile radius of a public school in violation of section 44-53-445, and names the institution, \\\"York Adult Education Center.\\\"\\nAlthough the indictment alleges the institution is a \\\"public school,\\\" it does not otherwise specify whether it is a secondary school or a vocational, trade, or technical school, all of which are qualifying institutions under the statute. See Brown, 343 S.C. at 349, 540 S.E.2d at 850 (stating \\\"section 44-53-445 does not simply criminalize distribution within proximity of a 'school,' but instead very specifically lists the types of schools covered\\\"). In State v. Owens, 346 S.C. 637, 552 S.E.2d 745 (2001), however, our supreme court held that \\\"[w]hile the better practice is to set forth the elements of the crime in the indictment rather than referring to the statutory section alleged to have been violated,\\\" an indictment was sufficient to provide the defendant with notice of the elements of the offense where it referenced the appropriate statute. Id. at 649, 552 S.E.2d at 751. The indictment against Walton clearly alleges the distribution occurred within a half-mile radius of a public school in violation of section 44-53-445; thus, we find the indictment sufficiently gave Watkins notice that the distribution allegedly occurred at a public school that was within the terms of the statute.\\nWe also hold Watkins waived any argument about whether the indictment sufficiently stated the offense to confer jurisdiction on the court since he signed a written waiver of presentment. In Hooks v. State, 353 S.C. 48, 577 S.E.2d 211 (2003), our supreme court noted as follows:\\nTwo exceptions apply to the general rule that an indictment must sufficiently state the offense to confer jurisdiction on a court. The first applies if the defendant waives presentment. The second applies where the charge to which the defendant pleads guilty is a lesser-included offense of the crime charged in the indictment.\\nId. at 51 n. 2, 577 S.E.2d at 213 n. 2 (emphasis added).\\nAFFIRMED.\\nANDERSON and WILLIAMS, JJ., concur.\\n. Because oral argument would not aid the Court in resolving the issue on appeal, we decide this case without oral argument pursuant to Rule 215, SCACR.\\n. Although our supreme court has had several cases raising the issue of subject-matter jurisdiction in this context, we note that, in a case involving the issue of a directed verdict, this court inferred that the question whether or not the York Adult Education Center fell within the scope of the statute was a question of fact for a jury to determine. State v. Chisolm, 355 S.C. 175, 584 S.E.2d 401 (Ct.App.2003), cert. denied (Apr. 8, 2004), and oveiruled on other grounds by State v. Taylor, 360 S.C. 18, 598 S.E.2d 735 (Ct.App.2004). The question of whether or not the indictment conveyed subject-matter jurisdiction was not addressed.\"}"
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+"{\"id\": \"502491\", \"name\": \"Luke A. WILLIAMS, III, Respondent, v. STATE of South Carolina, Petitioner\", \"name_abbreviation\": \"Williams v. State\", \"decision_date\": \"2005-03-14\", \"docket_number\": \"No. 25950\", \"first_page\": \"341\", \"last_page\": \"345\", \"citations\": \"363 S.C. 341\", \"volume\": \"363\", \"reporter\": \"South Carolina Reports\", \"court\": \"Supreme Court of South Carolina\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T20:04:46.238383+00:00\", \"provenance\": \"CAP\", \"judges\": \"TOAL, C.J., MOORE, WALLER, BURNETT and PLEICONES, JJ., concur.\", \"parties\": \"Luke A. WILLIAMS, III, Respondent, v. STATE of South Carolina, Petitioner.\", \"head_matter\": \"611 S.E.2d 232\\nLuke A. WILLIAMS, III, Respondent, v. STATE of South Carolina, Petitioner.\\nNo. 25950.\\nSupreme Court of South Carolina.\\nSubmitted Feb. 16, 2005.\\nDecided March 14, 2005.\\nRehearing Denied April 20, 2005.\\nAttorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, and Assistant Attorney General Derrick K. McFarland, all of Columbia, for Petitioner.\\nDavid I. Brack and Robert Edward Lominack, both of Columbia, for Respondent.\", \"word_count\": \"941\", \"char_count\": \"5941\", \"text\": \"PER CURIAM:\\nWe granted certiorari to review a post-conviction relief (PCR) order granting respondent a new capital sentencing proceeding, finding his trial counsel was ineffective in failing to request a \\\"plain and ordinary\\\" meaning jury charge. We find that counsel's performance was deficient, but that there is no evidence of resulting prejudice. We therefore reverse the PCR order.\\nFACTS\\nRespondent was convicted of murdering his wife and his son and received two death sentences. His direct appeal was affirmed. State v. Williams, 321 S.C. 327, 468 S.E.2d 626 (1996). At the PCR hearing, trial counsel acknowledged that there was no strategic or tactical reason why he failed to request a \\\"plain meaning\\\" charge. The PCR judge granted relief, and the State sought a writ of certiorari to review that decision.\\nISSUE\\nWhether there is any evidence in the record to support the PCR judge's finding that respondent received ineffective assistance of counsel in the sentencing phase of his capital trial?\\nANALYSIS\\nA PCR applicant claiming trial counsel rendered ineffective assistance must demonstrate that (1) counsel's representation fell below an objective standard of reasonableness and (2) but for counsel's error, there is a reasonable probability that the outcome of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Sellers v. State, 362 S.C. 182, 607 S.E.2d 82 (2005). In other words, the applicant must establish both error and prejudice. Id. On appellate review, this Court will uphold the PCR judge's findings of fact and conclusions of law if there is any evidence of probative value in the record to support them. Id.\\nThe PCR judge found that trial counsel's testimony established the error prong of the ineffective assistance test. We agree. He found resulting prejudice from the failure to give \\\"the plain meaning\\\" charge because:\\n1) respondent had no prior criminal record;\\n2) respondent had been out on bond prior to the trial and remained out until the guilty verdicts were returned; and\\n3) the penalty phase evidence was predominately circumstantial, far from overwhelming, and the State had primarily relied on this weak evidence in aggravation during the penalty phase.\\nWe disagree.\\nWe have carefully considered whether the record supports the PCR judge's conclusion that respondent was prejudiced by the lack of a plain meaning charge, and conclude it does not. While the factors cited by the PCR judge might support a prejudice finding in some cases, they do not in the context of this case. The evidence, albeit circumstantial, showed that respondent and his wife were experiencing significant marital problems and financial difficulties, and had in fact declared bankruptcy and seen foreclosure proceedings initiated against their marital home. In May 1991, respondent substantially increased life insurance benefits on his wife and child, naming himself as beneficiary. He also forged wife's signature on an automobile insurance form in the course of increasing that coverage. On June 19, the bodies of respondent's wife and son were found in the family car, which had been partially burned. The wife had died of blunt head trauma consistent with that inflicted by a human fist, and son had been strangled. Respondent had hand injuries consistent with beating, and told others the causes of death prior to receiving autopsy results.\\nWe do not agree with the PCR judge's characterization of the evidence of respondent's guilt as weak. Further, the evidence demonstrated that respondent's motives were financial gain and the elimination of his domestic problems. Having achieved what he set out to accomplish, it is not surprising or meaningful that respondent met the obligations of his bond. Further, given the nature of these crimes, we find the fact that he had no prior criminal record irrelevant to the question whether he was prejudiced by the lack of a \\\"plain meaning\\\" charge.\\nThe jury, by its guilty verdicts, found respondent planned in cold blood the deaths of his child and his wife, making arrangements to benefit financially. Further, the \\\"plain meaning\\\" charge evolved from the Court's concern that capital juries were speculating about parole eligibility. See Southerland v. State, footnote 1, supra. There is nothing in this record to indicate that the jurors in respondent's capital trial were concerned with parole eligibility, or confused about the meaning of a life sentence. We hold there is no evidence in the record to support the PCR judge's conclusion that respondent was prejudiced by trial counsel's deficient performance, that is, that had the jury been given a \\\"plain meaning\\\" charge there is a reasonable possibility that it would have returned two life sentences. Sellers v. State, supra.\\nCONCLUSION\\nFinding no evidence to support the PCR judge's conclusion that respondent was prejudiced by the lack of a \\\"plain meaning\\\" charge, the order granting respondent a new sentencing proceeding is\\nREVERSED.\\nTOAL, C.J., MOORE, WALLER, BURNETT and PLEICONES, JJ., concur.\\n. It is well settled that a capital defendant is entitled upon request lo a jury charge in the sentencing phase of his trial that the term life imprisonment is to be understood in its plain and ordinary meaning. See Southerland v. State, 337 S.C. 610, 524 S.E.2d 833 (1999) (reviewing the history of the \\\"plain meaning\\\" charge).\"}"
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+"{\"id\": \"515286\", \"name\": \"The STATE, Respondent, v. Robert A. KENNEDY, Appellant\", \"name_abbreviation\": \"State v. Kennedy\", \"decision_date\": \"1996-11-25\", \"docket_number\": \"No. 2595\", \"first_page\": \"295\", \"last_page\": \"310\", \"citations\": \"325 S.C. 295\", \"volume\": \"325\", \"reporter\": \"South Carolina Reports\", \"court\": \"South Carolina Court of Appeals\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T18:41:44.462786+00:00\", \"provenance\": \"CAP\", \"judges\": \"CURETON and GOOLSBY, JJ., concur.\", \"parties\": \"The STATE, Respondent, v. Robert A. KENNEDY, Appellant.\", \"head_matter\": \"479 S.E.2d 838\\nThe STATE, Respondent, v. Robert A. KENNEDY, Appellant.\\nNo. 2595.\\nCourt of Appeals of South Carolina.\\nHeard Nov. 7, 1996.\\nDecided Nov. 25, 1996.\\nRehearing Denied Jan. 24, 1997.\\nTara Dawn Shurling; Oliver W. Johnson, III; and South Carolina Office of Appellate Defense, Columbia, for Appellant.\\nAttorney General Charles Molony Condon, Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Solicitor Warren B. Giese, Columbia, for Respondent.\", \"word_count\": \"4548\", \"char_count\": \"28324\", \"text\": \"ANDERSON, Judge:\\nRobert A. Kennedy (Kennedy) was charged with first degree burglary and second degree arson in connection with the burning of Nancy Powell's residence. At trial, Kennedy moved to suppress statements he made to police officers subsequent to his arrest. After holding a Jackson v. Denno hearing, the trial court denied the motion. Although Kennedy was acquitted of first degree burglary, the jury found him guilty of second degree arson. Kennedy appeals. We affirm.\\nFACTS/PROCEDURAL BACKGROUND\\nOn November 7, 1992, at approximately 7:15 p.m., C. Ray Miles noticed fresh tire tracks in the woods near some property he owned in Kershaw County. Miles thought poachers might be on his property so he called the Sheriffs Department. Kirk Corley, a county constable, and Charles B. Thompson, Jr., a conservation officer, were dispatched.\\nThe three individuals found a blue truck with a Kansas license plate parked in a secluded spot in the woods. As they attempted to locate the owner, Robert Kennedy ran out of the woods from the driveway of a home owned by Nancy Powell. When questioned as to his reason for parking his truck on private property, Kennedy nervously explained he was looking for a dog he hit with his truck. He then changed his story and said he had driven there to meet a woman. He said he parked the truck as he did to prevent it from being vandalized. Kennedy produced identification and informed the men he was stationed at Fort Jackson. After Kennedy left, the three men investigated the area and found the Powell house fully engulfed in flames. SLED Agent Charles Huggins, a member of the arson team, conducted a fire cause and origin investigation and opined the fire was intentionally set.\\nKennedy was later arrested and charged with first degree burglary and second degree arson. At Kennedy's trial, an in camera hearing was held pursuant to Jackson v. Denno, 378 U.S. 368, 84 S.Ct 1774, 12 L.Ed.2d 908 (1964), to determine the admissibility of statements made by Kennedy.\\nJackson v. Denno Hearing\\nWitnesses for the State were: Steven Vincent, Charles Huggins, David Thomley, and Jerry Horton. Additionally, Kennedy testified at the hearing.\\nEVIDENCE OF THE STATE\\n(Vincent, Huggins & Thomley)\\nSteven Vincent, an investigator with the Kershaw County Sheriffs Department on November 7, 1992, responded to the scene of the fire and received information regarding Kennedy. That same evening, Vincent, accompanied by Investigator David Thomley, drove to Fort Jackson and attempted to locate Kennedy. However, he was off base on a four day leave.\\nOn the following Monday, Vincent, SLED Agent Charles Huggins, and Investigator David Thomley returned to Fort Jackson with two warrants for criminal trespass. The officers arrested Kennedy and Vincent advised him of his Miranda rights.\\nAt that time, Kennedy said, \\\"I do not understand, sir.\\\" When Vincent asked him what he did not understand, Kennedy stated he did not understand why the officers wanted to talk to him. Vincent explained to Kennedy he wanted to speak to him about another crime that occurred the night of the trespass. Kennedy responded \\\"he just did not understand.\\\" While being questioned, Kennedy stated, \\\"I don't have anything to say.\\\" Vincent made no threats, promises, or offers of leniency to Kennedy.\\nThomley drove Kennedy to the Kershaw County Sheriffs Department from Fort Jackson. During the trip, Thomley and Kennedy engaged in \\\"small talk.\\\" Thomley denied, however, the two discussed Kennedy's criminal charges. Upon arrival at the Sheriffs office, Thomley took Kennedy to his office. After removing Kennedy's handcuffs, the two men engaged in more \\\"small talk.\\\"\\nThomley asked Kennedy whether he understood his rights and the charges against him. Kennedy told Thomley he understood his rights, but was unclear about the criminal trespassing charges. Thereafter, Thomley explained the trespassing charges. Thomley then asked Kennedy if he understood why arson was being investigated and Kennedy indicated he did not understand. Thomley explained the statutes regarding arson and burglary as well as the matters which implicated Kennedy regarding those charges and the penalties attached to each. Thomley further explained the court had discretion concerning whether to sentence a defendant to probation or the maximum penalty. He indicated to Kennedy that officers had little control over recommendations, which were essentially matters within the solicitor's control. Kennedy asked to speak to the solicitor. Thomley permitted Kennedy to make several phone calls while in his office.\\nAround 8:00 that night, Vincent spoke with Thomley and learned Kennedy was in Thomley's office, but had nothing to say about the offenses. Thomley informed Vincent that Kennedy \\\"wants to talk to the solicitor.\\\" Vincent contacted Assistant Solicitor Glenn Rogers, who stated he would talk with Kennedy the next morning.\\nThe next day Vincent, along with Huggins, Thomley, and Rogers, spoke to Kennedy in a large room used as the Sheriffs business office. Huggins advised Kennedy of his rights and Kennedy indicated his understanding. He executed a written waiver of his rights and did not appear to be under the influence of drugs, alcohol, or mental infirmity.\\nKennedy wanted to talk with Thomley and Rogers alone, so Vincent and Huggins left the room. Rogers then asked Kennedy what he wanted to talk to him about. Kennedy inquired, \\\"What if I ask for an attorney?\\\" Solicitor Rogers immediately left the room. Thomley responded, \\\"If you want an attorney, okay. But Solicitor Rogers is not going to talk to you this morning.\\\" However, Kennedy did not ask to speak to an attorney. Kennedy specifically stated, \\\"No, call [Solicitor Rogers] back in here. Let's go ahead and get this over with.\\\"\\nUpon Rogers' return, Kennedy stated, \\\"Okay, I did it.\\\" He claimed he entered the Powell residence through the back door. Thomley indicated Kennedy did not ask for food or state he was hungry, tired, or thirsty at the time he gave his statement. Further, Thomley never advised Kennedy he would not get a deal if he did not talk.\\nWithin fifteen to thirty minutes, Vincent and Huggins reentered the room at Thomley's request. Huggins again advised Kennedy of his rights and Kennedy indicated he understood his rights. At that time, Kennedy gave a statement in which he admitted setting the fire. Vincent took notes during the statement and Huggins wrote the statement at Kennedy's request.\\nHuggins essentially corroborated the testimony of Vincent and denied Kennedy stated, \\\"I think I need a lawyer.\\\" Thomley's testimony replicates substantial portions of the testimony of both Vincent and Huggins.\\nROBERT ALAN MARTIN KENNEDY\\nOn the day of his arrest, prior to meeting with Huggins, Thomley, and Vincent, Kennedy consulted a lawyer at Fort Jackson who advised him to invoke his right to remain silent. Vincent read the criminal trespass warrants and advised Kennedy of his rights. When Vincent asked whether he understood his rights, Kennedy asserted, \\\"I ain't got nothing to say.\\\" He admitted he understood his Miranda rights, but did not understand the discussion concerning countersigning the warrants.\\nUpon arriving at the Kershaw County Detention Center, Kennedy was taken to Thomley's office. Kennedy testified Thomley expressed to him the seriousness of burglary and arson charges and read the sentence for each. Kennedy told Thomley, \\\"I ain't got nothing to say,\\\" and asked to make several phone calls, which he was permitted to do.\\nWhen Thomley arrived at the detention center the next morning, he indicated to Kennedy the Solicitor was willing to speak with him. At that time, Kennedy told Thomley, \\\"[l]ook, I did it.\\\"\\nAt the Sheriffs office, Huggins advised Kennedy of his rights. Kennedy testified that in response to Huggins stating they were not offering Kennedy a deal, he then said, \\\"Well, I think I need a lawyer.\\\" He stated Solicitor Rogers then left the room, but Huggins remained. Although he admitted he signed the waiver of rights form once, Kennedy claimed he refused to sign it a second time.\\nWhile alone in the room with Kennedy, Thomley said, \\\"Look, everything we talked about, the only way we can help you out, that's the guy you need to talk to.\\\" When Kennedy asked him about an attorney, Thomley responded he would have to wait until one was assigned to his case. Kennedy admitted that when he asked how to obtain a lawyer, he was advised by Thomley he could either hire one or receive a public defender after a financial check to determine Kennedy's indigency status. Kennedy understood an attorney would not be appointed immediately and that he would have to wait until one could be appointed.\\nUpon questioning by the court, Kennedy admitted he decided to talk to officers rather than waiting for appointment of counsel. He stated Thomley advised him the only way he would be released from jail would be through a bail hearing.\\nKennedy identified his signatures and initials on each page of his statement. He claimed that at the time he provided his statement he was tired, hungry, depressed, and frustrated. On cross examination, he admitted he never asked to use the telephone book to locate an attorney to represent him and did not again try to contact the J.A.G. officer he had consulted earlier.\\nThe jury acquitted Kennedy of the first degree burglary charge, but found him guilty of second degree arson.\\nISSUES\\nI. Did the trial court err in denying Kennedy's motion to suppress statements made by him to the police?\\nII. Was the trial court's malice instruction erroneous?\\nIII. Did the trial court err by considering improper factors in determining the appropriate sentence?\\nSTANDARD OF PROOF\\nIn State v. Washington, 296 S.C. 54, 370 S.E.2d 611 (1988), our Supreme Court annunciated the standard of proof applicable in a Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), hearing to determine admissibility of a statement:\\n\\\"It has been uniformly held, a confession may be introduced upon proof of its voluntariness by a preponderance of the evidence.\\\" State v. Smith, 268 S.C. 349, 354, 234 S.E.2d 19, 21 (1977) (Emphasis supplied).\\n\\\"[T]he burden is on the State to prove by a preponderance of the evidence that his rights were voluntarily waived.\\\" State v. Neeley, 271 S.C. 33, 40, 244 S.E.2d 522, 526 (1978) (Emphasis supplied).\\n\\\"[T]he prosecution must prove . by a preponderance of the evidence that the confession was voluntary.\\\" Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 627, 30 L.Ed.2d 618, 627 (1972) (Emphasis supplied).\\nWhere voluntariness of a statement is at issue the trial judge must make an initial determination based upon the preponderance standard. If the statement is found to have been given voluntarily, it is then submitted to the jury, where its voluntariness must be established beyond a reasonable doubt.\\nWashington, 296 S.C. at 55-56, 370 S.E.2d at 612 (emphasis in original).\\nLAWIANALYSIS\\nThe Miranda Rule\\nA statement, whether exculpatory or inculpatory, obtained as a result of custodial interrogation is inadmissible unless the person was advised of and voluntarily waived his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The purpose of Miranda is to prevent \\\"govern ment officials from using the coercive nature of confinement to extract confessions that would not be given in an unrestrained environment.\\\" Arizona v. Mauro, 481 U.S. 520, 529-30, 107 S.Ct. 1931, 1937, 95 L.Ed.2d 458 (1987).\\nMiranda Warnings\\nA suspect in custody may not be subjected to interrogation unless he is informed that: he has the right to remain silent; anything he says can be used against him in a court of law; he has a right to the presence of an attorney; if he cannot afford an attorney, one will be appointed for him prior to any questioning, if he so desires; and he has the right to terminate the interrogation at any time and not to answer any further questions. Miranda, supra.\\nIt is sufficient if the warnings reasonably convey to a suspect his rights as required by Miranda. Duckworth v. Eagan, 492 U.S. 195, 109 S.Ct. 2875, 106 L.Ed.2d 166 (1989). A \\\"talismanic incantation\\\" is not required. State v. Singleton, 284 S.C. 388, 326 S.E.2d 153, cert. denied, 471 U.S. 1111, 105 S.Ct. 2346, 85 L.Ed.2d 863 (1985), oven'uled in regard to the doctrine of infavorem vitae by State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991) (omission of phrase \\\"in court\\\" did not render warning inadequate).\\nCUSTODY REQUIREMENT\\nMiranda warnings are required for official interrogations only when a suspect \\\"has been taken into custody or otherwise deprived of his freedom of action in any significant way.\\\" Miranda, 384 U.S. at 444, 86 S.Ct. at 1612.\\nINTERROGATION REQUIREMENT\\nThe special procedural safeguards outlined in Miranda are not required if a suspect is simply taken into custody, but only if a suspect in custody is subjected to interrogation. Interrogation is either express questioning or its functional equivalent. It includes words or actions on the part of police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response. Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). See also State v. Franklin, 299 S.C. 133, 382 S.E.2d 911 (1989).\\nSIXTH AMENDMENT RIGHT TO COUNSEL\\nAcademically, it is important to recognize the distinction between Sixth Amendment right to counsel and Fifth Amendment right to speak to counsel. In State v. Register, 323 S.C. 471, 476 S.E.2d 153 (1996), our Supreme Court explicated:\\nThe Sixth Amendment right to counsel attaches when adversarial judicial proceedings have been initiated and at all critical stages. Compare Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977) with Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986). Hence, the right to counsel in judicial proceedings is distinguished from the Fifth Amendment Miranda\\u2014 Edwards right to speak with counsel upon request in a custodial setting. McNeil v. Wisconsin, 501 U.S. 171, 111 S.Ct. 2204,115 L.Ed.2d 158 (1991); State v. Wilder, 306 S.C. 535, 413 S.E.2d 323 (1991). The Sixth Amendment right does not attach simply because the defendant has been arrested or because the investigation has focused on him. Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966). Further, the Sixth Amendment right attaches only \\\"post-indictment\\\", at least in the questioning/statement setting. See Michigan v. Harvey, 494 U.S. 344, 110 S.Ct. 1176, 108 L.Ed.2d 293 (1990).\\nRegister, 323 S.C. at 477, 476 S.E.2d at 157.\\nVOLUNTARINESS OF STATEMENT\\nIn State v. Franklin, 299 S.C. 133, 382 S.E.2d 911 (1989), our Supreme Court discussed the voluntariness requirement:\\nThe test of admissibility of a statement is voluntariness. If a defendant was advised of his Miranda rights, but nevertheless chose to make a statement, the \\\"burden is on the State to prove by a preponderance of the evidence that his rights were voluntarily waived.\\\" State v. Washington, 296 S.C. 54, 370 S.E.2d 611 (1988) (emphasis in original); State v. Neeley, 271 S.C. 33, 244 S.E.2d 522 (1978). The State bears this burden of proof even where a defendant has signed a waiver of rights form____ The trial judge's determination of the voluntariness of a statement must be made on the basis of the totality of the circumstances, including the background, experience and conduct of the accused. State v. Linnen, 278 S.C. 175, 293 S.E.2d 851 (1982). The trial judge's resolution of the issue will not be disturbed absent an error of law. State v. Atchison, 268 S.C. 588, 235 S.E.2d 294, cert. denied, 434 U.S. 894, 98 S.Ct. 273, 54 L.Ed.2d 181 (1977).\\nFranklin, 299 S.C. at 137-38, 382 S.E.2d at 913-14.\\nOnce Miranda rights are validly and voluntarily waived, the waiver continues until such time as the individual being questioned revokes the waiver or circumstances are such that his will is overborne and his capacity for self-determination is critically impaired. State v. Moultrie, 273 S.C. 60, 254 S.E.2d 294 (1979). If his will is overborne and his capacity for self-determination critically impaired, use of the resulting confession offends due process. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). In determining whether an individual's will was overborne, \\\"the Court has assessed the totality of all the surrounding circumstances\\u2014 both the characteristics of the accused and the details of the interrogation.\\\" Id. at 226, 93 S.Ct. at 2047. important factors for consideration include the individual's education, youth, low intelligence, receipt of Miranda warnings, repeated and prolonged nature of the questioning, and physical abuse. Schneckloth, supra.\\nThe trial court's \\\"determination of the voluntariness of a statement will not be disturbed unless so manifestly erroneous as to show an abuse of discretion amounting to an error of law.\\\" State v. McLeod, 303 S.C. 420, 423, 401 S.E.2d 175, 177 (1991), overruled on other grounds by State v. Evans, 307 S.C. 477, 415 S.E.2d 816 (1992). \\\"The test for determining the admissibility of a statement is whether it was knowingly, intelligently, and voluntarily given under the totality of the circumstances.\\\" State v. Peake, 291 S.C. 138, 139, 352 S.E.2d 487, 488 (1987). See also State v. Rochester, 301 S.C. 196, 391 S.E.2d 244 (1990) (trial judge's determination of whether statement was knowingly, intelligently and voluntarily made requires examination of totality of circumstances surrounding waiver). \\\"A statement induced by a promise of leniency is involuntary only if so connected with the inducement as to be a consequence of the promise.\\\" Peake, 291 S.C. at 139, 352 S.E.2d at 488.\\nIn State v. Doby, 273 S.C. 704, 258 S.E.2d 896 (1979), our Supreme Court addressed the voluntariness requirement of a waiver of rights:\\nThe signing of the waiver form alone is not conclusive; the State still has the burden of showing the waiver was voluntary. This requires an examination of the totality of the circumstances surrounding the waiver, including the background, experience, and conduct of the accused, (citations omitted).\\nDoby, 273 S.C. at 708, 258 S.E.2d at 899.\\nDISCUSSION\\nOn appeal, Kennedy argues his statements were taken in violation of his right against self-incrimination under the Fifth and Fourteenth Amendments to the United States Constitution, as well as Article I, \\u00a7 12 of the South Carolina Constitution. Additionally, Kennedy asserts the statements were in violation of his right to counsel as protected by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, as well as Article I, \\u00a7 12 of the South Carolina Constitution.\\nThe evidence in this case establishes Kennedy was over thirty years old; had graduated from high school and attended a semester and a half of college; had been in the military for over ten years; attended additional educational courses while in the military, such as a leadership development course and the United States Army Drill Sergeant School; was a drill sergeant in the military; was not a man of limited mental or physical ability or experience; and had been trained by the military in interrogation tactics and permissible responses. He was articulate and able to read and write. Kennedy communicated well with the law enforcement officers, who all testified Kennedy appeared to understand the questions asked of him. In addition, Vincent, Thomley, and Huggins all testified no promises or threats were made to Kennedy. They further testified Kennedy was not under the influence of alcohol or drugs. Prior to his arrest, Kennedy consulted a J.A.G. attorney, who advised Kennedy to immediately invoke his right to remain silent upon questioning. He was advised of his Miranda rights upon arrest and at least two times thereafter.\\nAlthough Kennedy stated he did not understand why the officers wanted to talk to him, he never indicated he did not understand his Miranda rights. When Kennedy said he had nothing to say, questioning ceased and Thomley drove Kennedy to Kershaw County.\\nKennedy was allowed at least thirteen long distance phone calls to numerous family members prior to giving his statement. These family members advised Kennedy not to say anything to the officers. Kennedy did not attempt to contact the J.A.G. lawyer or any other attorney during this period of time. He also did not request assistance in contacting an attorney. WHiile in Thomley's office, Kennedy said he did not understand the charges against him; however, he specifically testified he understood his rights.\\nWhen Thomley arrived at the jail the morning after Kennedy's arrest, Kennedy voluntarily stated, \\\"I did it.\\\" This oral admission was not in response to any interrogation by Thomley, but was voluntary on Kennedy's part. See Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). Volunteered statements of any kind are not barred by the Fifth Amendment. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).\\nIn Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), the United States Supreme Court amplified:\\n[A] blanket prohibition against the taking of voluntary statements or a permanent immunity from further interrogation, regardless of the circumstances, would transform the Miranda safeguards into wholly irrational obstacles to legitimate police investigative activity, and deprive suspects of an opportunity to make informed and intelligent assessments of their interests. Clearly, therefore, neither this passage nor any other passage in the Miranda opinion can sensibly be read to create a per se proscription of indefinite duration upon any further questioning by any police officer on any subject, once the person in custody has indicated a desire to remain silent, (footnote omitted).\\nA reasonable and faithful interpretation of the Miranda opinion must rest on the intention of the Court in that case to adopt \\\"fully effective means . to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored____\\\" The critical safeguard identified in the passage at issue is a person's \\\"right to cut off questioning.\\\" Through the exercise of his option to terminate questioning he can control the time at which questioning occurs, the subjects discussed, and the duration of the interrogation. The requirement that law enforcement authorities must respect a person's exercise of that option counteracts the coercive pressures of the custodial setting. We therefore conclude that the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his \\\"right to cut off questioning\\\" was \\\"scrupulously honored.\\\" (citations omitted).\\nMosley, 423 U.S. at 102-04, 96 S.Ct. at 326.\\nIf an accused requests counsel after receiving Miromda warnings, he should not be subjected to further interrogation outside counsel's presence unless the accused initiates further communication with law enforcement officers. Smith v. Illinois, 469 U.S. 91, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984). In Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994), the Court instructed:\\nRather, the suspect must unambiguously request counsel. As we have observed, \\\"a statement either is such an assertion of the right to counsel or it is not.\\\" Smith v. Illinois, 469 U.S. at 97-98, 105 S.Ct. 490 [at 494], 83 L.Ed.2d 488... Although a suspect need not \\\"speak with the discrimination of an Oxford don,\\\" . he must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. If the statement fails to meet the requisite level of clarity, Edwards does not require that the officers stop questioning the suspect. See Moran v. Burbine, 475 U.S. 412, 433, n. 4, 106 S.Ct. 1135 [1147, n. 4], 89 L.Ed.2d 410 (1986) (\\\"the interrogation must cease until an attorney is present only [i]f the individual states that he wants an attorney\\\")....\\nWe decline petitioner's invitation to extend Edwards and require law enforcement officers to cease questioning imme diately upon the making of an ambiguous or equivocal reference to an attorney. The rationale underlying Edwards is that the police must respect a suspect's wishes regarding his right to have an attorney present during custodial interrogation. But when the officers conducting the questioning reasonably do not know whether or not the suspect wants a lawyer, a rule requiring the immediate cessation of questioning \\\"would transform the Miranda safeguards into wholly irrational obstacles to legitimate police investigative activity_\\\" (citations omitted).\\nDavis, 512 U.S. at 459-60, 114 S.Ct. at 2355-56 (holding the statement \\\"[m]aybe I should talk to a lawyer,\\\" was not a request for counsel and did not require that interrogation cease).\\nWhile meeting with Thomley and Solicitor Rogers, Kennedy inquired, \\\"What if I ask for an attorney?\\\" We hold this ambiguous statement is not an invocation of Kennedy's right to counsel. Therefore, the officers were not required to stop questioning Kennedy.\\nNevertheless, even if this statement invoked Kennedy's right to counsel, Kennedy thereafter waived this right when he initiated further discussions with the officers and later knowingly and intelligently waived his rights. See Smith v. Illinois, 469 U.S. 91, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984). See also Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983) (the Court held a statement from an accused such as, 'Well, what is going to happen to me now,\\\" was sufficient \\\"initiation\\\" by the accused to warrant further communication by law enforcement officers although the accused had earlier invoked his right to counsel).\\nThe evidence presented during the Jackson v. Denno hearing supports the trial court's conclusion the State met its burden of establishing by a preponderance of the evidence that the statements were freely and voluntarily given.\\nJURY INSTRUCTION ON MALICE\\nKennedy contends the trial judge's instruction on malice created a rebuttable presumption of malice. Because Kennedy did not object to the trial judge's instruction, this issue is not preserved. State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991).\\nIMPROPER SENTENCING CONSIDERATIONS\\nKennedy maintains the trial court erred by improperly considering Kennedy's exercise of his constitutional right to a jury trial as an influential factor in determining the appropriate sentence. Because Kennedy did not object to the sentence, this issue is not preserved. See Torrence, supra.\\nCONCLUSION\\nReviewing the record under the totality of circumstances test, we conclude the trial judge did not err in ruling Kennedy's statements were admissible. The State met its burden by a preponderance of the evidence in establishing Kennedy's statements were freely and voluntarily given without coercion, duress, or pressure. Further, the record establishes Kennedy voluntarily, knowingly, and intelligently waived his Miranda rights. In summary, there was no violation of Kennedy's right against self-incrimination under the Fifth and Fourteenth Amendments to the United States Constitution, as well as Article I, \\u00a7 12 of the South Carolina Constitution. Moreover, there was no violation of his right to counsel as protected by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, as well as Article I, \\u00a7 12 of the South Carolina Constitution.\\nTherefore, we find Kennedy's statements were properly admitted.\\nAFFIRMED.\\nCURETON and GOOLSBY, JJ., concur.\\n. 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).\"}"
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+"{\"id\": \"7334901\", \"name\": \"In the Matter of Steven Robert LAPHAM, Respondent\", \"name_abbreviation\": \"In re Lapham\", \"decision_date\": \"2013-01-15\", \"docket_number\": \"Appellate Case No. 2013-000054\", \"first_page\": \"223\", \"last_page\": \"224\", \"citations\": \"402 S.C. 223\", \"volume\": \"402\", \"reporter\": \"South Carolina Reports\", \"court\": \"Supreme Court of South Carolina\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-11T01:29:41.402602+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In the Matter of Steven Robert LAPHAM, Respondent.\", \"head_matter\": \"742 S.E.2d 1\\nIn the Matter of Steven Robert LAPHAM, Respondent.\\nAppellate Case No. 2013-000054.\\nSupreme Court of South Carolina.\\nJan. 15, 2013.\", \"word_count\": \"341\", \"char_count\": \"2129\", \"text\": \".ORDER\\nThe Office of Disciplinary Counsel asks this Court to place respondent on interim suspension pursuant to Rule 17(c) of the Rules for Lawyer Disciplinary Enforcement (RLDE) contained in Rule 413 of the South Carolina Appellate Court Rules (SCACR). The petition also seeks appointment of an attorney to protect the interests of respondent's clients pursuant to Rule 31, RLDE, Rule 413, SCACR.\\nIT IS ORDERED that respondent's license to practice law in this state is suspended until further order of this Court.\\nIT IS FURTHER ORDERED that James D. Jolly, Jr., Esquire, is hereby appointed to assume responsibility for respondent's client files, trust account(s), escrow account(s), operating account(s), and any other law office accounts respondent may maintain. Mr. Jolly shall take action as required by Rule 31, RLDE, Rule 413, SCACR, to protect the interests of respondent's clients. Mr. Jolly may make disbursements from respondent's trust account(s), escrow account(s), 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 James D. Jolly, Jr., Esquire, has 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 James D. Jolly, Jr., Esquire, has been duly appointed by this Court and has the authority to receive respondent's mail and the authority to direct that respondent's mail be delivered to Mr. Jolly's office.\\nMr. Jolly's appointment shall be for a period of no longer than nine months unless an extension of the period of appointment is requested.\\n/s/Jean H. Toal, C.J.\\nFOR THE COURT\"}"
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+"{\"id\": \"824699\", \"name\": \"Karen Kreul SHINN, Appellant v. Robert KREUL, Respondent\", \"name_abbreviation\": \"Shinn v. Kreul\", \"decision_date\": \"1992-11-12\", \"docket_number\": \"1947\", \"first_page\": \"94\", \"last_page\": \"103\", \"citations\": \"311 S.C. 94\", \"volume\": \"311\", \"reporter\": \"South Carolina Reports\", \"court\": \"South Carolina Court of Appeals\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T23:30:34.851760+00:00\", \"provenance\": \"CAP\", \"judges\": \"Shaw and Bell, JJ., concur.\", \"parties\": \"Karen Kreul SHINN, Appellant v. Robert KREUL, Respondent.\", \"head_matter\": \"1947\\nKaren Kreul SHINN, Appellant v. Robert KREUL, Respondent.\\n(427 S.E. (2d) 695)\\nCourt of Appeals\\nStephen E. Carter, of Ruth, Clabaugh & Hack, Hilton Head Island, for appellant.\\nKenneth Tootle, Beaufort, for respondent.\\nSubmitted Nov. 12, 1992.\", \"word_count\": \"2755\", \"char_count\": \"16420\", \"text\": \"Cureton, Judge:\\nKaren Kreul Shinn (Shinn), the appellant, brought an action in Iowa to increase the amount of child support awarded under an earlier Iowa divorce decree. The Iowa court entered a default order increasing the amount of support. Subsequently, the Iowa court granted her an order for mandatory wage withholding. At the time of both of these orders, Robert Kreul (Kreul), the respondent, was a resident of South Carolina; the appellant and supported child were residents of Florida. Shinn attempted to certify this order in South Carolina under S.C. Code Ann. \\u00a7 20-7-1315 et seq. The family court dismissed her petition, finding that the Iowa court lacked personal jurisdiction to modify the support amount. Shinn appeals this ruling as well as several other findings. We reverse and remand.\\nThe parties were divorced on September 8, 1983 by decree of the District Court of Clay County, Iowa. The divorce decree incorporated a \\\"stipulation of settlement\\\" agreed to by the parties. The decree and stipulation provided that Kreul would pay child support of $300.00 per month to Shinn until the couple's only child reached th age of 18. Thereafter, he would provide support until the child reached age 22 as long as the child remained unmarried and attended college for nine months of each calendar year. Both parties were residents of Iowa at the time of the divorce.\\nThe child, Ann Kreul, became 18 years of age on September 1,1989.\\nIn 1989, Shinn petitioned the Iowa court to modify the child support order. At the time of this petition, Shinn and her child were residents of Clearwater, Florida; Kreul was a resident of Hilton Head Island, South Carolina. The petition, notice and rule to show cause were served on Kreul in the state of South Carolina. Kreul failed to appear or contest the jurisdiction of the Iowa court. On February 28, 1990, the Iowa court found Kreul in default and entered an order increasing child support to $438.00 per month. On October 8,1990, the Iowa court entered an order of income withholding pursuant to Iowa Code \\u00a7 252D.1 et seq. Shinn attempted to certify this income withholding order in the Family Court of Beaufort County pursuant to S.C. Code Ann. \\u00a7 20-7-1321. In response to a notice of deficiency mailed to him by the family court in accordance with S.C. Code Ann. \\u00a7 20-7-1322, Kreul petitioned the family court to stay service of this notice on December 7,1990, alleging that he was current in his payments because he had been paying support directly to his daughter, and that the modification of the 1983 child support order by the Iowa court was invalid because Iowa lacked personal jurisdiction over him.\\nThe family court dismissed Shinn's action for mandatory wage withholding of child support and of the arrearage. Although it observed that S.C. Code Ann. \\u00a7 20-7-1315(D)(l), -1321, and -1323 (Supp. 1992) provide that \\\"the grounds for granting the petition to stay service are limited to a dispute concerning the identity of the obligor or the existence or amount of the arrearage,\\\" it held that due process requires that the Iowa court have in personam jurisdiction over Kreul at the time of its decision. It held the Iowa court did not have in personam jurisdiction over Kreul, a nonconsenting and nonresident individual, when all parties have lost meaningful contact with Iowa, and that Iowa had no legitimate interest in ex tending jurisdiction on behalf of a nonresident plaintiff against a nonresident defendant.\\nAdditionally, the trial court held both parties' contacts with Iowa had been severed to the extent that the Iowa court was limited to the enforcement of the 1983 divorce decree. The family court found that by suing in Iowa, Shinn had chosen a forum where Kreul would be unable to defend. Further, it found that Kreul had a legitimate defense to the amount of the arrearage and was \\\"probably\\\" not in arrears as of the date of the child's emancipation and, regardless, that Kreul had made direct payments to the child, which satisfied his support obligation.\\nI.\\nShinn asserts that the family court erred by holding that the Iowa court lacked jurisdiction to modify the child support provisions of a divorce decree originally entered by the Iowa court. We hold the family court erred by failing to consider the continuing jurisdiction of the Iowa court to modify the terms of the 1983 decree.\\nIowa law provides continuing jurisdiction to modify an award of child support. Hobson v. Hobson, 248 N.W. (2d) 137, 144 (Iowa 1976); In re Marriage of Rohlfsen, 398 N.W. (2d) 197, 199 (Iowa Ct. App. 1986). A petition to modify child support is not an independent proceeding but is supplementary to the original divorce suit. Van Gundy v. Van Gundy, 244 Iowa 488, 56 N.W. (2d) 43, 45 (1952). The absence of a party from the state does not deprive the court of jurisdiction to order a change in child support. Id. at 46. A statute which authorizes an Iowa court to make subsequent changes in a divorce decree reserves not only subject matter jurisdiction in the court but also jurisdiction of the parties. McKee v. Murrow, 40 N.W. (2d) 924, 927 (Iowa 1950); Droste v. Droste, 231 Iowa 216, 1 N.W. (2d) 107, 109 (1941); see also E. H. Schopler, Annotation, Necessity of Personal Service within State upon Non-resident Spouse as Prerequisite of Court's Power to Modify its Decree as to Alimony or Child Support in Matrimonial Action, 62 A.L.R. (2d) 544 (1958). Once the Iowa court obtained jurisdiction to enter a divorce decree, it retained jurisdiction to modify the terms of this decree.\\nApplying an erroneous analysis of long-arm jurisdiction, the family court suggests that the parties must reestablish jurisdiction each time they return to court to enforce or modify the divorce decree. Once jurisdiction attaches to the person, it is not defeated by subsequent events that would have prevented it from attaching in the first place. Gardner v. Gardner, 253 S.C. 296, 302, 170 S.E. (2d) 372, 375 (1969). While Kreul may have in the 1990 Iowa proceedings raised the question of whether or not due process mandated Iowa decline to exercise jurisdiction because of a lack of minimum contacts of the parties with Iowa, he may not raise that point in this proceeding.\\nAccordingly, Kreul waived all objections to the Iowa court's jurisdiction when he ignored the petition, notice and rule to show cause which were served on him in 1990. Objections to personal jurisdiction are waived unless raised. In re Marriage of Ivins, 308 N.W. (2d) 75, 77 (Iowa 1981).\\nWe further note that were we to decide the question of whether Iowa could have, consistent with due process, exercised personal jurisdiction over Kreul in the 1990 proceedings, we would nonetheless, sustain Iowa's jurisdiction. The parties were married, lived and divorced in Iowa. Support payments were paid by Kreul to the Iowa court until 1989. We think these contacts are sufficient to satisfy due process requirements. State ex rel. Ravitz v. Fox, 166 W.Va. 194, 273 S.E. (2d) 370, 373 (1980); Zeisler v. Zeisler, 553 S.W. (2d) 927, 930 (Tex. Ct. App. 1977); McClellan v. McClellan, 125 Ill. App. (2d) 477, 261 N.E. (2d) 216, 219 (1970), 24 Am. Jur. (2d) Divorce and Separation \\u00a7 1090 (1983).\\nA state court may assert jurisdiction over a nonresident respondent and bind him by its judgment when there is a statutory ground for the exercise of jurisdiction over his person, when there is proper service of process, and there are such minimum contacts with the state that makes it fair to require him to defend within the state. Stevens v. Stevens, 68 N.C. App. 234, 314 S.E. (2d) 786, 787-88 (1984), review denied, 312 N.C. 89, 321 S.E. (2d) 908 (1984). Kreul does not contest the first two components of this test. As noted previously, his contacts with Iowa meet the final component of the test.\\nII.\\nNext, Shinn asserts the family court erred by (1) failing to enter an order of income withholding for child support as required by S.C. Code Ann. \\u00a7 20-7-1321 and 20-7-1323, and (2) failing to order, pursuant to S.C. Code Ann. \\u00a7 20-7-1423(c), withholding in the amount of $300.00, which was not in dispute.\\nS.C. Code Ann. \\u00a7 20-7-1321(b) (1976), as amended, specifies the documentation that must have been presented to the family court by Shinn to enable her to obtain an order withholding support. No issue on appeal concerns the adequacy of this documentation.\\nS.C. Code Ann. \\u00a7 20-7-1323 (1976), as amended, provides:\\n(a) At any hearing contesting proposed income withholding based on a support order entered under \\u00a7 20-7-1321, the entered order, accompanying sworn or certified statement, and a certified copy of an order for withholding, if any, still in effect constitutes prima facie proof, without further proof or foundation, that the support order is valid, that the amount of current support payments and arrearages is as stated, and that the obligee is entitled to income withholding under the law of the jurisdiction which issued the support order.\\n(b) Once a prima facie case is established, the grounds that may be raised by an obligor to contest the withholding are limited to dispute concerning the identity of the obligor or the existence or amount of the arrearage. The burden is on the obligor to establish these defenses. The burden is on the obligor to establish these defenses. (Repeated twice in statute)\\n(c) If the obligor presents evidence which constitutes a full or partial defense, the court shall (emphasis added), on the request of the obligee, continue the case to permit further evidence relative to the defense to be adduced by either party but if the obligor acknowledges liability sufficient to entitle the obligee to income withholding, the court shall require income withholding for the payment of current support payments under the support order and of so much of any arrearage as is not in dispute, while continuing the case with respect to those matters still in dis pute. The court shall determine those matters still in dispute as soon as possible, and if appropriate shall modify the withholding order to conform to that resolution but may not modify the underlying support order.\\nBecause Shinn satisfied the technical requirements of \\u00a7 20-7-1321, she thereby established a prima facie case under \\u00a7 20-7-1323(a) that both the Iowa support order and the amount of the alleged arrearage were valid. Once Shin established a prima facie case, Kreul was limited under \\u00a7 20-7-1323(b) to contesting the existence or amount of the arrearage. Accordingly, under \\u00a7 20-7-1323(c), Shinn was entitled to withholding in an amount of at least $300.00 per month, which Kreul's attorney acknowledged at the hearing was not in dispute.\\nIII.\\nShinn asserts that the family court erred by not granting a continuance as requested by Shinn at trial. We agree. When Kreul contested the amount of the arrearage and asserted the Iowa court's lack of personal jurisdiction as a defense to the South Carolina proceeding, Shinn requested a continuance in accordance with S.C. Code Ann \\u00a7 20-7-1323(c) to enable her to produce evidence. The statute mandates the court grant a continuance at the request of the obligee (Shinn). The court erred in not doing so.\\nIV.\\nShinn asserts that the family court made the following findings of fact that are unsupported by the evidence: (1) that Kreul was not in arrears in the payment of child support; (2) that Kreul was paying support directly to the child and that these payments satisfied Kreul's support obligation; and (3) that Shinn's purpose in filing her action in the Iowa court was to make it impossible for Kruel to defend.\\nShinn presented Iowa court records, and an affidavit stating that no child support payments had been made since July 13,1990. The affidavit also showed a total arrearage as of November 27,1990 of $1732.00. Kreul offered no evidence but only argument of counsel. Findings of fact by the family court must have evidentiary support. Fontaine v. Peitz, 291 S.C. 536, 538, 354 S.E. (2d) 565, 566 (1997). A court cannot consider facts appearing only in argument of counsel. See Gilmore v. Ivey, 290 S.C. 53, 58, 348 S.E. (2d) 180, 184 (Ct. App. 1986). Thus, the family court erred in finding Kreul was not in arrears.\\nS.C. Code Ann. \\u00a7 20-7-1329(b) (1976), as amended, states that \\\"[t]he law of the jurisdiction which issued the support order shall govern . (1) the interpretation of the support order entered under \\u00a7 20-7-1321, including amount, form of payment, and the duration of support... (3) the definition of what costs, in addition to the periodic support obligation, are included as arrearages which are enforceable by income withholding. . . .\\\"\\nAccordingly, the trial judge erred by failing to consider Iowa law as dispositive as to whether Kreul would receive credit for payments made directly to his daughter. The Iowa court issued its \\\"Order for Mandatory Income Withholding\\\" on October 8,1990. This order, which was submitted by Shinn at trial, is controlled by Iowa Code \\u00a7 598.22 and 598.22A. Child support payments made to persons \\\"other than the clerk of the district court and the collection services center do not satisfy the support obligations created by the orders or judgments. . . .\\\" Iowa Code Ann. \\u00a7 598.22 (West 1992). However, this provision is limited by \\u00a7 598.22A, which provides that for all support orders entered after July 1, 1985, \\\"the clerk of the district court or collection services center shall record a satisfaction as a credit on the official support payment record if its validity is confirmed by the court upon sub mission of an affidavit by the person entitled to receive the payment, after notice is given to all parties.\\\"\\nWe, thus, reverse the trial court's holding that Kreul was not in arrears in his child support payments. On the record before us we cannot determine the amount of the arrearage, and remand to the family court that question. On remand, the trial court is authorized to take testimony and receive affidavits to determine the amount of the arrearage in accordance with the guidance provided in this opinion. It is also authorized to consider whether under Iowa law the husband should be credited with any of the payments allegedly made directly to the daughter.\\nThe family court's finding that Shinn's purpose in filing her action in the Iowa court was to make it impossible for Kreul to defend, although unsupported by the evidence, does not prejudice Shinn.\\nV.\\nBecause we have concluded that the family court was in error in the particulars noted above, we do not consider Shinn's final argument that the family court had no power to make findings of fact once it determined that the Iowa court decree was void for lack of personal jurisdiction.\\nWe reverse and remand for further proceedings consistent with this opinion.\\nReversed and remanded.\\nShaw and Bell, JJ., concur.\\nThe family court found that while the 1983 order had made provision for extension of support beyond the child's 18th birthday, the modified order did not specifically address facts which supported this extension.\\nThe identity of the obligor was not an issue at trial.\\nAt the hearing, respondent's counsel stated: \\\"We submit, your Honor, that Mr. Kreul is obligated to pay child support to Ann, if she is in college, to the tune of three hundred dollars per month, by virtue of the 1983 decree, which we admit is a valid decree.\\\" Kreul acknowledged that he had continued to pay $300.00 per month directly to his daughter although he had received no proof, despite demands made to Shinn, of the daughter's status as a student. The family court judge found that the daughter \\\"is now a student in the state of Florida.\\\"\\nKreul offered no evidence to challenge the increase in support or the amount of the arrearage, but only the argument of his counsel.\\nThe family court credited direct payments of $300.00 per month made by Kreul to his daughter against the amount of the arrearage. Because it considered the Iowa order of March 1,1990, which modified the child support obligation from $300.00 to $433.00 per month, invalid, it did not consider the additional $133.00 per month in determining the amount of Kruel's arrearage.\"}"
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diff --git a/sc/8484073.json b/sc/8484073.json
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+"{\"id\": \"8484073\", \"name\": \"Thomas Dean, endorsee, vs. George Leonard, Executor of Wm. Leonard\", \"name_abbreviation\": \"Dean v. Leonard\", \"decision_date\": \"1814-11\", \"docket_number\": \"\", \"first_page\": \"462\", \"last_page\": \"464\", \"citations\": \"1 Tread 462\", \"volume\": \"6\", \"reporter\": \"South Carolina Law Reports\", \"court\": \"Constitutional Court of South Carolina\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T23:42:39.399016+00:00\", \"provenance\": \"CAP\", \"judges\": \"Justiees Smith, Gbimke and Colcock concurred.\", \"parties\": \"Thomas Dean, endorsee, vs. George Leonard, Executor of Wm. Leonard.\", \"head_matter\": \"Columbia, November Term, .1814.\\nThomas Dean, endorsee, vs. George Leonard, Executor of Wm. Leonard.\\nTaylor, for the \\\\ Motion.\\n{Yancy, & Whitfield, Contra.\\ntiie decree on a sum-oessl after it had passed, and on the se- \\u2022 cond day jn court, /where no hadbeen filed, app ears to be not on-UrTbft'1\\\" tursdic-1\\u00ae tion of the court ; unless there of fraud or mistaice to trArinUb It,\\nConstitutional Court of Appeals. Dec. 1815.\\nMotion to set aside a decree on Sum. pro. &c.\", \"word_count\": \"585\", \"char_count\": \"3220\", \"text\": \"Brevard, J.\\nThe defendant was called on by the process to file his defence, on or before the first day \\u00b0t the court. The plaintiff after the first day 0f the court, had a right to consider the defendant\\n. . in default, and dismiss his witnesses, if he had any attending, to disprove any defence he might expect the defendant to set up. . At any rate, after a decree had passed in his favour, he could not be ex- , , . \\\" . pected to be ready to controvert a defence aiter-wards made. To open the decree after it had passe\\u00a3] ant} on \\u00bf\\u00a1-\\u00a1e second day of court, in a case whee ' * no defence had been filed, appears to me not only irregular, but beyond, the discretion of the court, Unless there should be some strong ground of fraud Or mistake to warrant it. It is not competent for this court, I think, from what appears before us, to undertake to say that justice has been done, .merely because from what appears we cannot pretend to say that injustice has been done. Justice may, or may not be done for any thing I can clearly know. The defendant may have had a sufficient defence, or the plaintiff might (if he had not been surprised) have been able to overthrow the defence by contrary evidence. I think the motion ought to pre-\\nJustiees Smith, Gbimke and Colcock concurred.\\nNott, J.\\nI shall give no opinion as to the regularity of the proceedings. The plaintiff has no^ alleged that he was surprised by letting the defendant make his defence the second day of court, and after he had obtained a decree: nor does he complain of any error in the decree. I conclude, therefore, that justice has been done. He comes then to ask the aid of this court to do injustice: to give him the benefit of a legal advantage, which he had obtained contraiy to equity and good conscience. I will lend him no assistance in such a case.\\nLord Mansfield says \\\" a new trial ought to be,, granted to obtain real justice, and not to gratify litigious passions on every point of summum jits,H and cites a number of cases where the verdicts were against evidence, and the strict rule of law; but the court would not give a second chance of success to a hard action or unconscionable de-fence. (2 Morg. Essays, 54.) Again, it does not follow by necessary consequence) that there must always be a new trial in till cases where the verdict is contrary to the evidence 5 for it is possible that the verdict may be on the side of justice and the real merits of the case. (Derby vs. Dutchess of Mazarine, 2 Salk. 646.)\\nJustice Nares says, (i The court never granted a new trial when they clearly see that the merits have been fully and fairly tried.\\\" 2 Morgan, 113. This case it appears to me, has been fully and fairly tried ; and I am, therefore, against granting anew trial.\"}"
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diff --git a/sc/8485229.json b/sc/8485229.json
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+"{\"id\": \"8485229\", \"name\": \"George Sawyer vs. Jacob Leard\", \"name_abbreviation\": \"Sawyer v. Leard\", \"decision_date\": \"1855-05\", \"docket_number\": \"\", \"first_page\": \"267\", \"last_page\": \"272\", \"citations\": \"8 Rich. 267\", \"volume\": \"42\", \"reporter\": \"South Carolina Law Reports\", \"court\": \"South Carolina Court of Appeals\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T22:37:16.335762+00:00\", \"provenance\": \"CAP\", \"judges\": \"Wardlaw, Withers, and M\\u00fcNRO, JJ., concurred.\", \"parties\": \"George Sawyer vs. Jacob Leard.\", \"head_matter\": \"George Sawyer vs. Jacob Leard.\\nId trespass quare clausum fregit, the testimony of the sheriff that he did Dot levy on the land in dispute, will not be received to contradict the terms of his own deed and the entry of his levy.\\nBEFORE O\\u2019NEALL, J., AT LEXINGTON, MAY, EXTRA TERM, 1855.\\nThe report of his Honor, the presiding Judge, is as follows:'\\n\\u201c This was an action of trespass, quare elausum fregit, in which the title of the plaintiff to the land as opposed to that of one Samuel Crafts, and the right of the defendant to cut the timber on the land of the said Samuel Crafts, became necessary to be investigated.\\n\\u201c The land in dispute was once the property of John D. A. Murphy. He took the benefit of the bankrupt law of the United States, and M. H. Pooser was appointed his assignee on the 11th March, 1843.\\n\\u201c Pooser, in 1844, conveyed a large tract of land, embracing within its boundaries two hundred acres, in dispute, to O. B. Hilliard, and Hilliard conveyed, on the 1st August, 1844, the same land to C. B. Northrop. Neither of these deeds was recorded until September, 1851.\\n\\u201c In the meantime, Pooser, without styling himself assignee, on the 15th September, 1848, sold and conveyed the two hundred acres of land in dispute to Michael Sharpe, and the deed was recorded 23d November, 1850. On the 15th February, 1851, Michael Sharpe sold and conveyed the same to Samuel Crafts, and on the 27th March, 1851, that deed was recorded. Both Sharpe and Crafts had actual possession of the land in dispute under each of their deeds. In the last deed from Sharpe to Crafts, the right to cut the timber on the land was reserved to M. H. Pooser.\\n\\u201c It became necessary to sell the land and all the property of J. D. A. Murphy, which had been conveyed to Hilliard and Northrop, and which had remained in the possession of the assignee, Pooser. Accordingly, .on the first Monday in May, 1852, as the agent of Northrop, and under the levy of various executions, one of which, to wit: Robinson and Caldwell\\u2019s, was older than the deed to Sharpe, Isaac Yansant, Esq., Sheriff of Lexington, sold a tract of land containing five thousand two hundred acres, and on the 18th of the same month, Northrop and himself conveyed it to Sawyer, the plaintiff, who is in actual possession of a part of the land conveyed to him, but between two and three miles from the land in dispute, of which Crafts was in possession before the sale, at the time it took place, and when Leard cut the timber, the cause of this action. The description in the deed to Sawyer, and in the Sheriff\\u2019s written levy on the execution covers the land in dispute. The advertisement clearly shews that it was not intended to sell the land in dispute. Tbe timber privilege on the land was advertised and sold to Northrop before the land to Sawyer was sold. Northrop transferred his purchase of the timber privilege to Leard, and under this right he cut the timber, for which this action was brought, in a clearing made by Crafts, and of which he (Crafts) had actual possession.\\n\\u201cThe Sheriff, Yansant, was offered, to prove that he did not levy on the land in dispute. I thought this was competent. It was not to alter, contradict or vary his deed. It was to shew he had no authority to sell the land in dispute. He proved most distinctly and clearly that he never levied on the land in dispute.\\n\\u201c I was of opinion, and so told the jury, that the deeds of Hilliard and Northrop, not recorded within six months, and not recorded until after the deeds of Sharpe and Crafts were recorded, could not prevail over ,the deeds to Sharpe and Crafts, which were recorded. So, too, I thought the fact that Pooser in his > deed to Sharpe did not recite his character of assignee could not help the plaintiff.\\n\\u201c The fact whether Yansant was right in stating that he did not levy on the land was left to the jury. They found for the defendant.\\u201d\\nThe plaintiff appealed, and now moved this Court for a new trial on the grounds :\\n1. Because his Honor, the presiding Judge, erred in admitting the testimony of Isaac Yansant, Sheriff, to contradict the record of the levy made by him as Sheriff on the tract of land on which the trespass was committed, and the deed of conveyance made by him and C. B. Northrop to the plaintiff.\\n2. Because his Honor, the presiding Judge, erred in charging the jury that the conveyance of Isaac Yansant, Sheriff, and 0. B. Northrop, to the plaintiff, does not convey the timber sold by the former at Sheriff\\u2019s sale, and purchased by the said C. B. Northrop.\\n3. Because his Honor erred in holding that the deed of M. H. Pooser to Michael Sharpe, took precedence of the deed made by him as assignee of J. D. A. Murphy in bankruptcy, to O. B. Hilliard, although the latter deed was executed by him in the execution of his trust more than four years before the former.\\nBoozer, Bair, for appellant.\\nBesaussure, contra.\", \"word_count\": \"1637\", \"char_count\": \"9110\", \"text\": \"The opinion of the Court was delivered by\\nGlovee, J.\\nThe Circuit Judge admitted the Sheriff to prove that he did not levy on the land in dispute, and the first ground of appeal submits that this contradicted the levy made by him as Sheriff, and also the deed executed by him and Northrop to the plaintiff. It is conceded that both the entry of the levy by the Sheriff and his deed embrace the land in dispute.\\nWe would not, without qualification, declare that a Sheriff shall not be permitted to correct mistakes in his entry of levy, even in his Sale Book. The Act of 1839, (11 Stat. 26, sec. 6,) directs him to make an entry of all his levies, intending to preserve a permanent memorial of them, not only for his direction, but for the benefit of all parties interested. Before he has conveyed the property sold to a purchaser, he may amend his entry, and make it conform to the truth; but it may prove dangerous in practice to permit such amendment after he has executed a deed conveying the property, or to permit parol evidence to explain it, and thereby contradict his deed.\\nT-he Sheriff proved that he never levied upon the land in dispute, and if this contradicted, altered or added to his deed, it was inadmissible.\\nIn ascertaining the intention of a party, which must control in the construction of his deed, we must collect it from the language of the deed itself, and evidence should not be admitted to explain, unless by the terms of the deed such intention cannot be dispovered without resort to other evidence \\u2014 or where an ambiguity has been raised by parol, it may be removed by parol. Does the evidence of the Sheriff, received in this case, contradict or vary his deed ? The levy and deed embrace five thousand two hundred acres, and he was pert\\u00ediitted to prove that he never levied on the land in dispute, which constituted two hundred acres of the land described in the plaintiff's deed. This is a variance, and manifestly contradicts a deed by which the quantity is clearly set out, and without any such ambiguity as requires explanation. If the Sheriff's deed had embraced all the land which had been conveyed to Hilliard and Northrop, it would be competent to show by parol how much had been conveyed; but it would not be competent to shew that a part and not the whole was intended. (Barkley vs. Barkley, 3 McC. 269.)\\nIn Locke vs. Whiting, (10 Pick. 279,) it was held, that where a mortgage deed purported to convey the whole estate, parol evidence is not admissible to prove that the deed was intended by all the parties to convey a moiety only, and that the whole was included by a mistake of the scrivener. \\u2022\\nThe law requires that conveyances of real estate shall be by deed, and this not only furnishes the evidence of the agreement between the parties, but, when recorded, the publie is advertised and learns the intention of the parties from an examination of their deeds in the Registry.\\nIt may be shewn that the Sheriff had no execution justifying his levy and sale, and, therefore) no authority to sell; as this contradicts only a recital in his deed, which is not even prima facie evidence of his official authority. Here the evidence is offered to shew that he sold less than his deed specifically conveys, and if admissible, it may be competent to shew that his levy embraced no land described in his deed. Where there is fraud or mistake, and the facts authorize it, a deed may be declared void or set aside pro tanto; but the fact of such mistake should not be enquired into in a collateral way, and thereby contradict the express terms of a deed.\\nShould a Sheriff sell or convey land not subject to the lien of a judgment, the title of the owner is not necessarily defeated by such sale, nor is he without a remedy. In this case, the property is described without any ambiguity, and the intention of the Sheriff is manifest, and should parol proof be admitted which contradicts his deed, without any allegation of fraud, it would violate a safe and well-established principle of evidence.\\nIt is not necessary to notice the other grounds taken in the appeal or the argument.\\nMotion granted.\\nWardlaw, Withers, and M\\u00fcNRO, JJ., concurred.\\nO'Neall and Whitner, JJ., dissented.\\nMotion granted.\"}"
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+"{\"id\": \"8486022\", \"name\": \"Charles Russell, for his assignee, E. L. Adams, vs. Tunno, Pinckney & Co.\", \"name_abbreviation\": \"Russell v. Tunno, Pinckney & Co.\", \"decision_date\": \"1858-01\", \"docket_number\": \"\", \"first_page\": \"303\", \"last_page\": \"322\", \"citations\": \"11 Rich. 303\", \"volume\": \"45\", \"reporter\": \"South Carolina Law Reports\", \"court\": \"South Carolina Court of Appeals\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T19:43:12.726335+00:00\", \"provenance\": \"CAP\", \"judges\": \"Wardlaw and G-lover, JJ., concurred.\", \"parties\": \"Charles Russell, for his assignee, E. L. Adams, vs. Tunno, Pinckney & Co.\", \"head_matter\": \"Charles Russell, for his assignee, E. L. Adams, vs. Tunno, Pinckney & Co.\\nLaw of Nations \\u2014 Personal Property \\u2014 Foreign Assignment \\u2014 Contract\\u2014Attachment\\u2014Debtor and Creditor \\u2014Assignment\\u2014Evidence\\u2014Subscribing Witness.\\nThe right to sel}, transfer, and dispose of, personal property, belongs to the person of th$ owner, and such sale, transfer, or disposition, if valid where the contract is executed and according to the lex domicilii, is valid wherever the property is.\\nA voluntary assignment of personal property by a foreign debtor for the benefit of creditors, executed abroad, if valid there and according to the lex domicilii, takes precedence over liens by attachment subsequently taken out in the Courts of this State- \\u2014 the property being here at the time both of the assignment and the service of the attachment.\\nNon compliance with the provisions of the Act of 1828, in relation to assignments for the benefit of creditors, does not make the assignment itself void.\\nThe Act of 1828, relates only to domestic and not to foreign assignments for the benefit of creditors.\\nWhere the subscribing witness to an instrument is dead or beyond the jurisdiction of the Court, mere proof of his handwriting is insufficient to authorize the sending of the instrument to the jury.\\nThe subscribing witnesses to an assignment were R. & M. both of whom were absent from the State. R., examined by commission, testified, that he remembered nothing about the transaction ; he recognized his own signature and believed the name of M. to be his signature, but did not know the assignor. The signature of M. was otherwise proved :\\u2014 Held, that the proof of the assignment was insufficient.\\nBEFORE M.UNRO, J., AT CHARLESTON, JUNE TERM, 1857.\\nThe report of his Honor the presiding Judge, is as follows:\\n\\u201c This was an action of assumpsit against defendants, as acceptors, upon the following bill of exchange:\\n\\u201c $2,383 07. MadisoN C. H., Fla., Jan. 19, 1854.\\n\\u201c Ninety days after date pay to tbe order of Charles Russell, twenty-three hundred and eighty-three 60-100 dollars value received, and charge the same to\\n\\u201cJOHN C. McGEHEE.\\n\\u201c To Messrs. TuNNO, PINCKNEY & Co., Charleston, S. C.\\n\\u201c Endorsed, Charles Russell.\\n\\\"Plea, non-assumpsit.\\n\\u201cPlaintiffs proved that Charles Russell, the nominal plaintiff, is the absent debtor of Joseph E. Adger, survivor, and Bancroft, Betts & Marshall, attaching creditors.\\n\\u201c That the bill sued upon was given by Charles Russell, the absent debtor, to A. P. Miller, a clerk of Bancroft, Betts & Marshall, who journeyed with him from Florida, with instructions to present it for acceptance and to keep it for him (Russel) until his arrival in Charleston.\\n\\u201c Miller presented it immediately on his return to Charleston and it was accepted on or about 28th Januarj\\u2019-, 1854, and then by him delivered to George Carey, the bookkeeper of Bancroft, Betts & Marshall for safe keeping.\\n\\u201cCharles Russell never came to Charleston, and Joseph E. Adger, survivor, sued out an attachment on the 14th March, 1854, which was served on A. P. Miller, and Bancroft, Betts & Marshall,, who made their returns, admitting possession of the draft under the circumstances.\\n\\\" On the 24th May, 1854, Bancroft, Betts & Marshall sued out their attachment, which was served on A. P. Miller, and the present defendants, when Miller made a similar, return.\\n\\u201c On the 4th August, 1854, an order was made by Judge Munro in both cases appointing Ettsel L. Adams, assignee, under the Act of Assembly 1844, on the usual terms, which were complied with.\\n\\u201c The defence set up was\\u2014\\n\\u201cFirst. That the bill of exchange sued, upon was a mere accommodation to the nominal plaintiff, Bussell, and drawn for a special purpose by the drawer, John C. McGehee, which Bussell had not accomplished, and payment had been countermanded by the drawer.\\n\\u201cNext. That Bussell, the plaintiff, had assigned the said bill of exchange to the drawer, John 0. McGehee, prior to the issuing of the attachments.\\n\\u201cNo proof was offered by the defendants as to the consideration of the bill of exchange.\\n\\u201c To prove the assignment relied on, the defendants counsel produced a commission executed in New Orleans, containing the testimony of three witnesses, L. F. LaBoque, one of the subscribing witnesses, and George Bareshide, and J. M. Breedlove, to which the assignment was annexed. The testimony of Louis LaBoque was as follows :\\n\\u201c To first interrogatory he answered: I don\\u2019t know any of the parties to this suit. To the others as follows:\\n\\u201c Second Interrogatory. Look at the deed purporting to be a deed of assignment bearing date the 8th day of February, 1854, from Charles Bussell to John 0. McGehee, and say whether you saw the said Charles Bussell sign his name to the said deed, and whether the name Charles Bussell thereto signed is in his own hand-writing, and the seal thereto affixed or acknowledged, and the name written by him in your presence, and whether the said Charles Bussell did not deliver the said deed, and in what way, and whether the names of William Monaghan and L. LaBoque are not in the hand-writing of the said witnesses, and written in your presence ?\\n\\u201cAnswer. I don\\u2019t remember anything about this transaction. I signed my name as a witness. It is in my hand-writing, and I believe the signature of Monaghan to be genuine.\\n\\u201c Third Interrogatory. After the said Charles Bussell had signed his name, and the witnesses had signed, what was done with the said deed ? Look at the notarial certificate thereto annexed and say whether the said certificate is under your hand and notarial seal, and whether the facts therein stated are correct ?\\n\\u201c Answer. I don\\u2019t remember what was done with the deed. The certificate annexed I believe to be in the hand-writing of Monaghan and the signature and seal thereto to be genuine.\\n\\\"Fourth Interrogatory. Do yo.u know anything more which may tend to show that the deed hereto shown you is authentic ? If so, declare.\\n\\u201c Answer. I was clerk for Monaghan for nearly a year, and have seen him write very often, daily whilst I was in his employ.\\n\\u201c To Cross Interrogatories he answers as follows:\\n\\u201c First Cross Interrogatory. If in answer to the first interrogatory in chief you say you know the plaintiff, Charles Bussell, state when and where, and how you first became acquainted with him, and especially how long you had known him.\\n\\u201c Answer. I don\\u2019t know the plaintiff.\\n\\u201c Second Cross Interrogatory. If you answer the second interrogatory affirmatively and say that Charles Bussell did deliver the deed therein mentioned, you will please say to whom he delivered it? Was the assignee in the said deed named (John C. McGehee) present, or was any one present who was authorized to represent him, or to accept the said deed for him ?\\n\\u201c Answer. I don\\u2019t remember anything about this deed.\\n\\u201c Third Cross Interrogatory. If you answer the third interrogatory in chief affirmatively, you will please say what you did with the said deed after having annexed to it your notarial certificate ? To whom did you hand the said deed and certificate? Did you not hand or give it, or put it into the possession of Charles Bussell himself? And did not the said Charles Bussell take the said deed away with him ?\\n\\u201c Answer. I have answered this above. I don\\u2019t remember.\\n\\u201c Eourtb Cross Interrogatory. \\\"Where did Charles Russell go to after executing the said deed ? Did he remain in New Orleans, and how long did he remain there ? Is he still in New Orleans.\\n\\u201c Answer. I don\\u2019t know anything about him.\\n\\u201c Fifth Cross Interrogatory. If yon know any other matter or thing favorable to the present real plaintiff, Ettsel L. Adams, state the same as fully as if thereto specially interrogated ?\\n\\u201c Answer. I know nothing further in the matter.\\n\\u201c The two other witnesses examined under this commission testified that they knew nothing of Charles Russell or of the execution of the assignment, but both had been clerks of the notary, William Monaghan, were familiar with his signature, and recognized his signature as a witness to the assignment produced and annexed to the commission. They also testified that Monaghan had left New Orleans clandestinely, and had gone whither they knew not.\\n\\u201c No other testimony was produced by the defendants.\\n\\u201c The plaintiff\\u2019s counsel objected that the testimony offered in proof of the execution of the assignment was not sufficient to allow it to go to the jury, especially as the signature of Charles Russell, the assignor was not proved. I thought that proof of the signature of an attesting witness was testimony sufficient to authorize me in submitting the assignment to the jury for their consideration, and so ruled.\\n\\u201c The plaintiff\\u2019s counsel insisted, first, that the assignment was not proved. 'Next, that there was no proof of the Jime of its delivery, and lastly, that it did not transfer the bill of exchange which had been attached and upon which this action was brought.\\n\\u201c I left the proof of the execution and delivery of the assignment of Charles Russell, to the jury, and instructed them that if satisfied that the assignment had been made and delivered before the attachments were served, that I had no doubt tbe bill of exchange sued on, passed under tbe assignment, and tbe defendants should have a verdict.\\u201d\\nThe plaintiff appealed and now moved this Court, to set aside the verdict which was for the defendants, and for a new trial, upon the grounds:\\n1. Because the writing offered as an assignment made by the plaintiff, Charles Bussell, to John 0. McGrehee, was not proved to be such and should not have been allowed to go to the jury as evidence, at least without proof of the signature of Charles Bussell.\\n2. Because even if the said instrument had been proved to be the assignment of Charles Bussell, it did not transfer the bill of exchange sued on in this case to John C. McGrehee, but the said bill of exchange was liable to the attaching creditors of Charles Bussell.\\n3. Because there was no proof whatever of the time of the execution of the said assignment, nor of its delivery at any time prior to the issuing and service of the attachment against Charles Bussell at the suit of Joseph E. Adger, survivor, when such proof was necessary to supersede the lien of the attaching creditors, and could have been offered by the defendants if in truth the execution and delivery has been priijr to the attachment.\\nMcOrady, for appellant.\\nOn first ground. 1. The testimony by commission proved only the signature of the absconding witness, Monaghan. Bull, N. P. 171. \\u201cIf the defendant plead non est factum, the plaintiff must prove the execution of the deed and proof that one who called himself B. executed, is not sufficient if the witness did not know him to be the defendant,\\u201d and cites the case of Marion vs. Bates. Hill, 4. Geo. 2, wbicb is not reported. Parltins vs. Hawkshaw, 2 Stark. R. 239, 3 E. C. L. R. 393. The subscribing witness to a bond stated that he saw it executed by a person who was introduced as Hawkshaw, but he could not identify him. Holroycl, J., citing Bul. N. P., deemed evidence as to identity to be requisite, and non-suited plaintiff.\\n2. Proof of the signature of subscribing witness is not sufficient without proof of signature of obligor or grantor. PlunTcet vs. Bowman, 2 McO. 138.\\nOn second ground. It must be observed that there was no proof of the endorsement of Charles Eussell, offered either by the plaintiff or defendant.\\n1. The assignment, if proved, did not transfer the legal title to the bill of exchange. 1 Selw. N. P., p. 297. Story on Bills of Ex., \\u00a7 201. Note 3 to same. At most then McGehee had only an equitable interest.\\n2. The bill of exchange was liable to the attaching creditors in preference to the assignment. This is an assign-, ment by an insolvent for the benefit of creditors made out of this State, to an assignee living out of the State. Two cases in our own books may be cited as concluding this question, viz: West vs. Tapper and Kimball, 1 Bail. 193, and Greene vs. Moiory, 2 Bail. 163. But in neither of them was the point now intended to be made, brought to the view of the Court. Assignments under Bankrupt Laws do not prevail over subsequent attaching creditors. Tophams, Assignee, vs. Chapman, 1 Mill, 283; Story\\u2019s Confl. Laws, sect. 410 to 415. Even a voluntary assignment before the action or effect of a Bankrupt Law, will not prevail against a subsequent attachment. Crowder, Clough & Co. ads. Pobinson, 4 McC. 519. Nor will a voluntary assignment made by the Bankrupt after the effect of the Bankrupt Law, have any greater effect. Holmes vs. Benison, 20 John. 229 at 267; Story Comfit. Laws, sec. 418. \\u201c Neither is it true that even the voluntary conveyances of parties in all cases are to be held valid where they are prejudicial to tbe rights and remedies of our own citizens.\\u201d Story Confit. Laws, sec. 416. In Massachusetts, assignments of insolvents for benefit of creditors were not allowed to prevail over subsequent attaching creditors, while the Courts of that /State had no power to make the trustee or assignee account. Widgery vs. Haskell,' 5 Mass. 144 at 154. So also in Maine it was pointedly held, \\u201cthat a general assignment made by an insolvent debtor, in another jurisdiction, should not be permitted to operate upon the property in that State, so as to defeat the attachment of a creditor residing there.\\u201d Fox vs. Adams, 5 Grreenl. E. 245. The same doctrine, it is said, has been held in Louisiana. 14 Martin\\u2019s Eep. p. 93-99, in the case of Oliver vs. Townes. Now, the Act of Assembly, entitled \\u201cAn Act regulating assignments of debtors,\\u201d passed 1828, (6 Stat. 365,) secures certain rights to creditors, under general assignments, which are unavailing where assignments are made out of the State. Upon principle and authority, then, such assignments out of the State should not be allowed to prevail against our attachment laws. Ingraham vs. Oeyer, IS Mass. 146 at 147, 148.\\nOn third ground. 1. There was no proof of the time of execution. We have no proof relative to the assignment, but the proof of the handwriting of the subscribing witness, Monaghan, and it does not appear that he knew Russell. His certificate is no proof, as there is no proof that he was a commissioner of Florida. The certificate of Sessions is no authentication; it should itself have had the certificate of a Judge. 2. There was no proof of delivery before the service of Adger\\u2019s attachment. The certificate of Record is dated 4th April, 1854, while the attachment was served 14th March, 1854. And there is no proof of notice to Adger, or even to Bancroft, Betts & Marshall, prior to their attachment of 24th May, 1854. Now, if the assignment was really executed in New Orleans on the day of its date, and had been sent by mail, where is the letter accompanying it? Let it be produced, and we will see whether it did not contain stipulations or conditions apart from the assignment. If sent by a private hand, the witness should be produced. If the assignee, who was a creditor, hesitated to accept it, then during his hesitation the creditors here had a right to attach. Crosby vs. Hillyer, 24 Wend. 280; 6 Pick. 341; 5 Cra. 299.\\nJPetigru, contra,\\ncited 3 How. II. S. 483; .6 Binn. 50; 2 Green. Ev. \\u00a7 295; 8 Pick. 143; 1 Johns. Ga. 230 ; 3 Johns. E. 470 ; 2 East, 250; 6 Pei 137; 2 Bail. 141.\", \"word_count\": \"6412\", \"char_count\": \"37250\", \"text\": \"The opinion of the Court was delivered by\\nWITHERS, J.\\nCharles Eussell assigned property, real and personal, including choses in action, he and the assignee being domiciled in Florida, which was the situs of the bulk of the property; and among the choses in action which the terms of the deed will embrace, is a bill of exchange, drawn upon and accepted by the defendants, in favor of Eussell and held for him here. We shall assume, for the present, that the deed was duly executed in New Orleans, at the date it bears, which is February 8, 1854, or, at any rate, prior to the service of attachments by certain creditors here, on the 14th of March and the 24th of May, 1854. Upon this case a question is raised, whether the right of the assignee, though prior in date, according to the force and effect of the assignment, shall yield to the liens of the attaching creditors, though posterior in date.\\nIt is to be premised that such an assignment as this would be perfectly consistent with our law, if executed here in due form; and we, of course, assume that it is agreeable to the law of Florida, until the contrary appears. It is also to be observed, that the distinction is clear and fundamental, upon the question now in view between a voluntary disposition of personal effects executed in another jurisdiction, and including certain effects here, and a disposition of such property in invitum, by operation of law. In tbe latter case tbe operation of tbe foreign law would not.be recognized as regulating tbe disposition of an insolvent's effects in South Carolina, upon tbe general principle that such law is necessarily intra territorial. Tbe position is illustrated by tbe case of Crowder, Clough & Co., ads. Robinson, 4 McC. 519. In tbe former case, however, the rule is widely different, where the act of tbe owner gives tbe law of disposition. It was stated in tbe case of Sill vs. Worswick, 1 H. Bl. 690, as follows: \\\"It is a clear proposition not only of tbe law of England but of every country in tbe world where law has tbe semblance of science, that personal property has no locality. Tbe meaning of that is, not that personal property lias no visible locality, but that it is subject to that law which governs tbe person of tbe owner, both with respect to tbe disposition of it, and with respect to tbe transmission of it, either by succession or by the act of tbe party. It follows the law of tbe person. Tbe owner in any country, may dispose of bis personal property\\\" \\u2014 per Loughborough. In Doe d. Birtwhistle vs. Vardill, 5 Barn. & Cresw. 438-52, Chief Justice Abbott said, \\\"personal property has no locality. And in respect to that it is not correct to say, that the law of England gives way to the law of tbe foreign country; but it is part of the law of England that personal property should be distributed according to tbe jus domiciliiP \\\"Tbe same doctrine (says Judge Story) has been constantly maintained, both in England and America, with unbroken confidence and general unanimity.\\\" Conflict of Laws, sec. 380.\\nIt is upon such basis that our decisions have uniformly proceeded in recognizing a valid prior voluntary assignment of personal property, executed in another jurisdiction, as overriding a subsequent attachment on the same property here.\\nIt is argued, however, that voluntary conveyances of parties abroad are not to be beld valid in all cases, as where they are prejudicial to the rights and remedies of our own citizens; and it is suggested, that this consideration has been overlooked, bec\\u00e1use not brought to the attention of the Court, when it has been decided that they should outrank the posterior liens under our law of foreign attachment. There are such exceptions, certainly, to the general rule of lex domicilii, (being part of the jus gentium,) which general rule is, that the law of the domicil should determine the validity of every transfer, alienation, or disposition, made by the owner of his goods and chattels and choses, whether it be inter vivos, or post-mortem. These exceptions are founded upon the nature of the particular property, the transfer of which is regulated by local laws. Among such exceptions have been mentioned contracts respecting public funds and stocks of incorporated companies. \\\"But (says Mr. Story) contracts to transfer such property would be valid if made according to the lex domicilii of the owner, or the lex loci contractus, unless such contracts were prohibited by the lex rei sites.\\\" Conf. Laws, sec. 383. It is undeniable, as was said by O. J. Tilghman, in Moreton vs. Milne, 6 Binn. 361, that every country has the right of regulating the transfer of all personal property within its* territorial limits; but when no positive regulation exists, the owner transfers it at his pleasure.\\\"\\nIt is very questionable whether Courts, drawing authority only from the common law, are warranted in establishing any such \\\"positive regulations;\\\" thus qualifying the general and wholesome rule of comity which recognizes, upon the authority of the well-settled law of Nations, the lex domicilii, which itself is founded upon the nature of personal property, as interpreted by the common law of England, as well as the civil law. It becomes the more doubtful when we remember that this law of domicil, acting upon movables transitory in tbeir nature, subserves tbe general convenience of nations, and equally affects tbe subjects and interests of all, and especially commercial sovereignties, wbicb is so well set forth by Judge Story, in bis 9th chap, of tbe Conflict of Laws. It is far safer to leave any contravening positive regulation to tbe wisdom and discretion of tbe law-making power, who alone should resolve bow far tbe just rights and interests of our citizens may claim interposition. We think, therefore, that tbe course of our decisions upon tbe contest between assignments abroad and our attachment law here, is by no means without solid foundation, if tbe rule adopted was properly open to debate. Nor are we disposed to yield to contrary views found in decisions in Louisiana, Massachusetts and Maine. Such views, if generally adopted, would lead to tbe sequestration, by each sovereignty, of tbe goods of a foreigner or of a citizen of another of these States, found within his territory; and it is so doubtful, to say the least, whether that consequence could be for the benefit of any people, that we should await the command of the supreme power before we would move in that direction. Besides, we observe, that in Louisiana the Court thought that it discovered a peculiar necessity for its position in the circumstances of the commerce of New Orleans, and, like the Court of Massachusetts, invoked the rule of law said to prevail in each, that actual delivery of personalty, not symbolical, was requisite to complete the transfer of title, even of a ship, as in the case in Louisiana. These decisions do not seem to have won the approbation of Judge Story, as we think may be discovered in the chapter above cited. And it may be added, that in some of them the case was supposed to be varied by the question, whether the attaching creditor had notice of the assignment before he laid his lien; and the like consideration has been suggested in this argument. We are not aware that this has any influence with us.\\nWe are next presented with the position that the Act of 1828, 6 Stat. 365 \\\"Regulating assignments of debtors,\\\" is sucia a \\\"positive regulation,\\\" in tbe. sense of Chief Justice Tilghman as supersedes all assignments that cannot be conformed to the scheme of administration therein prescribed.\\nIn speaking of the assignment involved in the case Crowder Clough & Co.ads. Robinson, it was said, \\\"independently of the interest which creditors residing here may have in the property assigned, there is no question that as between the parties the assignment would be binding here as well as in England; and supposing it to have been voluntary and binding according to the laws of that country, and not inconsistent with our laws, the Courts, here, would, upon well settled principles of universal law, be bound to give it effect and operation.\\\" It is quite true, therefore, that if the assignment now in question be inconsistent with the Act of 1828, it cannot operate here at all, as against a rival creditor, our own citizen.\\nThe first clause of that Act shows that the provisions relate alone to an assignment by a debtor for the benefit of his creditors, and such is the assignment now before us. It makes it lawful for the creditors, when such an assignment is made, and they are authorized and empowered, to appoint an agent, one or more, to act jointly with the assignees, one or more; for which purpose the assignee is to call the creditors together within ten days from the execution of the assignment. The consequence for default in this respect is, that the creditors may meet together and appoint their agent who shall supersede the defaulting assignee. Any sales or transfers by the latter within the ten days specified, are declared void. Then a mode of deciding contested questions is prescribed; proceeds of the sales of the assigned property are to be deposited in bank in the joint names of the assignee and agent; they are to account before the creditors or their committee every three months; and the amount of commissions is prescribed. Such is the scheme of the Act of 1828, compressed into a narrow abstract. It seems to us, manifestly to contemplate, not tbe validity of assignments, but the administration of them, a regulation in restraint of assignee as well as agent; and a priority of right among creditors prescribed in an assignment cannot depend upon legislation having such purview only. It nowhere discloses that a non compliance with any or all of its provisions shall render the assignment itself null and void, in whole or in part, whether such default proceed from agent, assignee, or creditors, some or all. It is necessarily territorial in its scope, as much so and for the same reasons as the bankrupt or other laws, of a foreign country beyond its limits. There is also reason to contend that the intent of the Act did not reach assignments made without our limits, because the creditors are to be called together within ten days from the execution of the deed, which could scarcely have been deemed practicable in the case of an assignment in foreign parts. A majority of the amount of debts represented by the creditors shall govern in the appointment of an agent. This scheme could scarcely look to an assignment executed in another state, or country; distant it might be; to be administered there; with the bulk of the property there; all the creditors there, perhaps, save one or two; and little property here, perhaps only a chose in action. Some at least of these circumstances attend the present case. These considerations do not favor the conception that the said Act, meant either to draw to itself the administration of an assignment executed elsewhere, or failing in that, to render it void. If it could be applied to this assignment, and ought to be and is not, still the rights of creditors could not be affected however the powers and conduct of the assignee might be, unless indeed sucb non conformity be adjudged to work the nullity of the instrument of assignment, which we ' have seen it would not do in the case of an assignment wholly domestic. Nor ought so grave a consequence to rest upon inference, strained inference, being at the same time so mucb in disagreement with that doctrine of comity wbicb recognizes bere the disposition of personalty executed elsewhere and valid there; a doctrine itself founded upon a cardinal view of the nature of personalty, a comprehensive consideration of great and general interests, so frequently adopted in our own adjudications, as it has been in so many other enlightened sovereignties, and equally favored by the civil and common law, and, 'therefore,-finding its way into the jus gentium.\\nIt is not easy to see why there should be in the Act of 1828, any greater efficacy to avail a creditor here than he could find in our attachment laws. These last have repeatedly been held to be unavailing against a prior assignment abroad, valid there, and not otherwise, on its face, here ; and such decisions have been made both before and since the Act of 1828. Examples are presented in West vs. Tupper & Kimball, 1 Bailey 193 ; Green vs. Moury, 2 Bailey, 163; Mitchell and others vs. Smith, 3 Strob. 240.\\nWe do not touch the question whether an assignor abroad, who has given an \\\" undue preference,\\\" in the sense of our insolvent debtors' law, might not be met with an obstacle, if arrested here, within the period prescribed, and asking for the benefit of that law, as against a local execution creditor.\\nAs to the consideration, that the assignment in question confers upon the assignee an equitable rather than a legal title, it is enough to say, that in either case, the assignment being good, it confers the right to demand and receive payment of the debtor, though the lex fori touching the form of remedy may require the use of the assignor's name. \\\" This (says Justice Story, sec. 398, Conf. Laws,) is in perfect coincidence with the law of England and America.\\nSo much upon the ground and the argument founded on the Act of 1828. The attaching creditors are not entitled to maintain their position in respect to that Act.\\nWe come now to tbe question of tbe law of evidence\\u2014 whether there was evidence of such character as warranted the Court in placing the assignment before the jury and them in finding it well executed, and taking rank as of its date ?\\nThis question also is attended by contrariety of decision; for there is not uniformity of opinion in English or American cases, perhaps we may say not even among our own. We have, however, a rule prescribed in Plunkett vs. Bowman, 2 McO. 138, which we think it proper to follow so far forth as this \\u2014 that where a subscribing witness to an instrument is dead, or beyond the jurisdiction, something more than merely the proof of his handwriting is required before the defendant shall be held connected with the paper as maker. That the assignment in this .case came in collaterally, that is, was not the cause of action, will not present occasion to vary the rule of evidence; for in either case the question is whether the paper propounded is sufficiently proved to go to the jury, and the decision of the Court is invoked. In Edgar, admr., vs. Brown, 4 McC. 91, it was adjudged, that proof of the signature of the obligor to a bond, executed in Delaware, though no proof as to the signature of the attesting witnesses, who were not within the jurisdiction, was given, was sufficient; and this by virtue of the Act of 1802, which dispensed with the attendance of witnesses to bonds or notes, unless the defendant should swear or affirm that the signature was not his, and providing \\\" that the signature to such bond or note may be proved by other testimony.\\\" But the ruling in Edgar vs. Brown, was in conflict with Myers vs. Taylor, 1 Brev. 245, which held, that under the said Act the handwriting of the attesting witnesses should be proved as well as that of the obligor. To the same effect was the case of Paisley vs. Snipes, 2 Brev. 200, where the handwriting of the attesting witness was proved, though not called under the Act of 1802, yet it was adjudged that the signature of the maker of the note, though, by mark, must also be proved. These two last oases were in manuscript when the case of Edgar vs. Brown, was decided, and probably were unknown to the Court. In the latter case Judge Johnson did observe, \\\" I am strongly inclined to the conclusion, that the evidence was admissible on the principles of the common law\\\" \\u2014 he may be taken to have meant sufficient, that is, proof of the handwriting of the obligor merely. But he did not so rule, and placed the case upon the Act of 1802. Then we have the later case of Trammel vs. Boberts and others, 1 McM. 305, where we find this: \\\" At common law the subscribing witness must have testified in person, and in case he were beyond the reach of the Court, then other witnesses by proving his handwriting, and the signatures of the makers of the note, would furnish legal, though secondary, evidence of the same facts.\\\"\\nWhat proof have we in the present case ? Of two witnesses, one is examined and asked whether he saw Charles Russell sign the deed, whether his name thereto affixed is in his own handwriting, and the seal affixed or acknowledged by him\\u2014 whether he delivered the deed, and how. He answers, \\\"I don't remember anything about this transaction. I signed my name as a witness. It is in my handwriting, and I believe the signature of Monaghan (the other witness) to be genuine. I don't know what was done with the deed. I don't know the plaintiff. I don't remember anything about this deed. I don't know anything about Charles Russell.\\\" Other witnesses verified the signature of Monaghan as attesting the deed, and also what purported to be his certificate, in capacity of commissioner under authority of Florida, and it appeared that he had departed from New Orleans, and was not otherwise accounted for.\\nSuch was the whole proof of the execution of the assignment.\\nIt is evident that the witness examined instead of supporting rather weakened the plaintiff. He knew nothing of the identity of tbe obligor; nothing as to tbe delivery or disposition of tbe deed. He says nothing of tbe presence of the assignee. lie shook if he did not rebut such presumptions as might have arisen from proof of his handwriting merely, where that might have been accepted, and he did not even say he would not have signed the paper if he had not seen it duly executed. So that the execution of it rests solely on such inferential presumption as may arise out of the signature of Monaghan, affected more or less as different minds may view it by what the witness examined has said. In such circumstances we think our own cases teach, that the writing of Russell, the assignor, or something else should have been proved before he could be held-connected with the assignment, and the delivery (a very important point in this case) be presumed as of even date with the deed. It can be easily conceived (cases have been known indeed), that one may assume a name and palm himself off on witnesses fraudulently, while personating another and forging his name. \\u2022 Loose and facile presumptions as to delivery and the time of it, may work much injustice, especially in such cases as this. We think Plunkett & Bowman, and Trammell & Roberts, well founded, (Simms & De Graffinreid, 4 McCord, 253, may perhaps have proceeded on the ground that the instrument there was a conveyance of realty, requiring two witnesses; but there also the handwriting of both witnesses and grantor was required to be proved). There is support for our cases and the opinion we now entertain in conformity to them.\\nOne is Parkins vs. Hawhshaw, 2 Stark. N. P. 239, (3 Com. Law, 393). The witness saw a person introduced as Hawkshaw execute a bond, and he gave some description of his person but could not identify him as the defendant. Holroyd, J., nonsuited the plaintiff. In the case of Nelson vs. Whitlall, 1 Barn. & Ald. 19, Bailey, J., said, \\\"It is laid down in Mr. Phillips' treatise on Evidence, that proof of the handwriting of the attesting witness is in all cases sufficient. I always felt the difficulty, that that fact alone does not connect the defendant with the note. If the attesting witness himself gave evidence he would prove not merely that the instrument itself was executed, but the identity of the person so executing it. But the proof of the handwriting of the attesting witness establishes 'merely that some person, assuming the name which the instrument purports to bear, executed it: and it does not go to establish the identity of that person, and in that respect the proof seems to me defective.\\\" This reasoning was adopted and distinctly converted into a rule of law by the concurrence of Bailey and three other Barons of the Exchequer, in Whitlock vs. Musgrove, 1 Exch. 511. The action was on a promissory note executed by the maker using a mark. In addition to proof of the writing of the subscribing witness, some proof in addition of the identity of the party sued and the maker was held necessary. (In such a case, a mark being used, our decisions would appear to regard the proof offered to be sufficient, Bussey ads. Whitaker, 2 N. & McO., 374.) \\\" I quite agree (said Bailey) it is not necessary to prove the handwriting of the defendant; but if you do not prove that you must prove something else to connect the party sued with the instrument.\\\" Examples were suggested, as that the instrument might designate the party by residence or otherwise, and the evidence might show the correspondence of the defendant, and there may be various other means of attaining the end, prima facie. It is seen from this case that the point was long questio vexata in England, and it was conceded that Lord Tenterden, followed by Best, held the contrary opinion. But it is presumed, that the case last cited, concurred in as it was, by Lord Lyndhurst, may be-regarded as strengthening our conclusion.\\nSome evidence was necessary in addition to what was adduced on the circuit, to show the due. execution of the assignment by Bussell, as proof of his handwriting or some thing else to connect him with the instrument, before the paper could go to the jury.\\nAnd upon this ground a new trial is ordered.\\nWardlaw and G-lover, JJ., concurred.\\nWhitNer and MuNRO, JJ., thought the proof in reference to the execution of the deed of assignment by Eussell, made & prima fade case properly submitted to the jury, and their verdict should not be set aside. Upon the other point made in the case they concurred with the majority.\\nNew trial ordered,.\"}"
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+"{\"id\": \"8486146\", \"name\": \"W. F. Ervin vs. Isaac Epps\", \"name_abbreviation\": \"Ervin v. Epps\", \"decision_date\": \"1868-05\", \"docket_number\": \"\", \"first_page\": \"223\", \"last_page\": \"230\", \"citations\": \"15 Rich. 223\", \"volume\": \"49\", \"reporter\": \"South Carolina Law Reports\", \"court\": \"South Carolina Court of Appeals\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T19:38:28.020213+00:00\", \"provenance\": \"CAP\", \"judges\": \"D\\u00fcNKiN, C. J., and Waudlaw, A. \\u2022!., concurred.\", \"parties\": \"W. F. Ervin vs. Isaac Epps.\", \"head_matter\": \"W. F. Ervin vs. Isaac Epps.\\nWorlc and Labor \\u2014 Surveyor\\u2014Commissioners in Partition.\\nSemite, That the fees of a surveyor retained to survey lauds for commissioners in partition sliould He taxed as costs in tlie cause, and that he cannot charge one of the heirs or joint owner\\u2019s of the lands for his services, although such joint owner may have been active in procuring his services.\\nCommissioners in partition are entitled to reasonable compensation for their services, and should not, it seems, employ one of their' own number as surveyor, and thus enable him to charge in that capacity also.\\nA separate plat for each heir, of the parcel allotted to him, should not be made and returned into Court.\\nIn an action for work and labor, it is a good defence to show that the work was so unskilfully, carelessly or wrongly done that the employer suffered injury thereby, or that it was useless and had to be done over again.\\nA surveyor employed by commissioners in partition owned adjoining lands, and, in running the line between his own and the lands to be partitioned, a dispute arose as to the location: Held, that the surveyor when the dispute arose became interested, and could no longer act, and that charges for services afterwards rendered could not be allowed.\\nBEFORE LLOVER, L, AT WILLIAMSBURG, FALL TERM, 1867.\\nThe report of bis Honor, the presiding Judge, is as follows:\\n\\u201c The plaintiff sued in the process jurisdiction to recover for services rendered as a deputy surveyor. He was appointed, with others, a commissioner to make partition of > the real estate of Epps, and was requested by the defendant to make the necessary survey and plats. ' Plaintiff stated that he was employed five days (the number charged) in the work as a surveyor, and made one plat embracing all the land, and designating on it the share of each heir. The . defendant also requested him to make separate plats for each, if it was customary, which he did. I gave a decree for his account, except a charge for each representation on the general plat.\\n\\u2022\\u201c William Epps, one of the heirs, stated that while the survey was in progress, the plaintiff indicated a spot as the corner, common to the Epps land and his, whereas, the witness insisted that the original corner was about fifteen steps distant, and on the land then claimed by plaintiff, and that a part of the corner had been removed and the line trees had been cut. This the plaintiff denied; and I presume that it was in reference to this evidence that the defendant, in his second ground of appeal, charges the plaintiff with dereliction of duty. Whether the plaintiff failed in bis duty, involved the true position of the -corner and the correct location of the land, and in this incidental way, I would not undertake to decide these questions.\\u201d\\nThe brief contained a copy of the bill of particulars and statement, as follows:\\nBill of Particulars.\\n\\u201c Isaac Epps,\\n1866. To W. E. Ervin, Dr.\\n17th September \\u2014 To five days\\u2019 employment in surveying at $3 per day, .... $15 00\\nTo one cent per acre, for 992 acres, . 9 92\\nTo a plat for commissioners\\u2019 office, with seven representations, making eight representations, at $2.14 each, . . . 17 12\\nTo making seven plats for seven heirs, at $2.14,.14 98\\n$57 02\\n\\u201c Writ of partition issued by commissioner to divide the land of the estate of Epps, on the 1st September, 1866, directed, in the usual manner, to Wm. E. Ervin, W. EL Lane, H. W. Eerrill, and B. E. Scott, as commissioners, and in the usual form authorizing them to call in the services of a surveyor, if necessary.\\n\\u201c Beturn to writ, made on the 17th September, 1866, in the handivriting of Wm. E. Ervin, and signed by him and the other commissioners.\\n\\\"Large plat in commissioners\\u2019 office, made by W. E. Ervin, says: 'Pursuant to a writ of partition and division to commissioners directed, I (by their direction) have resurveyed and laid out,\\u2019 &e., &c,, dated September 17,1866.\\n\\u201c Original survey made several years ago, of same land, by W. E. Ervin, corner then put where defendant now contends it ought to be, adjoining lands now owned by Ervin, then owned by others. By survey then, Epps\\u2019 land contained 1,008 acres \\u2014 now only 992 \\u2014 loss, 16 acres. Beturn of commissioners not yet confirmed, owing to this' difficulty. Division to be made over, de novo.\\u201d\\nThe defendant appealed on tbe grounds:\\n1. Because, it is respectfully submitted that bis Honor erred in holding that a party who bad been appointed, and had acted as a commissioner in dividing real estate under a writ of partition from tbe Court of equity, could also act as tbe surveyor whom the commissioners were authorized to employ, and charge according to tbe fee-bill for bis services.\\n2. Because, that when a party undertakes to perforin a work of skill and labor, and fails in the object, and bis employer receives no benefit whatever from the work, but, on the contrary, positive disadvantage and injury, thus requiring the work to be done over, de novo, the said party is entitled to no compensation whatever.\\n8. Because the plaintiff was allowed to charge three dollars per diem for five days\\u2019 service, which included as well the days employed in making the plats and executing the writ of partition, as those employed in actually making the survey.\\n4. Because the said plaintiff was allowed to charge two dollars and fourteen cents for each of seven plats made, one for each of the heirs; while it is submitted that if even it be held that be was entitled to any compensation at all, he could only charge for one plat, which accompanied the return of the commissioners.\\nMaurice, for the motion,\\ncited:\\nA. A. 1733, 3 Stat. p. 343; Note at p. 765, vol. 4, Stat.; A. A. 1791, 5 Stat. 158 and 161; Slurzenegger vs. Marsh, 1 Bail. 592, 1 McM. 73; Comyn on Con. 239 and 240; Duncan vs. Blundell, 3 Stark, 6; 1 Campb. 38; 1 Cheves\\u2019 Oh. Ca. 129; Snow vs. Callum, 1 Des. 542; 2 Bay, 101; McNeil vs. Morrow, Rich. Eq. Ca. 172; Barr vs.-Farr, 1 Hill Ch. 387; Robinson vs. Rett, 2 Lead. Ca. in Eq. by Hare & Wallace, p. 206, and the cases therein cited.\\nPressley, contra.\", \"word_count\": \"2300\", \"char_count\": \"13227\", \"text\": \"The opinion of the Court was delivered by\\niNGLis, A. J.\\nThe services for which the plaintiff seeks in this action to recover from the defendant appear, from the report before the Court, to have been rendered, if at all, in his capacity of deputy surveyor, while retained as such in the execution of a commission issued in a proceeding at law or in equity for the partition of the real estate of Epps. It occurred to this Court, upon the presentation of the case, as unusual and needing explanation, that for services so rendered a claim should be preferred by suit against an individual party. Commissioners appointed to make partition of land are required to \\\" return a general plat of the said lands, with a certificate thereon in writing,\\\" \\\" describing the manner in which they have made\\\" the partition, &c., and \\\" may, if they think necessary, call in to their aid one or more surveyors to run the lines of the said lands and also the division lines thereof.\\\" (A. A. 1791, 5 Stat. 163; A. A. 1786, 4 Stat. 742; Witherspoon et al. vs. Dunlap, 1 McC. 546.) It would seem proper that whatever charges the plaintiff is entitled to make, under such circumstances, should have been taxed as part of the costs of the cause ; and it is not seen how there is a personal liability upon this defendant to make compensation for such services. The mere fact that he, or any one of the coparceners, made himself active in requesting the plaintiff to do the service, would not seem sufficient to make him personally respon sible for that which would be a proper charge as costs in the cause. No such question has, however, been made, and the case must be disposed of on other grounds.\\nThe plaintiff was also one of the commissioners'to whom the writ of partition was directed, and, as such, was, with his associates, acting in the execution of the commission, entitled to reasonable compensation for time and labor to be taxed, with the other \\\"expenses incurred in making\\\" the partition, as costs in the cause. The evidence in the case, as reported, does not make it satisfactorily clear that the first charge in the bill of particulars does not cover time spent and services rendered in his capacity of commissioner merely, as distinct from that of surveyor, and still less that time consumed in making the plats was not so covered, and thus a double or triple charge made for the same day's work. The plaintiff's own land adjoins the land to be surveyed ; the latter was, therefore, convenient of access to him; it had been already surveyed by him, and he was, therefore, familiar with the lines; and the whole area to be surveyed did not exceed one thousand acres. In such circumstances it seems doubtful at least whether five days could have been consumed in the mere fieldwork. The confusion which may easily thus arise to the injury of the parties, from combining in one person the distinct offices of commissioner and surveyor, constrains this Court to doubt the propriety of such combination, and while it cannot be said that it is unlawful, it may, with great confidence, be declared highly inexpedient.\\nThere is nothing in the law prescribing the duties of commissioners in partition, which requires them to have made and to return into Court, distinct plats of the separated parcels of land allotted to the different dis-tributees. The last charge in the bill of particulars could not properly, therefore, be taxed as costs, in the partition cause. If the defendant is liable, it can only be on the ground of bis promise, express or implied. But tbe proof is no more than that defendant requested tbe plaintiff to make separate plats for the heirs severally, \\\"if it was customary.\\\" This either referred to the duty of the commissioner acting under the authority of the Court, and meant if it was, under the law, a part of that duty, (which seems the most reasonable construction,) or, if a more liberal interpretation is adopted, it referred to the usage of surveyors in such cases, and in either view, it was an appeal to the professional knowledge of the plaintiff. There ought to have been evidence that it was customary, in whatever sense the Court thought was the true one, but here there is none to satisfy even that construction, which is most favorable to the plaintiff. '\\nThe proposition stated in the appellant's second ground is substantially correct. When one charges for work done at another's request, and-the work is proved to have been so unskilfully, carelessly, or wrongly done, that the employer does by the. workman's fault suffer injury, rather than realize the expected benefits, or so that, the labor proving wholly useless, the expense must be incurred a second time, this is, according to the circumstances, good \\u2022grounds for an abatement or in bar of the workman's demand. The plaintiff was, at the time of the survey, owner of the land adjoining the land which he was surveying. While running the dividing line between these contiguous tracts, a controversy arose between the plaintiff and the heirs of Epps, as to the proper location of a corner thereon, the latter insisting that it was some fifteen steps distant from the spot at which the plaintiff located it. The plaintiff persisted, and made his survey and plat in conformity with his own claim, in opposition to the claim and interests of those he was serving, and whose interests he as an officer of the Court was bound impartially to protect. So soon as this conflict of interests was discovered, the plaintiff be came incompetent for bis work, and should have instantly withdrawn, or on bis failure to do so, should have been discharged by the commissioners. A plat so made and returned into Court, if it is acquiesced in, and partition is made and confirmed accordingly, must, it will be readily seen, be a very strong and controlling piece of evidence in any future controversy between the plaintiff and the dis-tributee to whom the particular part of the land so involved in dispute should be assigned. The heirs of Epps are reduced to the dilemma of either submitting to a spoliation pro tanto of what they believe to be their patrimony, or of throwing away the plaintiff's work, and incurring the expense of a new survey. It may be that the merits of the controversy between the plaintiff and the Epps heirs, as to the location of this disputed corner cannot be investigated, and the right determined in this incidental way, especially on the trial of an action in the summary process jurisdiction of the Court. But the fact of the controversy, and the existence of probable ground therefor, (as is alleged to be susceptible of easy proof here,) appearing, as its existence was indisputable cause for the discontinuance, at that point, of the plaintiff's services, would be good ground for disallowing all charges for services subsequently rendered. To show the occurrence of this controversy and the probable cause therefor on the Epps side, testimony ought to have been admitted.\\nIt is the opinion of the Court that the defendant is entitled to a new trial, and it is so ordered.\\nMotion granted.\\nD\\u00fcNKiN, C. J., and Waudlaw, A. \\u2022!., concurred.\\nMotion granted.\"}"
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+"{\"id\": \"8714039\", \"name\": \"The STATE, Respondent, v. LeGrant MULLER, Appellant\", \"name_abbreviation\": \"State v. Muller\", \"decision_date\": \"1984-05-25\", \"docket_number\": \"22117\", \"first_page\": \"10\", \"last_page\": \"11\", \"citations\": \"282 S.C. 10\", \"volume\": \"282\", \"reporter\": \"South Carolina Reports\", \"court\": \"Supreme Court of South Carolina\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T22:36:29.792275+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The STATE, Respondent, v. LeGrant MULLER, Appellant.\", \"head_matter\": \"22117\\nThe STATE, Respondent, v. LeGrant MULLER, Appellant.\\n(316 S. E. (2d) 409)\\nSupreme Court\\nSam R. Haskell and Harry B. Burchstead, Jr., Sumter, for appellant.\\nAtty. Gen. T. Travis Medlock, Asst. Atty. Gen., Harold M. Coombs, Jr., and State Attys., Agnes Dale Moore, and Susan A. Lake, Columbia; and Sol. Wade S. Kolb, Jr., Sumter, for respondent.\\nMay 25, 1984.\", \"word_count\": \"255\", \"char_count\": \"1544\", \"text\": \"Per Curiam:\\nAppellant was convicted of assault and battery of a high and aggravated nature and of carrying a concealed weapon and was sentenced to concurrent terms of eight (8) years and one (1) year, respectively. He contends the trial judge erroneously refused to charge the law of self-defense. We agree.\\nOn December 25,1982, appellant and Rowland Tomlin were involved in a shooting incident at the apartment of appellant's ex-wife. At trial, appellant testified he shot Tomlin after Tomlin took out a gun and began shooting at him.\\nThe trial j udge's refusal to charge the law applicable to self-defense was error because appellant's testimony constituted sufficient evidence from which the jury could infer that appellant acted in self-defense. State v. Adkinson, 311 S. E. (2d) 79 (1984); State v. Jackson, 227 S. C. 271, 87 S. E. (2d) 681 (1955).\\nAppellant's other exceptions are without merit and are dismissed under Rule 23 of the Rules of Practice of this Court.\\nAccordingly, appellant's conviction on the charge of assault and battery of a high and aggravated nature is reversed and remanded for a new trial; the conviction for carrying a concealed weapon is affirmed.\"}"
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+"{\"id\": \"8714116\", \"name\": \"Lydia Jane Baker, by her guardian, vs. William H. Baker and others\", \"name_abbreviation\": \"Baker v. Baker\", \"decision_date\": \"1845-05\", \"docket_number\": \"\", \"first_page\": \"392\", \"last_page\": \"395\", \"citations\": \"1 Rich. Eq. 392\", \"volume\": \"18\", \"reporter\": \"South Carolina Equity Reports\", \"court\": \"South Carolina Court of Appeals\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T22:18:43.139706+00:00\", \"provenance\": \"CAP\", \"judges\": \"The whole court concurred.\", \"parties\": \"Lydia Jane Baker, by her guardian, vs. William H. Baker and others.\", \"head_matter\": \"Lydia Jane Baker, by her guardian, vs. William H. Baker and others.\\nThe Court of Equity has the poiuer to sell the absolute fee in lands, on the application of the person having a defeasible fee, against the will of the contingent devisee. Per Johnson, Ch.\\nAn application for such a sale opposed by the contingent devisee and refused by the court.\\nBefore JohNsokt, Ch. at Lancaster, June, 1843.\\nThe decree of his Honor the Chancellor is as follows.\\nThe following clause is contained in the last will of the defendant\\u2019s testator, the late William Baker, viz: \\u2014 \\u201cI give and bequeath to my beloved wife Rhoda Baker, the lands whereon I now live, during her widowhood, for her support and maintenance\\u2014 also the following negroes, viz: Jack, Sail, Mary and George, with their future increase, during her widowhood ; and at the marriage of my said wife, I will and bequeath the said land and negroes, with their future increase, to my natural daughter, Lydia Jane Baker; and in case of the death of my daughter, Lydia Jane Baker, before the above contingency happening, or if my daughter should die leaving no children at the time of her death, in that case all the aforementioned property, lands, ne-groes and increase, I give to my son William H. Baker of Alabama, to him and \\u2018his heirs and assigns forever.\\u201d \\u201cBut if my little infant daughter,\\u201d (the complainant,) \\u201cshould be alive at the intermarriage of my wife with any person, in that case all the lands and negroes, with their future increase, at the end of the widowhood of my wife, I give to my infant daughter, and at her death to her children; and in case of her dying and leaving no children at the time of her death, then, and in that case only, I give that property to my son William H. Baker.\\u201d\\nThe testator died in 1837, and his widow intermarried with Henry Gardner, the guardian of the complainant, in 1839, when of course the interests of the complainant became vested, and it is stated in the bill that Gardner, the guardian, has rented out the plantation since that time, from year to year, for her benefit, but that almost the whole tract has been cut down and cultivated, leaving but scanty materials for repairs of buildings and fencing. That the plantation is much worn and exhausted, and the buildings and fences are greatly out of repair, and that under this system, the plantation, in the course of the long minority of complainant which is to ensue, will be entirely worn out and exhausted \\u2014 and the prayer is, that the lands may be sold under the order of the court, and the proceeds vested in other property, subject to the uses of the wiH, or paid to the guardian of the complainant.\\nThe defendant William H. Baker still resides in Alabama, and has not put in his answer, nor has he qualified as executor. He was, I suppose, made a party by publication, and for any thing that appears, is in fact ignorant of these proceedings. The defendant Blackman admits in his answer the facts stated in the bill in regard to the condition of the plantation, and concurs in the opinion that it would, under the circumstances, be to the interest of all concerned, that the land should be sold and the proceeds vested in other property, or put to interest, subject to the uses expressed in the will. The commissioner to whom the subject was referred, on the evidence of disinterested witnesses, found the facts stated in the bill and admitted in the answer to be true, and recommends a sale, and I shall accordingly order a sale.\\nIt was argued at the hearing, that the limitation over to William H. Baker was void, and that the complainant took an absolute property in the estate devised, but on examination of the authori ties, I am satisfied that the limitation over is good, dependent on. the event of Lydia Jane Baker dying without leaving issue at the time of her death; but if I had thought otherwise, I should have made no order on the subject, as William H. Baker is not in reality before the court, and I propose still to leave it open, until it shall be necessary to make a final disposition of the funds arising from the sales.\\nIt is ordered and decreed, that the plantation mentioned in the pleadings be sold by the commissioner, at such time as he, with the consent of the complainant, shall appoint, on the terms recommended by him, that is to say, on a credit of one, two and three years, in equal instalments, the interest to be paid annually on the whole sum, at the end of every year. The purchaser to give bond and personal security, and a mortgage of the premises, to secure the payment of the purchase money. The accruing interests when received, to be paid to complainant for the use of his ward, and the principal sum to remain subject to the further order of the court.\\nThe defendant, W. H. Baker, appealed.\\nClinton, for the appellant.\\nWright, contra.\", \"word_count\": \"1395\", \"char_count\": \"7713\", \"text\": \"Curia, per Johnson, Ch.\\nThe decree of the Circuit Court proceeds on the principle, that the court have the power to order the sale of the entire fee simple of the lands in question, against the will of the defendant Baker, and in reviewing the matter, I am satisfied that it can be sustained. There are numerous cases in which the court do exercise the power of disposing of the interest of the parties in real estate without their consent, as in the common case of the partition of intestates' estates provided for by the Act of 1791, and according to Pell vs. Ball, decided at the last sitting of the court in Charleston, where real estates were devised to several and partition was sought for by one; and so in all cases where several have a common interest which cannot be severed in specie so as to make the several parts useful to all, as in the case of a house with a single room of which half a dozen persons are tenants in common, where the only practicable mode of making severance is by reducing it to money. In this and like cases the exercise of the power is forced on the court by necessity, as that is the only means by which equal justice can be done between the parties. But here no such necessity exists; the interests of the parties are several and distinct. The will gives the fee to the complainant, defeasible on the contingency of her dying without leaving issue at the time of her death, and in that event the absolute fee is limited over to the defendant Baker in remainder, and their estates, if the remainder over vests in Baker, are as distinct and independent of each other, both as to the title and the enjoyment, as if there had been several estates devised to each of them. The contingent estate of Baker opposes no obstacle to the complainant's perfect enjoyment of all interest which the testator intended to confer on her, or to her power of disposition over it, and the sale of Baker's contingent interest is in no way necessary to its full fruition. It may be that the estate would sell for a better price if it had not thus been incumbered with this limitation, but it will be worth just as much in the hands of the purchaser as it is in the hands of the complainant, and as well might one, who desired to sell his own estate, insist that his neighbor, who owns an adjoining estate, should be compelled to sell that also, because they would bring a better price if both were sold together, or a remainder-man that the interest of the tenant for life should be sold because he would prefer to have the remainder in the form of money.\\nIt is therefore ordered and decreed, that the decree of the Circuit Court be reversed, and that the case be refered back to the Circuit Court, to give the complainant an opportunity of taking such further order as she may think fit, consistently with this opinion.\\nThe whole court concurred.\\nAnte, p. 361.\"}"
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+"{\"id\": \"8714395\", \"name\": \"John Joseph PARNELL, Appellant v. FARMERS TELEPHONE COOPERATIVE, Respondent\", \"name_abbreviation\": \"Parnell v. Farmers Telephone Cooperative\", \"decision_date\": \"1986-05-27\", \"docket_number\": \"0721\", \"first_page\": \"112\", \"last_page\": \"118\", \"citations\": \"289 S.C. 112\", \"volume\": \"289\", \"reporter\": \"South Carolina Reports\", \"court\": \"South Carolina Court of Appeals\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T21:05:11.023326+00:00\", \"provenance\": \"CAP\", \"judges\": \"Sanders, C. J., and Gardner, J., concur.\", \"parties\": \"John Joseph PARNELL, Appellant v. FARMERS TELEPHONE COOPERATIVE, Respondent.\", \"head_matter\": \"0721\\nJohn Joseph PARNELL, Appellant v. FARMERS TELEPHONE COOPERATIVE, Respondent.\\n(344 S. E. (2d) 883)\\nCourt of Appeals\\nJ. Edward Bell, III, Sumter, for appellant\\nRamon Schwartz, Jr. and W. E. Durant, Sumter, for respondent.\\nHeard March 17, 1986.\\nDecided May 27, 1986.\", \"word_count\": \"1619\", \"char_count\": \"9595\", \"text\": \"Bell, Judge:\\nJohn Joseph Parnell commenced this negligence action against the Farmers Telephone Cooperative, alleging the Cooperative disrupted his telephone service causing him substantial business losses. The Cooperative pleaded as an affirmative defense Parnell's failure to file a written claim for his losses within sixty days after disruption of service as required by the Cooperative's tariffs. At the close of Parnell's evidence, the trial judge granted the Cooperative's motion for an involuntary nonsuit on the ground that no written claim was filed within sixty days. Parnell appeals. We affirm.\\nSection A2.5.6 of the Cooperative's tariffs provides:\\nThe Cooperative shall not be liable for damages or statutory penalties in any case where a claim is not presented in writing within sixty (60) days after the alleged delinquency occurs.\\nBy failure to respond to the Cooperative's requests for admissions, Parnell admitted this tariff provision was in effect during the period when he received telephone service from the Cooperative. See Rule 89(a), Rules of Practice for the Circuit Courts of South Carolina. Consequently, the crucial issue of fact at trial was whether Parnell had complied with the tariff by presenting his claim in writing within the sixty day period.\\nI.\\nParnell first argues that the nonsuit was erroneously granted because the Cooperative did not prove the quoted tariff provision was in effect at the time of the acts giving rise to his cause of action. He contends the Cooperative should have introduced into evidence the tariff in effect from April 1978 through August 1979. The tariffs actually admitted into evidence became effective on August 28,1979, and September 9, 1980, and, therefore, did not cover the relevant time period, according to Parnell.\\nParnell's argument is without merit. By failing to respond to the Cooperative's requests for admissions, he admitted the quoted tariff provision was in effect during the period from April 1978 through August 1979 when he received telephone service from the Cooperative. See Circuit Court Rule 89(a). Any matter admitted under Rule 89 is conclusively established for the purpose of the pending action. See Circuit Court Rule 89(c). Therefore, it is no longer in issue at trial. A party with the burden of proof is not required to prove matters of fact not in issue nor does he need to offer evidence to prove facts admitted by the opposing party. See Liverpool & London & Globe Insurance Company, Ltd. v. Bolling, 176 Va. 182, 10 S. E. (2d) 518 (1940); Vinson v. Smith, 259 N. C. 95, 130 S. E. (2d) 45 (1963). The fact that the Cooperative introduced neither the applicable tariff nor the requests for admissions into evidence is, therefore, of no consequence.\\nII.\\nParnell next argues the nonsuit was erroneous because his evidence showed he filed at least two written complaints with the Cooperative during the sixty day period.\\nIn construing a requirement that a claim against a telegraph company must be filed within sixty days, our Supreme Court has stated that the. claim should set forth fairly the nature and extent of the claimant's demands; simply giving notice of a claim does not satisfy a requirement that the claim itself should be filed. See Toale v. Western Union Telegraph Company, 76 S. C. 248, 57 S. E. 117 (1907). Moreover, in Clarke v. General Telephone Company of the Southeast, 268 S. C. 92, 232 S. E. (2d) 26 (1977), the Court held that transcription of a customer's oral complaint by a company employee did not constitute the filing of a written claim. The tariff provision in Clarke was identical to the one in this case.\\nWith these principles in mind, we turn to the evidence Parnell presented at trial.\\nNeither Parnell nor the Cooperative was able to produce a copy of a written claim for losses incurred as a result of the alleged disruption of Parnell's telephone service. In his deposition Parnell testified as follows:\\nQ. Have you presented any claim of any kind for damages to Farmers Telephone prior to the time you brought this suit?\\nA. (No response)\\nA. You mean a legal .\\nQ. Did you go to anybody verbally, formally or informally or whatever, and ask them to pay you anything for any damages that you sustained?\\nA. My answer was no.\\nDuring cross examination at trial Parnell again admitted no claim was filed:\\nQ. All right, sir. You did not file any claim in July or August when you became aware that there was a problem?\\nA. (No response)\\nQ. No claim whatsoever with Farmers Telephone Cooperative until you filed your complaint in June of 1980?\\nA. You're saying a lawsuit, is that what you're talking about \\u2014\\nQ. No sir, I'm asking you if you, yourself, filed any written claim with Farmers Telephone Cooperative from the point that you became aware . in July or August of 1978, you filed no written claim from that point in time until you filed this lawsuit in June of 1980?\\nA. I physically didn't write no notes or fill out any forms or anything, is that what you're saying?\\nQ. That's what I'm asking you.\\nA. Well, I'm pretty sure that I filled out one form, I don't remember signing it \\u2014 no I could say to that, no, I guess you're right, I don't know.\\nParnell's assertion that he filed a written claim within the sixty days rests on testimony by him and his wife regarding two occasions on which they say they complained to the Cooperative about disruption of their service. A review of the record shows, however, that neither Parnell nor his wife stated that a claim for losses was made against the Cooperative.\\nParnell testified that in July 1978 he went to the Cooperative's office and told somebody he was having trouble with his telephone. After discussing the problem in some detail, he filled out a form and signed it. The form itself was not subpoenaed and its contents were not proved at trial. Nothing in Parnell's account of this incident suggests he made a claim against the Cooperative for his losses rather than merely informing them he had a problem with his telephone service.\\nMrs. Parnell also testified that she wrote a note to the Cooperative and stapled it to a check dated May 15,1978, in payment of the previous month's telephone bill. The check was admitted into evidence. However, the note was not subpoenaed and its contents were not proved. Any conclusion as to its contents would be purely speculative. Nothing in the remainder of Mrs. Parnell's testimony suggests the note contained a claim for losses against the Cooperative.\\nOn appeal from the granting of an involuntary nonsuit, this Court must view the evidence in the light most favorable to the appellant. Champion v. Whaley, 280 S. C. 116, 311 S. E. (2d) 404 (Ct. App. 1984). If the evidence is susceptible of only one reasonable inference or if there is no evidence to support an essential element of the cause of action, no issue of fact exists and the nonsuit is properly granted. Profes sional Bankers Corporation v. Floyd, 285 S. C. 607, 331 S. E. (2d) 362 (Ct. App. 1985).\\nViewing the evidence in the light most favorable to Parnell, we conclude the only reasonable inference to be drawn is that no written claim was filed within the sixty days. Accordingly, the granting of a nonsuit on this basis was proper.\\nIII.\\nParnell's final argument is that his action should not be barred because the sixty day notice provision of the tariff is unreasonable.\\nParnell did not raise the issue of the tariffs reasonableness in his pleadings nor did he undertake to prove the unreasonableness of a sixty day claim period at trial. The first time Parnell raised the question of reasonableness was during oral argument following the Cooperative's motion for an involuntary nonsuit. An issue not timely raised at trial cannot be considered on appeal. Munn v. Asseff, 226 S. C. 54, 83 S. E. (2d) 642 (1954); Murphy v. Hagan, 275 S. C. 334, 271 S. E. (2d) 311 (1980).\\nIf we assume, however, that Parnell timely raised the issue of reasonableness in the circuit court, we still find no basis for reversal on this ground. Parnell adduced no evidence that he could not reasonably comply with the sixty day time limit. In addition, there is no evidence he filed a claim at any time prior to institution of this suit, two years after the alleged claim arose. In these circumstances, his assertion that the tariff is unreasonable is little more than an abstraction.\\nThe Cooperative's tariffs have been reviewed and approved by the Public Service Commission. They have the effect of law and bind both the Cooperative and Parnell. See Clarke v. General Telephone Company of the Southeast, supra. As such they are entitled to the normal presumption of validity afforded to regulatory provisions. Quattlebaum v. Georgia Power Company, 165 Ga. App. 510, 301 S. E. (2d) 677 (1983). Provisions limiting the liability of public utilities for negligence in providing service are based on legitimate considerations of public policy. Reasonable utility rates are in part dependent on such limitations. See Pilot Industries v. South Bell Telephone & Telegraph Company, 495 F. Supp. 356 (D. S. C. 1979). In this case, Parnell has made no showing that overcomes the presumption of reasonableness enjoyed by the tariff.\\nFor the foregoing reasons, we affirm the judgment of the circuit court.\\nAffirmed.\\nSanders, C. J., and Gardner, J., concur.\"}"
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diff --git a/sc/8715228.json b/sc/8715228.json
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+"{\"id\": \"8715228\", \"name\": \"BEARD-LANEY, INC., ET AL. v. DARBY ET AL.\", \"name_abbreviation\": \"Beard-Laney, Inc. v. Darby\", \"decision_date\": \"1946-04-29\", \"docket_number\": \"15834\", \"first_page\": \"313\", \"last_page\": \"319\", \"citations\": \"208 S.C. 313\", \"volume\": \"208\", \"reporter\": \"South Carolina Reports\", \"court\": \"Supreme Court of South Carolina\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T22:53:10.918325+00:00\", \"provenance\": \"CAP\", \"judges\": \"Messrs. Associate Justices Fishburne, Stukes and Tayeor and Mr. Acting Associate Justice J. Henry Johnson concur.\", \"parties\": \"BEARD-LANEY, INC., ET AL. v. DARBY ET AL.\", \"head_matter\": \"15834\\nBEARD-LANEY, INC., ET AL. v. DARBY ET AL.\\n(38 S. E. (2d), 1)\\nMessrs. Odom & Bostick and B. W. Johnson, all of Spar-tanburg, Counsel for Appellants,\\nMessrs. Prank A. Graham, Jr., of Columbia, and Robert McC. Pigg, Jr., of Charleston, Counsel for Respondents,\\nApril 29, 1946.\", \"word_count\": \"1795\", \"char_count\": \"10600\", \"text\": \"Mr. Associate Justice Oxner\\ndelivered the unanimous Opinion of the Court.\\nThe only question for determination on this appeal is whether under the circumstances of this case a formal summons was indispensable to the jurisdiction of the Court. The lower Court held that the rule to show cause hereinafter referred to met all the requirements of a summons as prescribed by the Code of Civil Procedure and that it was not necessary to issue or serve on appellant any further process. Appellant's counsel contend that it was mandatory that the action be commenced by the service of a summons and as this was not done, the Court never acquired jurisdiction of appellant.\\nThis action was originally brought against the members of the Public Service Commission of South Carolina for the 'purpose of vacating and setting aside order No. 3782 of the Commission issued on April 11, 1945. An action of this kind is permissible under the terms of Section 8211, Subdivision (e), Code of 1942, which provides that \\\"a copy of the complaint shall be served with the summons\\\". The instant action, however, was not commenced with the service of a summons. A verified complaint was filed upon which, on May 16, 1945, Judge Bellinger issued an order requiring the Commission to show cause before him on May 31, 1945, why the order above mentioned should not be vacated. He also restrained the Commission, pending the final determination of the controversy, from issuing or delivering the certificate of public convenience and necessity granted by it in the order sought to be vacated. The Commission in due time answered and the matter was heard by Judge Bellinger on July 9, 1945. During the course of the arguments he reached the conclusion that Sanders Truck Transportation Company, Inc., and appellant, Associated Petroleum Carriers, who were parties to the proceedings before the Public Service Commission, should be made parties to this action and heard on the issues involved before the merits of the controversy were determined. Accordingly, on July 12, 1945, Judge Bel-linger ordered that the complaint be amended by adding as parties defendant appellant and the other carrier mentioned and by inserting appropriate allegations as to said parties, and continued the hearing until the first day of the ensuing-term of Court. This order further provided: \\\"That the amended complaint, together with a copy of this order, shall be served upon the several party defendants named therein, and that the said Sanders Truck Transportation Company, Inc., and Associated Petroleum Carriers shall have twenty (20) days from the date of service of the amended complaint and of this order upon them in which to plead to serve a copy of their pleadings upon the attorneys for plaintiffs.\\\"\\nThe complaint was thereafter amended and on August 9, 1945, Judge Mann issued an order supplementary to that of Judge Bellinger, requiring appellant, Associated Petroleum Carriers, and the Sanders Truck Transportation Company, Inc., to show cause on September 24, 1945, which was the first day of the next term of Court, why the Public Service Commission should not be directed to forthwith vacate the order heretofore mentioned and to revoke any certificate of public convenience and necessity issued thereunder. Appellant was further required to show cause on that date why it should not be restrained pendente lite from operating under a certain certificate of public convenience and necessity issued to it by the Commission.\\nA deputy sheriff of Spartanburg County attempted on August 18, 1945, to serve on appellant copies of the amended complaint and the orders of Judges Bellinger and Mann. The validity of this service was questioned by appellant. However, it is conceded that appellant was properly served on September 20, 1945. Thereafter appellant made a special appearance and objected to the jurisdiction of the Court on the ground that no summons had ever been served. The jurisdictional objection was heard on October 26, 1945, by Judge Gaston, who was then presiding in the Fifth Circuit. He held that the order issued by Judge Bellinger on July 12, 1945, served the purpose of a summons and that the Court thereby acquired jurisdiction of appellant. This appeal followed.\\nSection 427, Code of 1942, requires that a civil action \\\"shall be commenced by service of a summons\\\". Sections 428 and 429 prescribe the requisites of a summons and state that it shall be \\\"subscribed by the plaintiff or his attorney\\\". Hence the present action should have been commenced by the service of a summons and defendants should have been allowed twenty days in which to answer or otherwise plead to the complaint. But this was not the only means by which the Court could acquire jurisdiction of defendants. The members of the Public Service Commission, who were the only defendants at this stage of the proceeding, accepted service of the rule to show cause and complaint, raised no jurisdictional objection, and filed an answer. By making a general appearance and answering on the merits these defendants waived not only all defects and irregularities in the process, but also an entire want of process. Cheraw Motor Sales Co. v. Rainwater, 125 S. C., 509, 119 S. E., 237; Wright v. Lee et al., 108 S. C., 357, 94 S. E., 873. It is clear, therefore, that this action had been commenced, was pending, and the Court had jurisdiction of the members of the Public Service Commission at the time Judge Bellinger brought in appellant and the other carrier as parties defendant.\\nUnder the terms of Sections 409 and 494 of the Code of 1942, Judge Bellinger was fully empowered to bring before the Court all necessary and proper parties. Indeed, Section 409 provides that \\\"when a complete determination of the controversy cannt be had without the presence of other parties, the Court must cause them to be brought in\\\". Apparently Judge Bellinger concluded that the presence of appellant and the other carrier was necessary to a complete determination of this controversy and on his own motion ordered that they be brought in and added as parties defendant.\\nThese sections of the Code do not prescribe the procedure to be followed where the Court brings in a new party. We may assume for the purpose of this discussion that the proper mode of doing so is by the service of a summons upon him. But the departure in this case from what may have been the better practice was merely formal and resulted in no prejudice whatsoever to appellant. Appellant does not question the finding of the lower Court that the rule to show cause issued by Judge Bellinger contained all the essential requirements of a summons. Appellant contends that such a rule to show cause, \\\"regardless of its phraseology, is no substitute for, nor is it the equivalent of a summons, such as is required by the statutory law of this State\\\". It is true, as heretofore pointed out, that this action should have been commenced by the service of a summons, but the original defendants in answering on the merits waived the requirement of a summons. The Court had jurisdiction of them and the action was properly pending when the Court concluded that appellant should be brought in as a party defendant. Every requisite of a summons was contained in the order which was served on appellant along with the amended complaint. While this order was not \\\"subscribed by the plaintiff or his attorney\\\", surely a notice and a command issued by the Court itself should be as efficacious as one issued by the party to an action or his attorney. The position of appellant is highly technical and under the circumstances of this case cannot be soundly sustained.\\nThe following language of the Court in State ex rel. Wolfe v. Sanders, 118 S. C., 498, 110 S. E., 808, quoted with approval in the subsequent cases of Heyward v. Long, 178 S. C., 351, 183 S. E., 145, and Dacus v. Johnston, Governor, 180 S. C., 329, 185 S. E., 490, is apposite to the circumstances of the instant case: \\\"The purpose of the summons is to acquire jurisdiction of the person of the defendant and to give him notice of the action and an oportunity to appear and defend. While Code Civ. Proc., Sec. 178 (now Section 428 of the 1942 Code), et seq., prescribes the requisites of the summons, it does not provide that it shall be in any particular form. And when we consider the purpose of the summons, in the light of the proceedings had in this case, particularly the provisions contained in the order of the Chief Justice and the allegations of the petition or complaint, and the prayer thereof, it is clear that the objection of defendant is purely and highly technical, and that to sustain it would be to sacrifice substance to form, because the order and the petition together contained substantially every requisite of a summons prescribed by the Code, and defendant was neither misled nor prejudiced in the slightest by the failure to serve him with a summons in due and regular form. While, as said, the service of a summons is the manner prescribed by the Code, and the usual means of acquiring jurisdiction of the person of the defendant, and therefore it ought to be observed in practice, as ought all other rules prescribed for an orderly system of procedure, nevertheless, it is well understood by the profession, and it has frequently been held by the Courts, that it is not the only method by which jurisdiction of the defendant may be acquired.\\\"\\nWe conclude that Judge Bellinger's order of July 12, 1945, fully serves the purpose of a summons and that no further process was necessary in order for the Court to acquire jurisdiction of appellant.\\nIt is suggested that appellant had less than twenty days in which to answer and file its return after the rules to show cause and amended complaint were served upon it. But Judge Gaston properly held that under the terms of Judge Bell-inger's order, appellant had twenty days after the date of service in which to plead. In fact, on motion of appellant, the time for doing so was extended by Judge Gaston until October 27, 1945.\\nJudgment affirmed, and the appellant is allowed twenty days after the filing of the remittitur to answer or otherwise plead to the complaint.\\nMessrs. Associate Justices Fishburne, Stukes and Tayeor and Mr. Acting Associate Justice J. Henry Johnson concur.\"}"
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diff --git a/sc/8715263.json b/sc/8715263.json
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+"{\"id\": \"8715263\", \"name\": \"KIRK v. CLARK\", \"name_abbreviation\": \"Kirk v. Clark\", \"decision_date\": \"1947-05-15\", \"docket_number\": \"15948\", \"first_page\": \"359\", \"last_page\": \"367\", \"citations\": \"210 S.C. 359\", \"volume\": \"210\", \"reporter\": \"South Carolina Reports\", \"court\": \"Supreme Court of South Carolina\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T22:54:26.759838+00:00\", \"provenance\": \"CAP\", \"judges\": \"Baker, CJ., and Stukes, Taylor, and Oxner, JJ., concur.\", \"parties\": \"KIRK v. CLARK\", \"head_matter\": \"15948\\nKIRK v. CLARK\\n(42 S. E. (2d) 587)\\nMessrs. C. B. Horger, and Felder & Rosen, all of Orange-burg, for Appellant, cite:\\nMay 15, 1947.\\nMessrs. Fred R. Fanning, Jr., and T. B. Bryant, Jr., of Orangeburg, for Respondent, cite:\", \"word_count\": \"2114\", \"char_count\": \"12102\", \"text\": \"EishburnE, AJ.:\\nThe plaintiff recovered damages for personal injuries alleged to have been sustained in a restaurant owned and operated by the defendant, Winfield Clark, at Santee, South Carolina. To the complaint, the defendant entered a general denial, and the affirmative defense that he was neither the owner nor the operator of the restaurant referred to therein. Upon his appeal to this court, he relies-solely upon this defense, hence all issues relating to negligence and wilfulness go out of the case.\\nOn November 11, 1945, the plaintiff, an elderly woman, whose home was in Scranton, Pennsylvania, was traveling in an automobile along United States Plighway No. 15, en route to Florida, with her brother-in-law and sister, ^ Mr. and Mrs. E. A. Ernshaw. They stopped for lunch at a restaurant and tourist court at Santee, in Orangeburg County, after which the plaintiff entered the ladies' rest room. Upon entering the rest room she tripped in a drain hole in the center of the cement floor which was uncovered, and fell, fracturing her spine.\\nThe validity of the defense depends upon whether appellant was the owner and manager of the business carried on in this roadside restaurant and tourist court.\\nThe appeal is from the refusal of the trial court to direct a verdict in favor of the defendant, made at the close of the evidence, and the denial of defendant's motion for judgment non obstante veredicto, or in the alternative, a new trial.\\nThe appellant endeavored to prove that although he had formerly- owned and conducted the restaurant, he had sold the business and stock of goods to J. L. Dannelly, who was at the time of the accident sole owner and operator. In support of this contention, he introduced in evidence a conditional sales contract, interpreted by the trial judge to be a chattel mortgage, dated September 1, 1945, which purported to convey to Dannelly all title and interest in the business known as \\\"Mims Filling Station\\\" or \\\"Marion Cafe.\\\" '\\nIt was admitted that legal title to the premises was vested in Clark Realty Company, a corporation, in which appellant owned all of the stock but two shares, and that he ran the restaurant up until September 1, 1945, the date of the conditional sales contract. About eight days before the execution of this instrument, on August 23, 1945, the appellant filed an application with the South Carolina Tax Commission for the,, renewal of his permit to sell wine and beer at this cafe. On August 27th this application was refused. Some time after September 1, 1945, J. D. Dannelly, as owner, applied for and received from the Tax Commission a permit to sell wine and beer at the same location.\\nThroughout the trial, the respondent assailed the validity of the contract or mortgage alleged to have been entered into between the appellant and Dannelly. It was brought out on cross examination of the latter that no cash payment was made at the time of the execution of this instrument, but that appellant was to receive five per cent, of the gross sales each month as payment on the purchase price of the stock of goods and fifty dollars per month as rent for the buildings, and that appellant would have the right to occupy one of the cabins, and would receive his board free. This contract was not filed for record in the office of the clerk of court until eighteen days after the complaint in this action was served.\\nDannelly testified that he sold the business to a son of the appellant on September 1, 1946, but he said he could not remember what he had been paid for his interest, nor any of the details connected therewith, although this transaction occurred within a month of the trial of this' case.\\nThe respondent contended that the contract was not entered into in good faith; that it was resorted to as a subterfuge for the purpose of securing a beer license for the business ; and that Mr. Dannelly was not the true owner at any time, but was operating it for the appellant merely as his agent and employee.\\nRespondent's witness, Ernshaw, testified that immediately after the accident in the restaurant, lie inquired of Mr. Dannelly as to the ownership of the business and was informed by him that it belonged to Winfield Clark. Two or three witnesses who resided in the community in which the restaurant was located, testified that the appellant lived on the premises; that they had heard of no change of ownership, and that they saw appellant serving- and waiting on customers after the alleged sale of the business to Dannelly. It should be mentioned here that Dannelly worked in the restaurant for six months immediately prior to the time he claims to have purchased it, as an employee of appellant, so that there was no break in the continuity of his service and presence.\\nWe think the evidence in this case as to the ownership of the restaurant made an issue for the jury. As was stated in Greenville & C. R. Co. v. Partlow, 14 Rich. 237: \\\"It may be that no one of the facts would, of itself, warrant the inference, and yet, when taken together they would produce belief, which is the object of all evidence.\\\"\\nThe general rule is that it is the duty of the trial judge to direct a verdict, when the testimony and all inferences which the jury could legitimately draw therefrom would be insufficient to support a verdict for the other party. The trial judge in the case at bar concluded, correctly we think, that there was more than a scintilla of evidence from which the jury could reasonably infer that appellant was the owner and operator of this restaurant.\\nThere remains to be considered an issue arising out of the continuance of this case in the circuit court at a former term, conditioned upon the payment of certain costs.\\nThe case was on the docket for trial at the June (1946) term of court, and it was agreed between counsel that it would be tried on Tuesday of the second week, which was June 11th. Following the agreement, counsel for the appel-pellant, on June 6th, informed one of plaintiff's counsel that Mr. Clark had suffered a severe heart attack, and asked for a continuance. Whereupon, respondent's counsel reminded appellant's counsel of the firm agreement 'made to try the case regardless of whether Mr. Clark should be able to be present or not. The agreement for trial was then renewed, but on June 7th appellant's counsel.notified opposing, counsel that on account of Mr. Clark's condition, he could not be present at the trial, and they would not therefore consent for the case to be heard. On June 8th a certificate of Mr. Felder, of counsel for appellant, and a doctor's certificate were filed, wherein the status of Mr. Clark's health was given, and a motion for continuance was made. On this showing, Judge Mann, the trial judge at that term of the court, continued the case.\\nOn June 10, 1946, the respondent filed her affidavit, setting forth that on the strength of the agreement that the case would be tried, she had left her home in Scranton, Pennsylvania, on Thursday morning, June 6, 1946, by automobile for Orangeburg to attend the trial, and was accompanied by the Ernshaws, both of whom were material witnesses; and that they were in Orangeburg, ready for trial of the case on June 11th. It was further averred that the actual expense of making the trip to Orangeburg and returning to Scranton, including travel, meals and lodging for herself and the Ern-shaws, would amount to $219.61.\\nUpon this affidavit, Judge Mann, by an order dated June 10th, directed that the case be continued, conditioned upon the payment by the defendant to the plaintiff of the sum of $219.61. Due notice of intention to appeal from this order was served on plaintiff's attorneys on June 20, 1946. The case was tried at a subsequent term of the court, convening in October, 1946. So far as the record shows, payment of this expense was not made prior to the trial of the case. Apparently nothing was said about it, and the decision on the validity of the order evidently awaited this present appeal.\\nAppellant now contends that his Honor, Judge Mann, erred in continuing the case upon terms \\u2014 that is, conditioned upon payment by the defendant to the plaintiff of the items of costs and expense hereinabov\\u00e9 referred to; and in any event, that the amount involved was excessive and contrary to law. It is argued that inasmuch as these witnesses resided outside of the state of South Carolina, the respondent is not entitled to recover mileage; and in no event is. she entitled to recover the expense of meals and lodging.\\nIt is provided in Section 763 of the 1942 Code: \\\"When an application shall be made to a court or referee to postpone a trial, the payment to the adverse party of a sum not exceeding ten dollars, besides the fees.of witnesses, may be imposed, as the condition of granting the postponement.\\\"\\nIn our opinion, under Section 763, the court in granting a continuance is limited to the imposition of not more than ten dollars, in addition to $1.00 for every day's attendance for each witness, and five cents per mile for coming to court and returning by the shortest practical route (Sec. 4963). The Section (763) does not include or authorize the expenses of traveling, such as lodging and meals.\\nThis court has \\\"uniformly held that no costs can be taxed except such as the law in terms allows. Setzer v. Odom, 174 S. C. 56, 176 S. E. 869; South Carolina Public Service Authority v. Spearwant Liquidating Co., 201 S. C. 207, 22 S. E. (2d) 252. The Washington statute providing for the payment of a penalty and costs as a condition for continuance, is identical with ours, and similarly construed. Tacoma Nat. Bank v. Peet, 9 Wash. 222, 37 P. 426.\\nThe process of a court is without validity beyond the limits of a state. The fact, however, that a witness comes from outside of the state does not prevent the taxation of mileage for. his travel within the state; which mileage is to be taxed from the state line to the place of trial and return to the state line on the most direct route. 20 C. J. S., Costs, \\u00a7 245, p. 480; Cox, Maitland & Co. v. Charleston P. & M. Ins. Co., 3 Rich. 331, 45 Am. Dec. 771; Speigner v. Cooner, 9 Rich. 120; Annotation, 7 Ann. Cas. 163, 164.\\nBut respondent contends that where a party accepts the conditions on which a continuance is granted, which he may do by accepting the continuance or by failing to waive it promptly, he cannot afterward corftplain that the court exceeded its authority.\\nThe record shows that appellant excepted to. the ruling, and where the statute defines the terms on which a continuance may be granted, acquiescence in the order postponing the trial does not, in our opinion, estop the moving party from challenging the legality of the terms imposed. Our statute (Sec. 763), in designating the terms on which continuances may be ordered, by fair implication excludes authority to impose others; and if others are named (as .was done in this case) as conditions upon which the order is entered, these are in excess of authority, and may be challenged as any other like rulings. To the same effect is Keller v. Harrison, 151 Iowa, 320, 128 N. W. 851, 131 N. W. 53, Ann. Cas. 1913-A, 300. And see Annotation Ann. Cas. 1913-A, 306.\\nWe think the order providing the conditions named for the continuance of this case at the June Term, 1946, constituted error. As we construe Code Section 763 and 4963, as applied to the order, these witnesses were entitled only to mileage at the rate of five cents per mile from the state line to the city of Orangeburg and from Orangeburg back to the state line. Expenses for lodging and meals must be excluded.\\nThe judgment recovered by the plaintiff in the lower court is affirmed. The case is remanded, however, so that the costs may be taxed in accordance with the views herein expressed.\\nJudgment affirmed.\\nBaker, CJ., and Stukes, Taylor, and Oxner, JJ., concur.\"}"
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+"{\"id\": \"8715307\", \"name\": \"TOBIN, RECEIVER, v. McNAB\", \"name_abbreviation\": \"Tobin v. McNab\", \"decision_date\": \"1898-07-30\", \"docket_number\": \"\", \"first_page\": \"73\", \"last_page\": \"77\", \"citations\": \"53 S.C. 73\", \"volume\": \"53\", \"reporter\": \"South Carolina Reports\", \"court\": \"Supreme Court of South Carolina\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T18:17:19.895970+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"TOBIN, RECEIVER, v. McNAB.\", \"head_matter\": \"TOBIN, RECEIVER, v. McNAB.\\n1. Buieding and Loan Association \\u2014 Peace oe Performance of Contract. \\u2014 The contracting parties contemplated that the contract sued on should be construed according to laws of Georgia.\\n2. Ibid. \\u2014 This contract properly construed according to the laws of Georgia.\\nBefore Gary, J., Barnwell, November, 1897.\\nAffirmed.\\nForeclosure by J. Allen Tobin, as receiver of the Southern Mutual Building and Loan Association, v. Sallie McNab. The Circuit decree states the facts as follows:\\nThis is an action for the foreclosure of a mortgage, and came on to be heard before me on the pleadings and evidence as taken and reported by the master for Barnwell County. It appears, and I find that the defendant subscribed to and became the owner of ten shares of the stock of the said The Southern Mutual Building and Loan Association in November, A. D. 1889, with a view and for the purpose of obtaining a loan from said association of the sum of $500, and that the said association is a corporation duly chartered and organized under the laws of the State of Georgia, and as such was authorized and empowered to do a general building and loan business in the said State of Georgia, at Atlanta, where said association had its principal office or place of business. It further appears that heretofore, on the 26th day of September, A. D. 1890, the defendant, Sallie A. McNab, borrowed from the said association the sum of $500, and as security therefor the defendant assigned and hypothecated her said ten shares of stock, and also gave a mortgage over the lot of land described in the complaint, located in the town of Barnwell, S. C., to said association, as a further and additional security to said loan. The indebtedness to the said association was evidenced by the bond of the defendant, which provided that the defendant should pay $2.50 per month as interest on said loan, and the sum of $6 per month as instalments for the maturity of said stock, and the defendant agreed to make all payments to the said association at Atlanta, Ga., and to stand to and abide by the rules and regulations of said association. It further appears that the defendant made the regular monthly payments on said stock and interest on said loan up to the first day of October, A. D. 1896, when she ceased to make further payments, either of interest or instalments on the said stock. It further appears that upon the occasion of the insolvency of the said association the same was placed in the hands of receivers by an order and judgment of the Superior Court for Fulton County, in the State of Georgia, in February, A. D. 1897; and that thereafter, on the 10th day of March, A. D. 1897, the said The Southern Mutual Building and Loan Association was placed in the hands of J._ Allen Tobin, as receiver, by an order of his Honor, Judge D. A. Townsend, presiding Judge at that time in the Second Circuit. * * * It appears from the stipulations in the said bond, the said certificate of stock, and the mortgage herein, that the contract of the defendant was to be performed in the State of Georgia.\\nFrom judgment for plaintiff, defendant appeals.\\nMessrs. Bellinger, Townsend & O'Bannon, for appellant,\\ncite: Where is place of perfomnance: 49 S. C., 402; 50 S. C., 303; 51 S. C., 420; 16 S. E. R., 133; 28 S. C., 542; 15 S. E. R., 812; 34 S. W. R., 235; 12 N. E. R., 303; 25 Id., 871; 18 S. E. R., 967. Law of State mitst be proved: 45 S. C., 344. What is construction of contract: 44 S. C., 121; 51 S. C., 420; 48 S. C., 65.\\nMr. H. E. Young, also for appellant,\\ncites: Is the contract governed by laws of Georgia: 2 Ex., 25; 17 Wall, 243; 5 Gray, 79; 2 Allen, 239; 11 Gray, 38; 12 Mass., \\u2014; 4 Met., 210; 6 Paige, 632; 1 DeS., 160; 4 Pet., Ill; 3 Wheat., 101; 10 Wheat., 367; 13 Pet., 65; 5 How., 310; 17 How., 391; 1 Wall., 310; 17 Wall., 123; 96 U. S., 51; 91 U. S., 406; 1 Wall., 310; 20 How., 17; 6 Paige, 634; 13 Pet., 65; 2 Hill, 319, 601; 2 Spr., 561; 16 S. C., 196; 70 N. W. R., 510; 10 S. E. R., 1092; 11 S. E. R., 870; 17 S. E. R., 637; 32 S. W., 262. What is law of Georgia: 49 S. C., 409; 46 Ga., 166; 79 Ga., 459; 22 S. E. R., 712; 51 S. C., 420; 2 Hill, 319; 44 S. C., 121; 60 N. W. R., 1019; 8 L. R. A., 248; 105 Mass., 254; 7 Allen, 100; 40 Md., 172; 48 Md., 448; 51 Md., 198; 77 Va., 293; 81 H. E. R., 248; 11 Id., 496; 48 Ga., 445; 54 Ga., 98; 56 Ga., 350.\\nMessrs. Patterson & Hollman, contra,\\ncite: Not error to refuse to credit stock dues on mortgage debt: 49 S. C., 402; 44 S. C., 129. Eqtiitable mile for settlement of affairs of insolvent building and loan associations is laid down in: 8 At. R., 843.\\nJuly 30, 1898.\", \"word_count\": \"1549\", \"char_count\": \"8487\", \"text\": \"The opinion of the Court was delivered by\\nMr. Justice Gary.\\nThe facts out of which this action arose are set forth in the decree of the Circuit Judge. The first question which will be considered is whether the contract is to be construed by the laws of Georgia or South Carolina. In the certificate of shares which the defendant holds in the said association are the following provisions: \\\"This certificate is issued and accepted by the stockholders upon the following express terms and conditions: 1st. The stockholder agrees to pay this association sixty cents per month, on the first of each month, for each share held, until such share matures or is withdrawn. 2d. All moneys due from the stockholder to the association, and due from the association to the stockholder, shall be due and payable at the home office, Atlanta, Ga.; provided, however, that payments may be made to a local treasurer for transmission to the home office. In such case, the local treasurer will be deemed the agent of the local stockholder and not of the association, and payments will be credited to stockholders only after receipt at the home office.\\\" The following is a regulation of the association as to loans: \\\"The funds of the association will be loaned only to members. Roans must be secured by deed or first mortgage, and must not exceed fifty per cent, of the cash value of the real estate and improvements. Applications for loans will not be entertained at the home office unless first approved by local boards, and when deemed necessary our traveling appraiser views the property before loans are granted. The rate of interest .will be six per cent, per annum on the money loaned. All members desiring loans will be charged a fixed rate of fifty per cent, premium. All interest is payable monthly in advance, with dues. The premium is not paid in cash; but a borrower must carry stock enough so that its par value' will be equal to the amount of the loan and premium together. All that is required of the borrower is to pay the interest on the loan and the monthly payments on the stock. When the stock matures it repays the loan and premium.\\\"\\nThe appellant's attorneys contend that the foregoing provisions in the certificate refer to the contract for subscription to stock, and not to the contract for the repayment of the loan evidenced by the bond and mortgage. The regulation as to loans shows that the interest was to be paid monthly in advance, with the dues, in the manner stated in the said certificate. The parties did not contemplate that the contract should be construed in part by the laws of Georgia and in part by the laws of South Carolina. The circumstances relied rrpon by the appellant are not sufficient to sustain a contrary view.\\nThe next question which will be considered is whether the contract was construed in accordance with the laws of Georgia. It was incumbent on the appellant to show that there was error on the part of the Circuit Judge, which has not been done, as the principles announced by the Circuit Judge are in conformity with the cases of Equitable B. & L. A. v. Vance, 49 S. C., 402, and Equitable B. & L. A. v. Hoffman, 50 S. C., 303. The legislature, at its last session, wisely passed an act, that \\\"all contracts secured by mortgage of real estate situate within this State shall be subject to and construed by the laws of this State regulating the rate of interest allowed, and in all other respects, without regard to the place named for the performance of the same.\\\" 22 Stat., 747. The act, however, has no application to this case.\\nHaving reached these conclusions upon the two questions which we have considered, it becomes unnecessary to consider the other exceptions, as the questions raised by them are merely speculative.\\nIt is the judgment of this Court, that the judgment of the Circuit Court be affirmed.\"}"
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diff --git a/sc/8716023.json b/sc/8716023.json
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+"{\"id\": \"8716023\", \"name\": \"Henry B. Hogg vs. Edmond Martin, Administrator of W. D. Martin\", \"name_abbreviation\": \"Hogg v. Martin\", \"decision_date\": \"1836-05-10\", \"docket_number\": \"\", \"first_page\": \"156\", \"last_page\": \"158\", \"citations\": \"1 Ril. 156\", \"volume\": \"22\", \"reporter\": \"South Carolina Law Reports\", \"court\": \"South Carolina Court of Appeals\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T21:38:35.424795+00:00\", \"provenance\": \"CAP\", \"judges\": \"JOHN B. O\\u2019NEALL,\", \"parties\": \"Henry B. Hogg vs. Edmond Martin, Administrator of W. D. Martin.\", \"head_matter\": \"Henry B. Hogg vs. Edmond Martin, Administrator of W. D. Martin.\\nTried before his Honor Judge Evans, Beaufort, Spring Term, 1835.\\nOn the 4th November, 1825, the plaintiff lodged with the late Judge Martin,^ a note of one James Hogg, to John Hogg, dated 13th February, 1821; whereon w,re endorsed divers credits, the last of which is dated in April, 1823, for #68. Toe note was for #200. At the time the note was lodged, Judge Martin gave a receipt, under a copy of the note, in these words: \\u201c Received of H. B. Hogg, the original note, of which, the above is a copy. Wm. D. Martin.\\u201d\\nNo action was brought on this noto, until (he 18th October, 1830, when a writ was sued out by Martin & Davant, in the name of John Hogg, the original payee, against John H. Hogg administrator of James Hogg, who had died, after the note was lodged for collection, and before action brought. The declaration was regularly filed, and the case was at issue at spring term, 1831. The defendant pleaded the general issue, and statute of limitations. There was also a discount filed of f 104. The case was tried at spring term, 1833, when the jury returned this verdict: \\u201c We find for the defendant on the plea of the statute of limitations.\\u201d\\nSoon after this decision, an action was brought by the plaintiff, to charge the defendant, as administrator of Judge Martin, on the ground, that the debt had been lost by his negligence.\\nOn the part of the defendant, it was contended: 1. That his intestate had been guilty of no negligence, 2. That nothing was due on the note, and therefore the plaintiff had sustained no injury.\\nTo support these grounds of defence, Johu H. Hogg, the administrator of James Hogg, and the defendant in the original action, was examined. He stated, that soon after the note was lodged, Judge Martin wrote to him, informing him, that the note was lodged for suit. It was iu his father\\u2019s life-time, who died in July, 1826. He called on Martin, and shewed him the discount. His father wrote to John Hogg, the payee, who was the owner of the debt, and requested him to come to a settlement. He, (the witness,) saw John Hogg, and shewed him the discount. He admitted the discount, but objected to the amount charged for ginning six bales of cotton. This item, it was agreed between them, should be left to arbitration. Of this arrangement, he believes, he gave Martin notice.\\nThis witness said, that of his own knowledge, he knew the discount was justly due to his father, and he was still willing to try the case on that issue. The note was payable to bearer; but this witness said it was the property of John Hogg. I do not remember if any evidence was offered to shew any title of the plaintiff in the note, except that it appeared, from the receipt, he was in possession when the note was lodged.\\nI did not perceive any difficulty in the law of the case. An agent or attorney is liable for losses sustained by his negligence. The questions of negligence and injury were questions of fact submitted to the jury, who decided them by finding for the defendant. I could perceive no objection to the competency of the witness, Hogg, or to the proof made by him, that the discount was justly due to his father, the drawer of the note. It was not res adjudicata as between these parties. The question was, had the plaintiff sustained any injury? He surely had not, if there was no subsisting debt: nor could the attorney be guilty of negligence in forbearing to bring the suit, when the parties had agreed to leave one of the matters in dispute to arbitration; the decision of which, by that tribunal, would render an action unnecessary.\\nI should have stated in the proper place, that evidence was admitted of Martin\\u2019s diligence and attention to the interests of his clients. This was relied on to rebut any inference of negligence; and I told the jury it was a fact entitled to some consideration in making up their verdict.\\nJOS\\u00cdAH J. EVANS.\\nGrounds of Appeal,\\nlet. That the court erred in admitting parole evidence of a discount, which had been duly pleaded in a suit uetween the- proper parties, and bv the verdict of the jury in that case decided to be bo de-fence: it being respectfully submitted, that the question as to the dis. count was res judicata, and that the admission of parol testimony to contradict the record was illegal.\\n2. That when a client deposits a note, or other cause of action, with an attorney, for collection, the presumption of lav/, in the ab-\\u00a1asnee of all testimony to the contrary, is, that he is instructed to sue within a reason&ule time, arid before the extinguishment of the client\\u2019s legal right by lapse of tune.\\n3d. That the fact o\\u00ed a suit having been commenced on the note, by the attorney, the defendant\\u2019s intestate, and prosecuted to judgment after it wns barred by the statute ol limitations, ivas of itself fsuffieieut to negative the presumption, if any such existed, that he was instructed to give time.\\n4th. That if the defendant\\u2019s intestate was deterred fay the discount afterwards sent by John H. Hogg, administrator of James liogg, from suing the note earlier, of which there was no evidence, it constitutes no sufficient justification: inasmuch as the verdict of ti,-- jury, sustaining the plea of the statute of limitations only, was a, legal decision, that the discount was not valid; and, in the absence ol all proof of instructions from the client authorizing the delay, ike justification of the attorney, in granting it, must depend upon the event.\\n5th. That there was no sufficient evidence to excuse the negligence of the defendant\\u2019s intestate in not suing until the debt was barred by the statute of limitations, and his honor ought so .to have charged.\\n6th. That the verdict is ia every respect contrary to law and the evidence.\\nE. W. SINGELLTON. Plaintiff\\u2019s Attorney\\nBA&Eir, for motion\\u201e\\nPjbtighu, contra.\\nFiled 10th May, 1836.\", \"word_count\": \"1097\", \"char_count\": \"6166\", \"text\": \"We concur in the law of the case as ruled by the Judge below. Upon the facts we perceive no reason to be dissatisfied with the verdict of the Jury. The motion is dismissed.\\nJOHN B. O'NEALL,\\nHENRY V/. BESA\\u00dcSS'\\u00dcE'E,\\n3. JOHNSTON,\\n3. S. RICHARDSON,\\nWf. HARPER,\\nA. P. BUTLEJR,\\nB. 3- EARLE.\"}"
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diff --git a/sc/8716068.json b/sc/8716068.json
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+"{\"id\": \"8716068\", \"name\": \"The State v. Albert Cordes\", \"name_abbreviation\": \"State v. Cordes\", \"decision_date\": \"1839-02\", \"docket_number\": \"\", \"first_page\": \"152\", \"last_page\": \"157\", \"citations\": \"1 Rice 152\", \"volume\": \"24\", \"reporter\": \"South Carolina Law Reports\", \"court\": \"South Carolina Court of Appeals\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T23:40:26.960911+00:00\", \"provenance\": \"CAP\", \"judges\": \"O\\u2019Neall and Betlek, Justices, concurred. Eaexe, J. absent at the hearing, but concurred in the judgment.\", \"parties\": \"The State v. Albert Cordes.\", \"head_matter\": \"The State v. Albert Cordes.\\nIndictment under the act of 1836, (Acts, p. 60,) for harboring one F. C. Lenderman, a deserted seaman. By the shipping articles of the Bremen barque Elizabeth, Lenderman bound himself \\u201c'to go in her as a seaman, from Bremen to Baltimore, and from Baltimore back again to Bremen, or any other place where our destiny may be, or the further voyages may goand that \\u201c he would not leave the ship out of the country (from home), nor demand his discharge, nor his wages that have not been received from a foreign tribunal.\\u201d Held, that by the articles, the vessel, after reaching her port of destination, might proceed to other ports before her return to Bremen; and that her coming from Baltimore to Charleston did not constitute such an unreasonable lengthening, either of the principal voyage contemplated, or its duration, as to render the contract void, or. entitle the seamen to be discharged from the vessel.\\u2014 The seaman, Lenderman, being still bound to the vessel, and the defendant having been found guilty of harboring him while he deserted from the ship, the court refused to grant a new trial; two juries having found the defendant guilty on the evidence.\\nThis case came up on an- appeal from the City Court. It was tried before his honor, the recorder, (Jacob Axson, Esq.) at April term, 1838. The report of the recorder is as follows: \\u201c This was an indictment against the defendant, under the act of 1836, for harboring an articled seaman, F. C. Lenderman. This was a second trial of this case, and all the evidence reported to the court on the first trial was by consent, received in this. That testimony was- in substance as follows: \\u201c Lewis Trappman, sworn \\u2014 testified that the articles produced to him are the shipping articles of the Bremen barque Elizabeth: they were deposited as such with him in his official capacity as Consul of Bremen: they are certified as having been executed in Bremen: don\\u2019t know the signatures: knows nothing of the paper, but that it came out with that ship, and was deposited in his office: knows the captain personally: don\\u2019t know the sailors: the names of Lenderman and Stenkin are there. [Mr. Thompson objected to the receiving the articles in evidence, not having been sufficiently proved. I overruled the objection, and permitted the articles to go to the jury.] C. P. L. Westendorff, sworn \\u2014 gave the following translation of the parts material to the case : 1st article \\u2014 \\u201c to go from Bremen to Baltimore, and from Baltimore back again to this place, (Bremen) or any other place where our destiny may be, or the further voyages may go.\\u201d Article 5th, part 1st, \\u2014 the seamen bind themselves that \\u201c they will not leave the ship out of the country, (from home) nor demand our discharge nor our wages that have not been received from a foreign tribunal.\\u201d\\u2014 John Meyer, sworn \\u2014 testified that on 29th March last, he was at the theatre: that Edward Wood, the constable, and the captain of the Elizabeth called on him, to assist in looking for his seamen: witness asked if they had a warrant: they said yes: they together went to Cordes\\u2019 (defendant\\u2019s) house in King-street: witness got upon the gate: staid there some time: heard different voices in the house: called to the captain, and told him he believed his seamen were there: came down and knocked at the door: some time before the door was open : the door was opened by Mrs. Cordes : believes it to be her: told her what they came for: she said they had no business there : he said he had a warrant for two sailors, naming them, to wit, Lenderman and Stenkin\\u2014 the captain named them to Mrs. Cordes. Cordes, the defendant, came down stairs and asked what was the matter: told him they came to search for the seamen, naming them: he (Cordes) replied, if he had not heard two days previous that the warrant was out for them, they would have found them there, but he had taken damned good care that they should not get them: concluded to search, but they could not find them: the captain repeated the names of the seamen several times in the presence of Cordes.\\u2014 On his cross-examination, was asked for the warrant under which he acted, which was produced. He said an action was brought against him for trespass for entering Cordes\\u2019 house : he (witness) advised this prosecution against Cordes: did so that very night, before he heard of any action to be brought against him. He says Cordes keeps boarders, can\\u2019t say they are sailors: have that appearance: Cordes is a baker by trade. Upon being asked if he knew any thing against defendant\\u2019s character, he said that Mr. Smith, late attorney general, did not -like him; he prosecuted him for beating his goat. Witness did not ask Cordes if he had concealed these persons; the captain did, to which Cordes made the reply above stated, that he had taken care they should' not find them. Does not know that Lenderman or Stenkin belonged to the Elizabeth, or deserted from her ; knows nothing about them. He said Cordes was much irritated; abused them very much, until he threatened to put him in the guard house if he did not desist. Witness himself was a little irritated at last. Defendant would not let them read the warrant to him. Cordes spoke alternately in English and Dutch; he was not in a very violent passion when he said he had taken damned good care' they should not find them. Cordes admitted that he had heard- the seamen had run away. In reply, he said Cordes lives in King-street, in the corporate limits.- Cordes spoke in Dutch when he first came down stairs. The captain mentioned the names of all the men three or four times: Cordes admitted that he had heard these' men had run away. \\u2014 Defence. Albert C. Curtis, sworn \\u2014 testified he lives in Cordes\\u2019 house: hires a shop in front, and boards with him: knows Lenderman: has seen him at Cordes\\u2019 house. Lenderman was an acquaintance of Cordes\\u2019 in the old country: were neighbors there: came to Cordes to bring accounts from his family: came always openly, never secretly: never knew of any seamen secreted in Cordes\\u2019 house by day or by night. Recollects the night Meyer and the captain came to Cordes\\u2019: was present the greater part of the time they were there : did not hear Cordes admit that any seamen of the Elizabeth were harbored in his house. The constable asked Mr. Cordes if any sailors were in his house : he said not: has seen several seamen there, but does not know if they belonged to the Elizabeth: they came generally about 7 o\\u2019clock, and went away about 10: they came to see him: they were countrymen: he heard that the seamen of the Elizabeth had run away: never saw Lenderman in the house after that. \\u2014 On his cross-examination, he said he is a cousin of Cordes, resides there free of expense, but sometimes assists him in his business. Witness knew that Lenderman belonged to the Elizabeth: was not present when Cordes came down stairs : the conversation with Mrs. Cordes was in German: saw Lenderman at Cordes\\u2019 four or five times: did. not see him there the day the constable came there : it was four or five days before that: never saw Lender-man at Cordes\\u2019 after he heard of his being a runaway, until the vessel was gone : saw him there frequently afterwards : never saw Lenderman there in the mornings, except on Sundays, and then he came at daylight: when he saw him there early in the morning, it was in the room of Cordes, down stairs, his wife being there with them: never saw Lenderman there after 10 o\\u2019clock at night: never heard Cordes say that he knew the seamen had deserted. \\u2014 J. C. Blum, sworn \\u2014 testified he knows defendant: has been dealing with him for five years : he is a baker: he is a very correct, honest man: a man of irreproachable character.\\u201d In addition, F. C. Lenderman, the seaman said to have been harbored, was adduced on the part of the state. He proved his signature to the articles: on his cross-examination, said he had been at Cordes\\u2019 house: was never there secretly: never was concealed by Cordes: never told Cordes he had run away from the vessel: never was concealed in any out-house or elsewhere. In reply, said can\\u2019t say how often he was at Cordes\\u2019: many times when the vessel was at the wharf, before he ran away: knows nothing about the constable going there : heard when he came from the country, that there was a warrant against' him: the very day he ran away, he went into the country: when the vessel was gone, came to town, and boarded at Cordes\\u2019: never went to Cordes\\u2019 after he quit the vessel and before he went into the country: went into the country immediately: heard in a shop on the neck that the vessel was gone. In reply to a question put by Mr. Thomp son, he said Cordes never encouraged him to quit the vessel, or concealed him in any way. Here the testimony closed. I charged the jury, that in order to convict the defendant, it must appear that Lenderman was an articled seaman; ha'd deserted, and had been harbored by the defendant. I charged that the articles were the contract between the captain and the mariner: if violated by the mariner he was liable to be punished: if by the captain the mariner was absolved from all obligations under them.. That coming to Charleston was not authorised by the terms of the articles, and could not be justified under the general terms, unless it was proved that it was rendered necessary by stress of weather, or other necessity, or that it was usual or indispensable to the stipulated voyage. My opinion was, and I so expressed it to the jury, that coming to Charleston was a violation of the articles, which entitled Lenderman to his discharge, and that the defendant was entitled to an acquittal. The jury found the defendant guilty, and he now moves this Court for a new trial on the following grounds. 1. Because it is submitted, his honor, the Recorder, correctly charged the jury, that Lenderman, the sailor alleged to have been harbored, was not legally bound by his articles to the barque Elizabeth, and consequently the legal offence charged in the indictment could not have been completed, and the verdict'in this respect was against law. 2. Because independent of the fact that no contract was proved to exist, binding the seaman to the barque Elizabeth in Charleston, as an articled seaman at the time of the alleged harboring, there was no evidence to prove the harboring; but on the contrary, the witness for the prosecution (the man alleged to have been harbored) expressly swore he was neither harbored nor concealed by the defendant, and the defendant submits that the verdict in this respect was palpably against evidence. 3. Because it is submitted the verdict was against the settled law and the plain evidence in the case.\", \"word_count\": \"2174\", \"char_count\": \"12491\", \"text\": \"Curia, per Evans, J.\\nI think it very clear the articles contemplated, that the vessel after reaching her port of destination might proceed to other ports before her return to Bremen, and there is nothing in the law regulating those contracts, which prohibits such agreements. Sailors are in general ignorant, and easily beguiled and defrauded; and hence, in order to prevent the impositions too often practised upon their ignorance and defenceless condition, the laws, both of England and the United States; have gone very far to relieve them from these contracts, where any unreasonable construction is attempted to be put on general terms used in the articles. If the captain of the Elizabeth, after reaching Baltimore, instead of returning to Bremen, had taken in a new freight for the South Sea Islands, for China, or Archangel, or any other distant port obviously not within the contemplation of the parties when the articles were signed, it would have been a breach of the contract by the captain, which would have discharged the sailors, and in such case Lenderman would not have been a deserter. But I apprehend the coming from Baltimore to Charleston, is not such an unreasonable lengthening either of the voyage itself or its duration, as will authorise this court to pronounce the contract void for this reason. As to the second ground, whether the testimony was sufficient to convict the defendant of harboring, I have no remark to make, except that two juries have successively found the defendant guilty on the evidence, and we are not disposed to interfere by granting a new trial.\\nThompson for the motion.\\nAttorney General, contra.\\nThe motion is therefore dismissed.\\nO'Neall and Betlek, Justices, concurred. Eaexe, J. absent at the hearing, but concurred in the judgment.\"}"
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+"{\"id\": \"8716147\", \"name\": \"The State of South Carolina vs. E. Waterman et al., sureties of J. L. E. Easterling, late Sheriff of Georgetown district\", \"name_abbreviation\": \"State v. Waterman\", \"decision_date\": \"1842-02\", \"docket_number\": \"\", \"first_page\": \"204\", \"last_page\": \"206\", \"citations\": \"2 McMul. 204\", \"volume\": \"27\", \"reporter\": \"South Carolina Law Reports\", \"court\": \"South Carolina Court of Errors\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T23:41:19.240056+00:00\", \"provenance\": \"CAP\", \"judges\": \"Richardson, O\\u2019Neall, 'Evans and Butler, JJ., concurred.\", \"parties\": \"The State of South Carolina vs. E. Waterman et al., sureties of J. L. E. Easterling, late Sheriff of Georgetown district.\", \"head_matter\": \"The State of South Carolina vs. E. Waterman et al., sureties of J. L. E. Easterling, late Sheriff of Georgetown district.\\nThese were actions of debt, on the official bond of Easterling, deceased, late sheriff of Georgetown district. The writs were issued to Spring Term, 1836, and the actions were prosecuted for the benefit of one Taylor, of New York. On the 20th April, 1836, after tire commencement of these suits, C. & C., who were judgment creditors of Easter-ling, filed a bill in the Court of Equity for Georgetown district, against his executor, for an account. On the 27th of the same month, the Court made an order for tire creditors to file statements of their claims, on oath, by the 1st January, 1837, with the Commissioner ; and another order, enjoining them front proceeding at law against tire executor. Tire time for filing claims was afterwards extended to January, 1838. In January, 1838, the Commissioner made, a report of claims which had been filed in his office against Easterling, in his official capacity only; and the Court thereupon made a decree, that the sureties pay the amount of said claims to tire Commissioner, and that execution issue against them, accordingly; and further, that the creditors of the sheriff, who had failed to file their claims, be perpetually enjoined from pursuing the same against the sureties. Taylor\\u2019s claim was not filed in the Commissioner\\u2019s office, and, at Pall Term, 1838, these cases, which had been on the writs of enquiry docket, sinceFali;Term, 1836, were struck off. Notice was afterwards given to the defendants, that a motion would be made to restore them; and at Spring Term, 1839, such a motion was made, and affidavits offered on both sides. After hearing counsel, the Court made an order to restore them to the docket. The defendants gave notice of an appeal from this order, but did not prosecute it. \\u25a0 On the call of these cases for trial, at Spring Term, 1840, the defendants again moved to strike them from the docket, and his Honor, Judge Evans, presiding, granted the motion. Held, that it was an improper order in fhe Court below, and the cases were ordered to be restored to the docket.\\nBefore Evans, J., at Georgetown, Spring Term, 1840.\\nThe above abstract presents the facts of this case, as they existed at the time the order was made by his.Hon- or, and the following are the grounds upon which the appeal was carried up, and which were argued in this Court.\\nGrounds of Appeal.\\n1. Because the decree of the Court of Equity, in the case of C. & C. against the executor of Easterling, cannot have any further effect than to exonerate the executor. The sureties of Easterling, as sheriff, are certainly liable for all claims against the sheriff, whether filed and proved agreeably to the order of the Court, or not, so long as the amount paid by them, and distributed under said decree, is not equal to the penalty of their bond.\\n2. Because the injunction, ordered by the Court of Equity, cannot effect Taylor\\u2019s rights, as he was never a party to the proceedings in the Court of Equity; neither were the sureties of Easterling.\\n3. The creditors of the sheriff cannot be restricted to a shorter period for bringing suits against the sheriff\\u2019s sureties, on their bond, than that established by the law of the land.\\n4. Because the motion to strike the cases from the docket again, was irregular, and ought not to have been entertained.\", \"word_count\": \"1010\", \"char_count\": \"5901\", \"text\": \"Curia, per\\nWardlaw, J.\\nThese cases were struck from the docket, either because it was supposed the injunction, ordered in Equity, prevented the Court of law from proceeding, or because, under the view which was taken of the equity proceedings, all further attempts by the plaintiff at law, were considered hopeless. But it does not appear to this Court that the Court below should have interfered to prevent the plaintiff from proceeding, if he would.\\nAn injunction restrains those upon whom it is properly served, according to the order and practice of the Court of Equity; for breach of it, remedy may be had in the Court from which it issues; but it is not served upon a Court of law; and although a Court of law, regulating its own practice, will sometimes, in reference to advantages which, by reason of an injunction procured by himself, a defendant at law might also obtain from lapse of time, notice the fact that proceedings have been suspended by injunction, yet it will not undertake to prescribe or enforce the duty of its plaintiff served with an injunction, but taking care that no surprise be operated, or unfair advantage gained, will leave him to determine his course, at his own peril.\\nWhether there was an injunction, whether it had been served upon the plaintiff, whether it restrained proceedings against the sureties, who were bound by it, are all questions for the Court of equity, which the Court of law was not properly called on to decide, and had not the means of determining. The plaintiff', if advised to pursue his rights further, must for himself choose between proceeding at law, and going into equity, to prove his demand upon the foot of the decree rendered there.\\nPetigru & Lesesne, for the motion. Hunt, contra.\\nThe Court has been pressed to lay down general rules upon the subject of creditors' bills, but being well content with the course of decision hitherto had on that subject, and perceiving that, to the reasons upon which the jurisdiction and beneficial interference of equity in the administration of complicated and insolvent estates are elsewhere rested, may here be added the disturbance of legal sureties, which necessarily results from the sale by a sheriff, under execution, of the lands of a deceased insolvent, the Court declines to do more than decide the questions presented at the threshold of the case in hand.\\nThe motion is granted, and the cases restored to the docket.\\nRichardson, O'Neall, 'Evans and Butler, JJ., concurred.\"}"
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+"{\"id\": \"8858022\", \"name\": \"Ingram vs. Porter\", \"name_abbreviation\": \"Ingram v. Porter\", \"decision_date\": \"1827-01\", \"docket_number\": \"\", \"first_page\": \"198\", \"last_page\": \"202\", \"citations\": \"4 McCord 198\", \"volume\": \"15\", \"reporter\": \"South Carolina Law Reports\", \"court\": \"South Carolina Court of Appeals\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T22:55:09.262360+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Ingram vs. Porter.\", \"head_matter\": \"Ingram vs. Porter.\\nA father by deed of gift gave to his daughter a slave \\u201c to hold &c. after his death.\\u201d Held that the right of property vested immediately in the daughter, and her right barred by the statute of limitations, during the life of the father.\\nA future interest in a chattel, opposed to the present interest in the grantor, cannot be created.\\nWhere the habendum of a deed is wholly inconsistent with the premises, so that they cannot stand together, the habendum must be considered as void.\\nThe doctrine of covenants to stand seized stated.\\nA paper sometimes in form of a deed, may be considered a will.\\nDelivery of a deed to a proper officer to record, is such a delivery as consummates the deed.\\nThis was an action of deblinue for a negro slave. The plaintiff claimed under a bill of sale from Jos. Ingram, who purchased the negro in Dec. 1809, in North Carolina, from Daniel Porter, and sold to thei plaintiff 10th April, 1810, who had possession until March 1820. Daniel Porter died in 1820. This suit was commenqed soon after. The defendants claimed under a deed of gift from Daniel Porter to his daughter, the wife of defendant. This deed was executed the 20th Feb. 1802, and recorded in the Register\\u2019s Office of North Carolina. The witnesses to this deed were dead, the original' had been destroyed and an office copy was given in evidence; but no proof of the delivery of the deed was made out. Daniel Porters\\u2019 daughter at the time was quite a child living with her father. This deed was in the following words:\\n\\u201c To all to whom these presents may come, I, Daniel Porter, of the state of North Carolina, and county of An-son, send greeting. Know ye, that I the said Daniel Porter, for and in consideration of the natural love and affection, which I have and bear unto my beloved daughter Phoebe Porter, of the state and county aforesaid, and divers other good causes and considerations me thereunto moving, have given and granted, and by these presents do give and grant unto tbe said Pboebe Porter, rall and singular, one negro girl named Rose, to have hold and enjoy all and singular the said negro girl, Rose, after my death to the said Phoebe Porter, her heirs, executors, and assigns, to the only proper use and behoof of her the said Phoebe Porter, her heirs and assigns forever, and I the said Daniel Porter all and singular the said negro girl Rose to the said Phoebe Porter her heirs, executors, and assigns, against all persons whatever shall and will warrant and forever defend by these presents. In witness whereof I the said Daniel Porter, have hereunto set my hand and seal this 26th February, 1802.\\u201d\\nThe defendant contended that the deed gave only a life estate to Porter, remainder in fee to his daughter, and that the deed was valid.\\nThe plaintiff replied that the deed was fraudulent, that it was also void from the nature of it, and that if it were valid that the plaintiff had a legal right under the statute of limitations.\\nThe case was tried before Huger, J. who charged the jury in favor of the deed, and for the defendant on all the grounds. The jury found a verdict for the defendant, and the plaintiff appealed.\\nBrickell and M\\u2019 Cord.,for the appeal.\\nThis paper may be regarded as a testamentary paper; if so, it was revocable, and actually revoked by the subsequent sale. 1 Phil-limore 242. There was no proof of the delivery of the deed. Nothing to consummate the contract. 2 Black. Com. 306, 441. As to the statute of limitations they cited 1 Brev. 170. 2 Seh. and Lif. 628. The limitation in the deed was also void under the authority of the cases of Vernon vs. Inabnet, 3 Brev. MS. R. 380, and Cooper vs. Cooper lb. 320.\\nThe deed was also fraudulent and void against a purchaser without notice from the donor.\\nBauskett and Gregg, in reply.\\nThe deed was recorded. That was sufficient evidence to raise the presumption of a delivery. They contended that the deed was valid, and that the verdict should be supported.\", \"word_count\": \"1642\", \"char_count\": \"8987\", \"text\": \"Curia, per\\nCojdcock, J.\\nThis case has been detained by the court for a long time, in the hope that a decision which is said to have been made by the constitutional court, on a case bearing a strong analogy to this, would have been procured. But as it cannot be had, we must decide the case.\\nIn the former opinion the court did not determine how the daughter would take under the deed, but only generally that they were of opinion she had an interest under the deed, and from all the circumstances of the case we entertain the same opinion. Where the habendum of a deed is so wholly inconsistent with and repugnant to the premises, so that they cannot stand together, the habendum must be considered as void, and if the premises pass any thing the grantee shall hold. Now in the first part of this deed the property is given absolutely and in present\\u00ed.\\u2014 The habendum after the death of the father is utterly inconsistent with the present interest, and therefore cannot take effect. Delivery is indispensable to the completion of a deed, and in this case the delivery to the officer to be recorded for the benefit of the daughter, may be considered as a sufficient delivery. And thus an absolute right in the negro may be considered as passed to the daughter. But under the circumstances such an interest would not benefit the defendant, and therefore it was contended that this deed may be considered as conveying a future interests to the daughter, the property to be held in the mean time by the father. It was urged that the obvious intention of the party ought to be effectuated if possible, and that it had been held in cases like the one before us, that such a deed of real property though not good as a bargain .awl sale for the want of a consideration, nor as a release for the want of a lease for a year, nor as a feoffment for the want of livery, yet should be held good as a covenant to stand seized, and that by analogy this might be considered as giving the right to the daughter and making the father trustee for life, or to the daughter as trustee for the father for his life. But this cannot be done, for the rules of law in relation to the alienation of real property, are essentially different from those which relate to personal. When it is said the deed must operate if it can, it is meant if it can consistently with the meaning of the parties, as regulated by the rules of law. It is not intended that the plain and obvious meaning of words are to be entirely changed, and that those wills which are peculiarly applicable to one subject are to be applied to another, for this would in effect be making a deed and not construing one. Now such a deed conveying land has been held to operate as a covenant to stand seized, by the operation of rules exclusively applicable to real estate. The grantor conveys an interest reserving a use, and by the statute of uses that use is converted into possession, and he is in holding for the grantee. 4 Mass. 135. But this statute relates entirely to lands, and cOuld not in the nature of things be applied to personal property, for the possession of that is always prima facie evidence of ownership; whereas in those days in which these rules of law, as applicable to real property, had their origin, the possession of it was for the most part in those who did not own it, and those who possessed as well as those who owned it, were subject to a great many services and duties which it was the object of the statute to secure. But even in relation to land, where one has a personal right in it, such a deed would pass a present and absolute right to the grantee. That is, all the right of the grantor. Coke says, if Termor grant the unexpired term, habendum after his death, it passeth : for one cannot be tenant to a dead man. The idea is clearly-expressed that a future interest in a chattel, opposed to-the present in the grantor, cannot be created. If given it passes at once. If not given, of course it cannot pass, but must depend on the future will of the grantor. Such \\u00e1 deed as this found among a man's papers, who died in the possession of the property given, might perhapsunder circumstances be considered a will.\\nIf it were possible to consider this as \\u00e1 covenant between the parties,, the father by a sale has broken his covenant, and that might give the daughter a right of action, but could not give her a right- to the property in opposition to that of the purchaser.\\nThe case must be considered as at an end, for the property being absolutely vested in the daughter by the deed, she is barred by the statute of limitations, and this renders it unnecessary' to say any thing on the other grounds taken in the brief; and the same result would follow if the daughter took nothing by the deed. The plaintiff must recover. From my best recollection of the case of M'Michael and Inabnet, \\u00e1lluded to in the first part of this opinion, it was in some respects like the case before us, except as to the delivery.\\nNew Trial granted.\\nSee Harper's L. R. 492.\"}"
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diff --git a/sc/8859278.json b/sc/8859278.json
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+"{\"id\": \"8859278\", \"name\": \"Jones vs. Blair, Sheriff\", \"name_abbreviation\": \"Jones v. Blair\", \"decision_date\": \"1827-06\", \"docket_number\": \"\", \"first_page\": \"281\", \"last_page\": \"282\", \"citations\": \"4 McCord 281\", \"volume\": \"15\", \"reporter\": \"South Carolina Law Reports\", \"court\": \"South Carolina Court of Appeals\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T22:55:09.262360+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Jones vs. Blair, Sheriff.\", \"head_matter\": \"Jones vs. Blair, Sheriff.\\nAlthough the Sheriff may, in an action on the case against him for an escape, prove the insolvency of the defendant to reduce the damages, yet he must also shew some other circumstance in excuse or mitigation, or the Jury must give damages to the amount of the whole debt.\\nButin an action on the ease against the Sherifi for taking insolvent surities to a prison boundsbond, where the defendant was committed under a Ca. Sa. the solvency of the defendant cannot be enquired into, as the only measure of damages is the amount due on the execution, under which the defendant took the bounds.\\nThis was an action on the case against the Sheriff for not taking solvent sureties on a prison bounds bond, given by one Crowder who was in confinement under a Ca. Sa. issued in a suit of the Plaintiffs against Crowder. Proof was offered of the insolvency of the sureties as well as of Crowder, at the time he gave the bond.\\u2014 Waites, J, who tried the cause, charged the Jury, that though the Sheriff was answerable for the solvency of the sureties, yet if the principal, Crowder, was himself insolvent, that the Plaintiff had sustained no damage, and they might find for the Sheriff Verdict for the defendant. The Plaintiff appealed.\\nMiller, for the appeal.\\nWilliams, contra.\", \"word_count\": \"590\", \"char_count\": \"3231\", \"text\": \"Curia, per\\nNott, J.\\nIt has been decided in the cases of Brown, vs. Belcher, and Boyce, vs. Barksdale, that in an action on the case against the Sheriff for an escape the Jury were not bound to give a verdict for the whole amount of the debt due to the Plaintiff, but might give such damages as they supposed the Plaintiff may have sustained by reason of the escape. But even in such cases unless the Sheriff can shew some circumstance in excuse or mitigation, I think the Jury ought to give the whole debt, and not to speculate upon the probable chance which the Plaintiff had of recovering the whole, if the escape had \\u00abnot taken place. But in this case the Plaintiff stands upon still higher ground. A person who is taken on a Ca. Sa. is required to give satisfactory security to the Sheriff, that he will within forty days render to the Clerk of the Court a schedule on oath of his whole estate, or so much thereof as will pay and satisfy the sum due on the execution by force of which he is confined, and the Sheriff is made responsible for the solvency of such security. If, therefore, the Sheriff takes good security, as he is required to do, the Plaintiff will recover the whole debt; because in an action on the Bond, the amount due on the execution is the measure by which the damages are to be estimated for the non performance of the condition. Smyth vs Wigfall, 2, Nott and M'Cord, 135. And if the Sheriff is responsible for the solvency of the surety, he must be liable to the same extent.\\u2014 Whether the person was insolvent or not, was a question which could not enter into the consideration of the case. To hold the insolvency of the party to be a justification for the Sheriff, would amount to a license to take mere nominal security in all cases of this sort. I am of opinion that the presiding Judge erred in his instructions to the Jury, and that a new trial must therefore be granted.\\nNew Trial granted.\\nVide ante, 141.\"}"
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diff --git a/sc/8862543.json b/sc/8862543.json
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+"{\"id\": \"8862543\", \"name\": \"James H. White vs. Jonathan Helmes\", \"name_abbreviation\": \"White v. Helmes\", \"decision_date\": \"1821-05\", \"docket_number\": \"\", \"first_page\": \"430\", \"last_page\": \"439\", \"citations\": \"1 McCord 430\", \"volume\": \"12\", \"reporter\": \"South Carolina Law Reports\", \"court\": \"Constitutional Court of South Carolina\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-11T00:21:53.304319+00:00\", \"provenance\": \"CAP\", \"judges\": \"J ustices Nott, Huger and Richardson, concurred.\", \"parties\": \"James H. White vs. Jonathan Helmes.\", \"head_matter\": \"James H. White vs. Jonathan Helmes.\\nA free neg-ro is an incompetent witness in any case where the rights of white persons are1 concerned.\\nR is not necessary to a will of personal property that it should have two witnesses ; nor any, indeed, so the hand wirting. of the testator can be proved, (a.)\\nSt is not necessary to constitute a paper a will, that the animo lestandi should appear on the face of the paper.\\nWill. Caveat.\\nJl HE testimony in the case was as follows :\\nHenry Verner was first sworn, and on being questioned ns to his knowledge of the instrument offered for probate, deposed as follows: That Daniel Leger twice sent for him on the morning of the third of April by two servants; that he hastened to the residence of the deceased, and found him very sick; that after the usual salutations, Leger requested him to draw some writings for him; that be- iievmg Leger wanted his will written, he observed that he did not know the form of one, but that he would write down what he (Leger) wanted written ; that he then wrote the following lines, word for word as directed by \\u2022said Leger:\\n\\u201c I give to Jonathan. Helmes all my lands' and negroes, tools, house/told furniture, hogs and rice and bacon ; to James White, I give all my cattle.\\u201d\\nApril ,3, 1820. Daniel Leger.\\nl\\u00ede then read the instrument to Leger ; Leger then too?; it, and being raised up in his bed, signed it. He said that himself and Leger were not intimate, and seldom saw each other more than twice or thrice a year. He resided about a mile from Leger, and knew him well by sight. He believed him to be of sound and disposing mind, memory and understanding at the time he signed the instrument. When he asked Leger why he did not give his property to his relations, he replied, \\u201c that he had not been well treated by them; that Mr. Helmes was a good man, arid that he wished him to have his property.\\u201d Verner was again questioned as to the sanity of the testator, and replied, that he believed Leger to be as rational as himself at the time he signed the instrument; and during his conversation on the subject of the disposition of his property, that as often as twice he heard Leger say White should not have his property. On cross-examination, Verner said, Leger never told him he had sent for him ; that there were none but negroes at LegeVs when he arrived at his house ; that he dated the instrument when he went home, the same day it was written ; that the h and d interlined were made at the same tim\\u00e9, as a correction of the spelling. He staid with Leger one hour, and that the only conversation had with him during that hour, was that already stated ; that he believed him to be in his right mind from the reasons already stated and none others; that from themanner in which Leger spoke and his looks, he did not believe he would die; that he sat in his bed and took s drink of water just before he left him, but th\\u00e1t he drank it \\u25a0 With pain, Mr. White said he was no relation, and deceased had other relations besides White's children. It was three or four months previous to the death of Leger, when he said, 4\\u2018 White should not have any' of his property.\\u201d This wit* ness further said, that after Leger had signed the paper, he returned it to him ; that while he was dozing in sleep, he heard him say \\u201c where are my negroes, they are all scatteredthat during his stay with Leger, his pulse was irregular and his hands cold ; that there were but two ne-groes with Leger, and that two of those were sent as messengers ; that though Leger said, when dozing, \\u201c where are my negroes, they are all scattered,\\u201d he believed him, on being awaked, tobe as rational as he ever had been.\\nDr. John Wragg was nest sworn for the plaintiff, and deposed, \\u201cthat he was at Leger's on the 2nd of April, at 12 o\\u2019clock; that his disease was epidemic ; that his lungs Wereso much effused as to render respiration very difficult. He remained with him half an hour or more, and had no doubt his disease would terminate fatally. Both Leger and White were anxious he should return the next day. He told them he would do so; but that it was more to gratify his patient and friend, than from any hope of his being able to relieve him. It was raining, and Leger situated between two doors, his hands as cold as though he had an ague, and servants fanning him occasionally to erfable him to breath. -He saw no evidence of delirium,, his Stay being only half an hour; but that he believed him to be too near the article of death, to make a legal will; and that from a consideration that Leger would die, he did not visit him on the 3rd. until he had visited other patients on Pee Dee. On his arrival, he found Leger a corpse.\\nfames Britt, against the caveat, said he was well acquainted with Daniel Leger ; that about a month previous to his death, he heard him say he would leave his property to fonalhan Efelmes. That Leger and Helmes were very intimate, and frequently visited each other.\\n, Charles Hopkins said, that \\u00a1n a conversation with .Leger at his house in the last winter, oh the subject of the disposition of his property, Leger said he would give his property to a person little expected, and that he would not give it to James White, by whom he said he had been ill treated. On cross-examination, he said Leger was a tram apt to change his mind. He never said he would give his property to Helmes, nor did he say he would give it to James White's children.\\nChristopher Watts said that in June, 1819, Leger said to hint, that neither James White nor any of his, should ever have any of his property. In January last, he repeated the same words. Leger frequently spoke of Helmes as a friend.\\nThomas Britt said, that Leger, about two months previous to his death, told him he would leave his property to Jonathan Helmes. ,\\nThomas Blunt said, that Leger and Helmes were intimate- and frequently in company with each other.\\n\\u25a0> Francis Heartly said, that he had seen Leger write, and that his name on the instrument now offered for probate was his own proper signature ; that sometimes he spoke well of White and at other times very differently; that he spoke well of White shortly after his first marriage, but that latterly when .conversing about White, he invariably gave him a bad character. Leger and White were remarkably intimate and friendly.\\nAmos Heartly said,'that about two years since, Leger told him, he did not wish James White to have any of his property; that he would sooner give it to a stranger than to James White. On cross-examination, Heartly said, Leger was apt to change his mind.\\n- Moses Bourne said, that early in March last, he was at -Leger's house, and that at dinner, after some conversation relative to Mr. White, Leger said, White should not have any of his property or any thing to do with it.\\nBurrell Bird, against the will, said, that he was at Dan-r*l Leger's house on the 2nd of April, between the hours of 11 and 12 o\\u2019clock, and that he remained till 1 or 2 o\\u2019clock; that Leger appeared to be in great pain and agony; that Dr. Wragg arrived during his stay with Leger. He believed Leger to be in too much pain to make a will; that from the misery and restlessness in which he was, he did not believe him to be in his right mind ; that when Mr. Palmer asked him, if he had disposed of his property, he replied, \\u201cno!\\u201d and muttered some other words in atone of voice too indistinct to be understood.\\nCcley Kales said, that in the fall of 1819, after the death of Mrs. White (the first wife of While,) she heard Leger say, that if he died before he married, White's children should have his property.\\nThe counsel for White here brought forward a free negro to give testimony, to whom the court objected, on the ground that such testimony would be without precedent and against the policy of the state.\\nJames White was then sworn, and said, that on the evening of the second of April, he left Leger and visited him again in the morning of the following day about 10 o\\u2019clock, at which time Mr. Vernier was with him; that a short time after his arrival, Mr. Verner left the house, and that Leger appeared to be out of his senses at intervals on the night of the 2nd of April. On the morning of the 3rd, he found him much worse, and that Leger asked him to feel his pulse and say, if he was not much better ; that he told him he was, but at the same time thought differently. Leger said to him, he knew he should die, and requested him to have his body decently interred ; that from the incoherent expressions of Leger on the third, (after the will was drawn) he was certain Leger was not in his right mind. He was speaking of fishing and hunting, &c. White was the father of the next of kin to the deceased.\\nThis was an appeal from the ordinary of Georgetown district.\\nIn addition to the testimony offered before him, Sarah Pauls was sworn, who stated, that she knew the deceased, and heard him say, when he died,- he meant to leave his property to his sister\\u2019s children. She heard him say so only once, and could not tell when or where. She had forgotten that. She took no account of it. On her cross-* examination, she stated she believed'it was just before his sisters death.\\nThe appellants then introduced a negro woman, Eliza Salines, admitted to have been born and bred free. She was rejected, as incompetent.\\nThe case then went to the jury, and it was contended on the part of the appellant,\\n1st. That the deceased was not of sound and disposing mind.\\n2nd. That two witnesses were necessary to prove the will.-\\nThe jury found the paper to be the last will and testa* mept of Daniel Leger.\\nA motion was now made for a new trial on the grounds;\\n1st. That competent and material testimony on the part of the appellant was rejected byr the court.\\n2nd. That the presiding judge misdirected- the jury-in a matter exclusively* for their investigation, in charging that, \\u201c no evidence had been given to show that the deceased had been out of his senses at any moment before the will was made,\\u201d whereas the evidence of I)r. Wragg, of Burrell Bird and of James White, was conclusive \\u00cdQ this effect.\\n3rd.' That his honour also misled the jury in stating that two witnesses are not necessary in proving testaments in cases of contest, provided they are signed by the deceased ; and\\n\\\\ 4thly, (A ground not taken below,) ' That the paper offered, to be proved as a testament was not a testament, and parol evidence was inadmissable to prove it.\", \"word_count\": \"3317\", \"char_count\": \"17980\", \"text\": \"Mr..Justice Coleock\\ndelivered the opinion of the court.\\nOn the first ground, the court are unanimously of opinion, that the witness was properly rejected. There is no instance in which a negro has been permitted to give evi- tiene*;, except in cases of absolute and indispensable necea-\\u2022 sitv. nor indeed has this court ever recognised the propriety of admitting them in an}' case v/here the rights of white persons were '\\\"oncerned. When we consider the degraded state in width they are placed by the laws of the state, and the Ignorance in which most of them are reared, it would be unreasonable as well as impolitic to lay it down \\u00e1s a general rule that they were competent witnesses.\\nOn the second ground, the jury were instructed, that il: was .heir province to decide, whether the testator was of sound mind. 1 stated to them that the rules of law were, first, that soundness being the natural state of the human mind, insanity was not to be presumed, but that if proved to have existed before the making of a will, it was incumbent on those who wished to support the will to prove that it was made in a lucid interval. I may have said (for such was then and still is my opinion) that there was not sufficient evidence to induce them to believe that the deceased was not of sound mind at any time before his death ; and the (act is not correct, that Dr. Wragg gave it as his opinion that he was insane ; for he expressly says, \\\" he saw no evidence of delirium, but believes him to he too near the article of death to make a legal will.\\\" In his legal opinion he was incorrect; but as to the \\u2022 soundness of intellect, his opinion is entitled to great weight, and added to that of Verner, I think, is conclusive on the subject of his sanity. What is the evidence of Bird ? He did not believe him to be in his right mind. Why ? First, from his misery and restlessness ; and because when Palmer asked him, if he had disposed of his property, he replied \\\" no and muttered some other words in a tone of voice to\\u00f3 indistinct to be understood. No rule is better established than that the opinion of a witness is not evidence unless he assigns satisfactory reasons for the opinion ; unless he be a man of science and his evidence is on a scientific subject, in which he is versed. Now what are Bird's reasons ? The first is, because he was in misery and restless. This surely is not a satisfactory reason; for many a pian suffers .greatly and yet preserves the full exercise of his mind. What is the' second reason? Because he said \\\"no,\\\" when asked if he had disposed of his property. Now it is to be recollected that this was on the 2nd of April, the day before he made his will. He had not then disposed of it. This answer was both rational and true ; and yet furnished a ground of belief that the deceased was. insane ? His last reason is little better: Because he muttered some words in a tone of voice too indistinct to be understood. This may have proceeded from an unwillingness to speak, or a feeble state; both of which may have existed without insanity. His testimony then, does not prove the insanity of the deceased. White says, the deceased appeared to be out of his senses, but does not state any facts by which a jury could be induced to rely on the evidence.\\nOn the third ground, the charge to the jury was correct. They were instructed that it was not necessary that two witnesses should attest the signature of the testator, or even be present at the execution of a will which was signed by the testator ; but that if they believed Verner and Jlearlly, the one of whom drew the will and saw it executed, and the other proved the hand writing of the testator, and the witnesses who swore to his declared intention' to leave his property to Iielmes that the law was satisfied. In Roberts on Wills, 194, speaking of the civil law rule which requires two witnesses, he says, and such witnesses must he able at least to depose that the testator declared the writing produced to be his last will and testament; unless where the will or codicil was written by the testator himself, in which case the validity thereof may be established upon proof of the hand writing only, but it ought to be the evidence of such as have seen him write. Swinburne, (1 vol. p. 11,) says, \\\" so that with us it is sufficient to the effect of executing the testament, that the will and mind of the testator do appear,\\\" And in a note on tins, a will written in the testators hand, having neither name nor seal to it, nor witnesses present at the publication, is good, provided sufficient proof can be had of the hand writing, and though written in another man's hand and never signed by the testator, yet if proved to be according to- his intentions and approved by him, has been held a good testament of personal estate. He refers to Comyn 452. Bracton 61. Fleta 125. Glanville, lib. 7, chap. 6,. And in 2 Swinburne, 639, concerning the last question., whether it be necessarry that there be witnesses of a written will, this is the answer : That if it be certain and un* doubted that the testament is written or subscribed with the testator's own hand, in this case, the testimony of witnesses is not necessary ; and in a note on this he refers to Godolph, Gilbert Rep. Eq. 260, that even if not signed, it may be good.\\nOn the fourth ground, it is clear, that the law requires no particular or set form of words to constitute a will. (Ante 409.) \\\" A testament, says Swinburne, is a just sentence of our will touching that we would have done after our death.\\\" But it was contended that it must appear on the face of .the paper to have been intended to be a will; and that no parol proof could be produced to show the intention of the testator. Now it often occurs that a paper which on its face does not purport to be a will, is from circumstances considered as one ; and no circumstance can be more conclusive than its being made on a death bed. Swinburne (1 vol. 18,) in speaking of the animus testandiy \\\" which mind and purpose must be proved. by circumstances, (for words alone are not sufficient,) as that he set himself seriously to making his will, being then perhaps very sick or requiring others present to bear witness,\\\" &c. &c. (Touchstone 404.) It is the mind and not the words which doth give life to the testament. But where these circumstances are wanting and the paper does not purport to be a will, it will be so construed if it cannot be supported as any other disposition of property; ut res magis valeat quamper eat.\\nIn the case of Thorold and Thorold, Sir John Nichol says, (in deciding whether the instrument can be consid ered as testamentary,) the court always looks to the substance and not to the form, to the intention of the writer and not to the denomination he affixed to it,- and this 'was called by the writer a deed of gift. So in the case of Corp and Corp, and a number of other cases cited in the argument of that case ; (also, 1 Swinburne, p, 74.)\\nNow here is no consideration expressed, no delivery made. These are essential to constitute a deed. This then is. not a deed. It may have been destroyed by the deceased had he lived ; it therefore partook ol the quality of a will in this. If then it had been found among the deceased's' papers, there is enough on the face of it to have induced,a court to support it as a will. But with the abundant proof, both as to the animo testandi and the execution of the paper, there can be no doubt on the case.\\nThe motion is dismissed.\\nJ ustices Nott, Huger and Richardson, concurred.\"}"
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+"{\"id\": \"8864657\", \"name\": \"Parrot & Felth vs. Sam. W. Green\", \"name_abbreviation\": \"Parrot v. Green\", \"decision_date\": \"1822-05\", \"docket_number\": \"\", \"first_page\": \"531\", \"last_page\": \"532\", \"citations\": \"1 McCord 531\", \"volume\": \"12\", \"reporter\": \"South Carolina Law Reports\", \"court\": \"Constitutional Court of South Carolina\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-11T00:21:53.304319+00:00\", \"provenance\": \"CAP\", \"judges\": \"Justices Nott and Gantt, concutred.\", \"parties\": \"Parrot & Felth vs. Sam. W. Green.\", \"head_matter\": \"Parrot & Felth vs. Sam. W. Green.\\nWhere the plaintiff brings two summary processes upon two distinct notes, against the same defendant, the court will not consolidate them if the amount of both notes exceed the summary jurisdiction.\\nTwo summary processes were brought; one on a note for S44 29 1-2 ; the other on a note for t4>7 68 1-4. The defendant moved for an order to consolidate 5 which waft granted.\\nA motion was now submitted to reverse that' order. 1\\n.Noble S\\u00ed Wardlaw, for the motion.\\n-contra.\", \"word_count\": \"230\", \"char_count\": \"1332\", \"text\": \"Mr- Justice Huger\\ndelivered the opinion of the court.\\nIn the case oi the Planters and Mechanics Bank vs. Moses Cohen, (2 Nott & McCord, 440,) it was decided that the court would not grant an order l'or consolidation, unless satisfied that no injury was to result to the plaintiff. In the case bel ore' the court, a consolidation must necessarily produce delay, as the amount of the two notes is beyond the summary jurisdiction of the court, and delay is always such an injury to the party complaining, as should prevent the court from ordering a consolidation.\\nThe motion must therefore be granted.\\nJustices Nott and Gantt, concutred.\"}"
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+"{\"id\": \"9503337\", \"name\": \"MANNING v. SCREVEN\", \"name_abbreviation\": \"Manning v. Screven\", \"decision_date\": \"1899-09-28\", \"docket_number\": \"\", \"first_page\": \"78\", \"last_page\": \"88\", \"citations\": \"56 S.C. 78\", \"volume\": \"56\", \"reporter\": \"South Carolina Reports\", \"court\": \"Supreme Court of South Carolina\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T19:16:33.832130+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"MANNING v. SCREVEN.\", \"head_matter\": \"MANNING v. SCREVEN.\\n1. Trust Deed \\u2014 Life Estate. \\u2014 A Resulting Trust does not arise in a trust deed when the grantee pays the purchase money, and takes to himself a life estate, in addition to a covenant on part of life tenant in remainder to furnish him a comfortable support during his life.\\n2. Powers \\u2014 Life Tenant. \\u2014 Under Trust Deed here, first life tenant had no estate to convey, but only power to appoint to uses.\\n3. Words and Phrases \\u2014 Trust Deed. \\u2014 \\\"Convey\\u201d in trust deed construed to mean \\u201cappoint.\\u201d\\n4. Trust Deed \\u2014 Mortgages.\\u2014The Power to appoint to uses conferred by trust deed may be executed in a mortgage.\\n5. Powers. \\u2014 A Trust Deed must be construed in the light of the purposes for which it was executed; and where there is still doubt, the acts of the donor and donee of the power become relevant to show the intent, and this deed so construed includes the power to mortgage.\\n6. Cases Distinguished. \\u2014 Bentham v. Smith, Cheves Eq., 33; Creighton v. Clifford, 6 S. C., 188; Salmas v. Pearsall, 24 S. C., 184, an,d Allen v. Ruddell, 51 S. C, 367, distinguished from this.\\nBefore Gary, J., Sumter, April, 1898.\\nReversed.\\nForeclosure by Richard I. M\\u00e1nning against the heirs at law of Frances Knox. From Circuit decree, plaintiff appeals.\\nMessrs Haynsworth & Haynszvorth, for appellant,\\ncite: Pozver of sale includes power to mortgage: 2 DeS., 460; 52 S. C., 369; 14 Gratt., 96. Mortgage was a delegation of power to appoint to uses: 27 S. C., 313. The declaration of uses in the deed of 1881 in favor of the heirs of Prances was not a limitation to them as purchasers: 51 S. C., 555; 4 Rich. Eq., 475; io Rich. \\u00c9q., 495; 42 S. C, 390; Bail. Eq., 517; 44 S. C, 503.\\nMessrs. Lee & Moise, contra,\\ncite: Since the act of i?pi, a mortgage in this State is not a conveyance: Rev. Stat.,' 1893; 26 S. C., 4QI. As to what instruments are mortgages: 1 McM. Eq., 13; 50 S. C, 169; 43 S. C., 39; 27 S. C., 70. Powers must he strictly construed and so executed and carried out: 14 S. C., 535; Cheves Eq., 33; 1 Rich. Eq., 324; 14 S. C., 535; 1 McC. Ch., 393; 6 S. C., 188; 3 S. C, 77; 28 S. C., 545; 43 S. C., 266; 51 S. C, 367; 42 S. C, 175; 24 S. C., 184. This is not a case for application of doctrine of resulting trusts \\u2014 the heirs of Frances took as purchasers under the trust deed: 3 Strob. Eq., 66; 3 Rich. Eq., 158;. 10 Rich. Eq., 358; 25 S. C, 292; 2 Rich. Eq., 53.\\nSeptember 28, 1899.\", \"word_count\": \"3833\", \"char_count\": \"20918\", \"text\": \"The opinion of the Court was delivered by\\nMr. Justice Jones.\\nThis is an action to foreclose a real estate mortgage claimed to> have been executed under a power conferred upon the mortgagor in a deed of trust. The Circuit Court held that the mortgage was not authorized under the power, and SO' dismissed the complaint. The appeal involves the construction of the trust deed. This deed was. executed in 1881 by Johnson J. Knox to William D. Blanding, his heirs and assigns, and conveyed the mortgaged lands, \\\"In trust, nevertheless, for the said William D. Blanding and his heirs for the use of the said Johnson J. Knox for and during his natural life, and after his death leaving the said Frances surviving him, for the use of the said Frances Knox, her heirs and assigns, forever, freed from all trusts and limitations. But should the said Johnson J. survive the said Frances, then upon thedeath of the said Johnson J. Knox, to and for the use of such person or persons upon such terms and in such parcels as the said Frances Knox shall by her deed, duly executed, convey the same, or by her last will.and testament, made according to law and duly probated, appoint, devise and declare. But should the said Frances fail to make such a deed or such her last will and testament, then to and for the use of the heirs at law of the said Frances Knox, they taking'as they would take under the statute of' distributions of the said State, if the said Frances had then died intestate, seized of said tract of land. Provided, however, if the said Frances shall execute such a deed or -last will and testament, and in the same declare any uses or trusts, then the said William D. Blanding shall be relieved from all duty and responsibility as trustee 'hereunder, or under such deed or last will and testament as she may execute.\\\" The consideration of this deed was the release and satisfaction by Frances Knox of a judgment for $1,169.61 in her favor against Johnson J. Knox, which is recited in connection with the statement in the trust deed that \\\"the said Frances is minded with the said debt .to- have some certain provision for a home for herself.\\\" It is 'also recited in the trust deed that Johnson J. Knox had oh the same day executed and delivered to Frances Knox a covenant bindirig himself to maintain and support and provide a comfortable home for her dtiring his life; if she shall so long live, upon the tract of land free of all cost and charges. In 1891, in order tot secure a loan of money to' them by Richard I. Manning, the plaintiff, Johnson J. Knox, and Frances Knox executed the mortgage sought to' be foreclosed herein, which, in addition to the usual terms of conveyance by way of mortgage, contained the following: \\\"Now, for the purpose of farther securing the payment of the said sum of two hundred dollars and the interest (the indebtedness above referred to) and in consideration of the premises, and also in consideration of the sum of five dollars to me, the said Frances Knox, by the said Richard I. Manning (agent) paid, I, the said'Frances Knox, under and by virtue and in the exercise of the power to declare uses above referred to, do declare, that should the said Johnson J. Knox survive me, and should a sale of the said land be made under 'judgment for 'foreclosure of the above mortgage and sale of said land for payment of said indebtedness, then that the said land shall be held, from and after the death of the said Johnson J. Knox (which is the time to which the power hereby exercised refers) to and for the use of the purchaser or purchasers at such sale, and his, her or their heirs and assigns, forever. But if the said Johnson J. Knox survive me, and if at his death, he surviving me, the said land should not have 'been sold under judgment as above referred to, then that the said land be held to' and for the use of the said Richard I. Manning (agent) and his heirs and assigns, until the rents and profits thereof shall pay and discharge the said indebtedness and interest, and all expenses of administering the same, and from and after that time for the use of such person or persons, and in such estate or estates, as I may hereafter, by deed, or by last will and testament, designate and appoint, with full power, however, to the said Richard I. Manning (agent), his heirs, executors, administrators or assigns, to sell the said land and convey the same to the purchaser, in which case the said land shall be held to> the use of such purchaser, and his or her heirs and assigns, forever, in fee simple absolute, discharged of all trusts and uses, and \\u2022any surplus of the proceeds of sale, after discharging said indebtedness and interest and expenses, shall be held to1 and for the use of and be paid to 'such person or persons as I may by deed or will designate and appoint; it being the intention of all the parties to this instrument tO' subject all their interests and estates in said land and all the interests and estates which may be created to or in the same by the said Frances Knox by appointments to1 uses to the payment of the said indebtedness and interest. But if the said indebtedness and interest should be paid otherwise than by sale of said land, then the above appointments and declarations of uses shall, ipso facto, be revoked, and the power to declare other uses is in such case reserved to the said Frances Knox.\\\" Johnson J. Knox and Frances Knox are both dead. Johnson J. survived Frances. Frances died intestate, and never made any appointment or declaration of uses other than contained in said mortgage.\\nAfter reciting the facts in accordance with the foregoing statement, the Circuit Court disposed of the case as follows: \\\"The contention of the defendant is that there being no power conferred upon either J. J. Knox or Frances Knox to mortgage this land, that the mortgage is void, and that, therefore, the Court cannot decree a foreclosure as prayed for, and sale of the mortgaged premises. It is not denied that J. J. and Frances Knox could mortgage or assign their life estate, but it is insisted that the mortgage died with them, and the fee which has become vested in these defendants cannot now be sold under foreclosure proceedings to pay the debt of the Knoxes secured by the lien of the mortgage. ' The power to mortgage, if it existed, is derived from the trust deed. That deed is the foundation of the authority to execute said mortgage, and if it appears that the trust deed conferred no such power, then I take it that the mortgage must fall. The whole issue in the case may be summed up in the question: Did the trust deed to- Blanding confer upon the Knoxes the power to. execute this mortgage, and if it did not, is not such mortgage void? It is abundantly settled by the authorities in this State that powers are to be strictly construed and must be 'executed and carried out as directed by the instrument creating- the power. Bilderback v. Boyce, 14 S. C., 535; Creighton v. Pringle, 3 S. C., 77; Blount v. Walker, 28 S. C., 545; Salinas v. Pearsall, 24 S. C., 184.\\\" After quoting from the cases of Ballou v. Young, 42 S. C., 175, and Allen v. Ruddell, 51 S. C., 371, the Court adjudged the mortgage void for want of power in the mortgagor.\\nThe exceptions, nine in-number, present practically two questions: 1. Whether, under the doctrine of resulting trusts, Frances Knox, having paid the consideration for the deed of 1881 to. Blanding, had an equitable estate in fee, in remainder, after the life estate of Johnson J. Knox, which became bound by the mortgage. 2. Whether the mortgage or deed of 1891 can fairly be construed as within the power conferred in the trust deed of 1881.\\nFirst. We do not think the doctrine of resulting trusts has any application in this case. A resulting trust arises in favor of one who pays the purchase money of an estate and takes title in the name of another, because of the presumption that he who pays for a thing intends a beneficial interest therein for himself, but this presumption cannot arise when a contrary intent appears, since it is based on the absence of evidence of such contrary intent. Perry on Trusts, sec. 124; Adams Equity, 7 ed., pages 33, 34. In this case the trust deed expressly defines the estate intended for Frances Knox, and it further appears that the consideration paid by her secured, also, an independent covenant by the life tenant to provide for her a comfortable home and support on said land during her life or until the death of the life tenant.\\nSecond. The language conferring the power of disposition is very broad and comprehensive: \\\"but should the said Johnson J. survive the said Frances, then upon the death of said Johnson J. Knox, to and for the use of such person or persons upon such terms and in such parcels as the said Frances Knox shall by her deed, duly executed, convey the same, or by her last will and testament, made according to law and duly probated, appoint, devise and declare.\\\" Is the deed or mortgage in question within the power conferred'? We are constrained to think that it is. It will be noticed, in the first place, that the deed in question is more than a mere mortgage. In addition to the terms usual in a mortgage are other declarations, as follows: \\\"But if the said Johnson J. Knox survive me, and if at his death, he surviving me, the said land should not have been sold under judgment as above referred to, then that the said land he held to and for the use of the said Richard I. Manning and his heirs.and assigns, until the rents and pro\\u00f1ts thereof shall pay and discharge the said indebtedness and interest, and all expenses of administering the same, and from and after that time for the use, &c.\\\" A power is defined by Chancellor Kent as \\\"a mere right to limit a use.\\\" Here we have an express appointment h> the use of the plaintiff until the happening of a particular event, the payment of the mortgage debt by the rents and profits, and after that time to such use as the donee may appoint; and the appointment is, by one of the modes prescribed, a deed duly executed. This appointment is a species of conveyance and comes within the meaning of the term \\\"convey.\\\" In construing this term it must be remembered that the legal estate was in the trustee, Blanding, and, viewing the matter as the mere execution of a power, Frances Knox had no' equitable estate to convey. So that, strictly speaking, she could not have conveyed any estate even by a regular and formal deed of conveyance, as no deed she could make would have acted directly on the estate or possession. Her right was the power of appointment to uses which, when exercised in the mode prescribed by deed or will, operated as a limitation of a use in favor of the person named by her. 2. Wash. Real Prop., 590. When, therefore, the donor used the word \\\"convey\\\" he meant \\\"appoint,\\\" which would have all the legal force and effect of the word \\\"convey\\\" in the connection used. The power conferred was a general power of appointment by deed or will, the usual modes by which uses are declared. In the case of Peace v. Speirin, 2 DeS. Eq., 461, a deed conveyed certain premises in trust for the use of Thomas Speirin and Elizabeth LaLiffe during their joint lives, and on the death of either of them, one moiety to be subject to his or her last will and the other moiety to the last will of the survivor, and in default of such last will or other legal appointment, to their respective right heirs. The Court held that a valid legal appointment could be made by mortgage.\\nBut, further, we must construe the instrument creating the power in the light of the purpose for which it was created, in order to reach the intent of the donor as to the extent of the power and the mode of execution. Frances Knox was given unlimited power to convey or appoint the use in the equitable estate in remainder by deed or will, to any person, for anything or nothing, at discretion and without accountability, and in the absence of the exercise of such power, the remainder vested in her heirs at law, as if she died intestate seized of the property. She was the purchaser of the power which was created for her benefit alone. The power was both general and beneficial, and had no trust whatever attached to its exercise. Such unlimited beneficial power of disposal, and the vesting in her heirs at law in case of the non-exercise of the power, very strongly suggests such a construction as would create in Frances Knox a vested, rather than contingent estate in remainder, which would, of course, sustain the power to mortgage as an incident of ownership. This point, however, was not discussed and need not be decided now. Perhaps the same rule would apply in this matter as in the case where an estate is expressly limited to one for life, with power of appointment by deed or will, in which case the life estate is not enlarged into an estate in fee \\u2014 Sires v. Sires, 43 S. C., 272 \\u2014 which construction is regarded as well settled, although it is confessed to rest on narrow ground. We note the matter, however, to emphasize the statement that when it so clearly appears that the purpose of the donor in creating the power was solely for the benefit of the donee, whose interest might reasonably require the giving of a mortgage as the result shows, it cannot be fairly said that such general power of appointment, having well night the attributes of property, shows any intention to exclude the power h> mortgage. It is true that, under the act of 1791, a mortgage is not a conveyance of an estate, but is a mere lien for the debt. But while that is the legal effect of a mortgage, it is, nevertheless, in form a conveyance on condition. The complaint speaks of the mortgage as \\\"a conveyance by way of mortgage.\\\" Such an expression is common and, notwithstanding the effect of the act of 1791, we constantly meet with the expression, \\\"equity of redemption,\\\" as if the mortgagor had con veyed something to be redeemed. These terms, of course, are not accurate but thejr are in common use. It would seem entirely too rigid to hold, that the donor intended to exclude the power to- mortgage, merely because in technical meaning the legal effect of a mortgage is not a conveyance in this State. If there be a doubt whether the power to mortgage was intended to be included, the subsequent acts of both the donor and donee of the power, became relevant to show the real intention. LeRoy v. Beard, 8 How., 468. In this case we have the very unusual circumstance of both donor and donee, in good faith uniting in the mortgage, thereby showing their understanding that the general power of appointment included power to mortgage, and thereby appoint.\\nThis view is not in conflict with any case in this State, so-far as we have been able to ascertain. The case of Bentham v. Smith, Cheves Eq., 33, decides that a power to- appoint by will is not executed by a mortgage to- creditors with foreclosure and sale. In that case, the power was limited to a specific mode of execution; in this case, the power and mode of execution are general. Several cases, as Creighton v. Clifford, 6 S. C., 188; Salinas v. Pearsell, 24 S. C., 184; Allen v. Ruddell, 51 S. C., 367, decide that a power to- sell for reinvestment does not confer a power to mortgage. These cases are properly decided on the ground stated by Chief Justice Mclver, in the last case above, that a power of sale for reinvestment negatives a power to mortgage. A sale for reinvestment and a mortgage to secure a debt are wholly inconsistent. These cases illustrate what has been heretofore decided in this State. In 18 Enc. Law, 940, numerous cases are cited in the note to sustain the doctrine of the text, that \\\"power to sell does not confer a power to mortgage.\\\" It is sufficient to- say that the power under consideration is not a mere power to sell. Such of the cases cited, that we have been able to examine, involved either the power of an agent to sell, or a power to sell was limited, or coupled with a trust which could be defeated by a mortgage, and do not apply in this case, where the power was created solely for the donee, is general, and without semblance of trust.\\nOn the other hand, we will refer to two- cases illustrative of our view. In the case of Hicks v. Ward (N. C.), 12 S. E. Rep., 318, the Court held that a devise to testator's son, in trust for such person or persons and use or uses as he shall by deed or will appoint, and, until and in default of such appointment in trust, for the sole and separate use of the devisee's wife for life, with remainder over to her children, confers upon the devisee a general power of appointment which he could execute by -a mortgage. In the case of Kent v. Morrison (Mass.), 10 L. R. A., 756, the Court held that where an estate is devised to one for life, with power to sell and convey the same by deed (part or all of it), the proceeds to be used for the devisee's comfort and otherwise as he may think proper, the power may be exercised by the execution of a mortgage. We quote from the language of the Court: \\\"When the intention in giving the power is that real estate may be converted Out and out into money, such power does not authorize a mortgage. Where a -life estate was given for maintenance, with a power ho sell and convey any and all of my real estate, if necessary to> secure the maintenance,' it was held that it did not authorize a mortgagee. Hoyt v. James, 129 Mass., 286. The power-in the present case is to sell and convey the same by deed (part or all of it), and .the proceeds are h> be used for her comfort and otherwise, as she may think proper. This is a power to sell for any purpose, and to use the proceeds in any manner the devisee may think proper. Under it the devisee may sell all or any parcel1 of the real property, and make the proceeds her own,' whether necessary for her support or not, such a power is as ample as that of an owner, only it must be executed by deed. It is an absolute and unrestricted power to sell for the benefit and in the discretion of the devisee of the power, and w\\u00e9 think includes a power to mortgage. See Zane v. Kennedy, 73 Pa., 182; Locben- thal v. Raleigh, 36 N. J. Eq., 169.\\\" It does not weaken the force of the above cases to note that in North Carolina and Massachusetts, a mortgage retains some of the elements of a sale or conveyance on condition. The cases rest upon broader ground.\\nThe judgment of the Circuit Court is reversed, and the case remanded for further proceedings.\"}"
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+"{\"id\": \"954090\", \"name\": \"Yolanda BURROUGHS, individually, and as Personal Representative of the Estate of James Burroughs, deceased, Respondent, v. John W. WORSHAM, M.D.; Terrell T. Leeke, M.D.; and Fairview Family Practice, Defendants, of whom John W. Worsham, M.D. and Fairview Family Practice are Appellants\", \"name_abbreviation\": \"Burroughs v. Worsham\", \"decision_date\": \"2002-12-09\", \"docket_number\": \"No. 3576\", \"first_page\": \"382\", \"last_page\": \"407\", \"citations\": \"352 S.C. 382\", \"volume\": \"352\", \"reporter\": \"South Carolina Reports\", \"court\": \"South Carolina Court of Appeals\", \"jurisdiction\": \"South Carolina\", \"last_updated\": \"2021-08-10T22:28:57.871183+00:00\", \"provenance\": \"CAP\", \"judges\": \"HEARN, C.J., and CURETON, J., concur.\", \"parties\": \"Yolanda BURROUGHS, individually, and as Personal Representative of the Estate of James Burroughs, deceased, Respondent, v. John W. WORSHAM, M.D.; Terrell T. Leeke, M.D.; and Fairview Family Practice, Defendants, of whom John W. Worsham, M.D. and Fairview Family Practice are Appellants.\", \"head_matter\": \"574 S.E.2d 215\\nYolanda BURROUGHS, individually, and as Personal Representative of the Estate of James Burroughs, deceased, Respondent, v. John W. WORSHAM, M.D.; Terrell T. Leeke, M.D.; and Fairview Family Practice, Defendants, of whom John W. Worsham, M.D. and Fairview Family Practice are Appellants.\\nNo. 3576.\\nCourt of Appeals of South Carolina.\\nHeard Nov. 5, 2002.\\nDecided Dec. 9, 2002.\\nJohn Hamilton Smith, of Charleston; Ruskin C. Foster and John C. Bradley, Jr., both of Columbia, for Appellants.\\nSusan C. Rosen and Richard S. Rosen, both of Charleston; Jeffrey J. Kroll and Isobel S. Thomas, both of Chicago, for Respondent.\", \"word_count\": \"7125\", \"char_count\": \"43587\", \"text\": \"ANDERSON, J.\\nYolanda Burroughs, individually and as personal representative for James Burroughs' (Burroughs) estate, brought suit against Dr. John W. Worsham and Fairview Family Practice (collectively referred to as \\\"Appellants\\\") for medical malpractice. She alleged causes of action for wrongful death, survival, and loss of consortium. The jury awarded $3,500,000 each for the survival and -wrongful death actions. The jury determined the decedent and Appellants were each fifty percent at fault. The jury found for Appellants on the loss of consortium claim. We affirm.\\nFACTS/PROCEDURAL BACKGROUND\\nBurroughs received a bachelor's degree, master's degree, and doctorate in theology. While serving as a missionary in Mexico, Burroughs met Yolanda, whom he married in 1984. They later had two children. After marrying, the couple moved back to the United States, and eventually settled in Greenville to be close to Burroughs' ill father.\\nBurroughs began working for the Hyatt Corporation as a night audit supervisor for $6.50 an hour. He was subsequently promoted to income auditor, to paymaster, to general cashier, to systems administrator, to systems specialist, and then to systems analyst. Burroughs was promoted in 1996 to Management Information Systems Manager. Finally, in May 1997, he was transferred to the corporate headquarters in Chicago, where he became an analyst on special programs and applications making $38,000.00 per year.\\nWhile residing in Greenville, Burroughs was a patient at Fairview Family Practice, which was owned by Dr. Worsham and Dr. Terrell T. Leeke. In 1990, Burroughs went to Dr. Leeke, who referred him to a gastroenterologist. Burroughs was diagnosed with a bleeding ulcer. Burroughs' first visit to Dr. Worsham was in 1992 for treatment of poison ivy. In 1993, Burroughs went back to the gastroenterologist and was diagnosed as having a propensity for ulcers and suffering from gastritis and duodenitis.\\nBurroughs was next seen by Dr. Worsham on April 12, 1995, to determine the cause of his lower abdominal pain. A hemoglobin test was performed and it indicated that Burroughs had a low hemoglobin count. Dr. Worsham prescribed ulcer medication, but provided no further treatment nor did he follow up on the hemoglobin count.\\nIn August 1995, Burroughs returned to Fairview with abdominal pain. He was examined by Dr. Worsham and was diagnosed with acute bacterial prostatitis, for which an antibiotic was prescribed. Burroughs failed to follow-up for reexamination.\\nDr. Worsham gave Burroughs a physical examination in February 1996. Burroughs continued having abdominal pain. Dr. Worsham informed Burroughs that he did not have any significant medical problems, but was anemic. Burroughs was prescribed iron and Citrucel. Dr. Worsham instructed Burroughs to return for a complete blood count in four weeks. According to Dr. Worsham, Burroughs did not go back for the four-week follow-up appointment.\\nFive months later, Burroughs returned with severe abdominal pain. Dr. Worsham did another blood test and again diagnosed Burroughs as having acute bacterial prostatitis. In his medical note, Dr. Worsham wrote: \\\"[Burroughs] has a deep seeded [sic] fear of either prostate or stomach cancer. .\\\" Dr. Worsham additionally diagnosed Burroughs with \\\"cancer phobia.\\\" Dr. Worsham directed Burroughs to call the next day for his lab results and to make an appointment to see Dr. Worsham in two weeks. Neither Dr. Worsham nor Burroughs followed up on the lab results.\\nBurroughs subsequently saw Dr. Worsham in October 1996. He complained of right side abdominal pain, dizziness, and weakness. Dr. Worsham believed Burroughs had a kidney stone and tests were performed which came back normal. Burroughs returned the following day with continued pain. Dr. Worsham felt a bulge in Burroughs' lower right abdomen. He concluded Burroughs had an incisional hernia over an old appendectomy scar.\\nBurroughs was referred to Dr. Joseph C. McAlhany, a general surgeon, for evaluation of his condition. Dr. McAlhany noted the pain was \\\"just some strain secondary to the previous appendectomy scar.\\\" He prescribed anti-inflammatory agents and heat. Further, he instructed Burroughs to return for a recheck in two to three weeks. Burroughs failed to show up for the follow-up office appointment with Dr. McAlhany.\\nIn April 1997, Burroughs returned to Fairview with abdominal pain. Because Dr. Worsham was no longer with the practice, Dr. Leeke treated Burroughs. Dr. Leeke determined Burroughs was suffering from abdominal pain and chronic anemia. He prescribed Burroughs' usual ulcer medications.\\nApproximately two weeks later, Burroughs moved to Chicago for his promotion with Hyatt Hotels Corporation. On November 3, 1997, Burroughs sought treatment in the emergency room of Edward Hospital for severe lower abdominal pain, dizziness, and diarrhea. He was admitted to the hospital. A CT scan showed a mass in the lower abdomen. Burroughs was diagnosed as having colon cancer.\\nSeveral surgeries were performed in an attempt to remove much of the cancer. However, by the time it was diagnosed, the cancer had spread throughout the abdomen. Burroughs' cancer was incurable. He and his family returned to Ware Shoals, where Burroughs received treatment and hospice care. Burroughs died in May 1999.\\nYolanda originally brought this action against Fairview, Dr. Worsham, and Dr. Leeke. Dr. Leeke was dismissed by a directed verdict, and the initial trial ended in a mistrial. The case was retried against Appellants. The jury determined Appellants and Burroughs were each fifty percent liable. The jury awarded $3,500,000 on both the survival and wrongful death actions. The jury found for Appellants on the loss of consortium claim. Appellants' motions for judgment notwithstanding the verdict and a new trial absolute were denied.\\nISSUES\\nI. Did the trial judge err in admitting Dr. Bart Green's testimony over Worsham's objection because South Carolina does not recognize the \\\"loss of chance of survival\\\" doctrine?\\nII. Did the trial court err in admitting testimony from Burroughs' employer regarding possible future promotions and salary ranges, and in allowing testimony by an economist, who relied on these figures for calculation of future damages?\\nIII. Did the trial court err in refusing to allow Worsham, as referring doctor, to testify as to what he expected Dr. McAlhany to do in evaluating and diagnosing Burroughs' condition pursuant to the referral?\\nIV. Did the trial court err in refusing to permit Worsham to testify that his review of Dr. McAlhany's chart showed no entry indicating Burroughs returned for a follow-up visit?\\nV. Did the trial court err in failing to properly charge the jury regarding the standard of care to which Worsham should be held?\\nVI. Were the jury verdicts in this case inconsistent, where the jury found damages for wrongful death but no damages for loss of consortium?\\nSTANDARD OF REVIEW\\nI. Admission of Expert Testimony\\nThe admission or exclusion of expert testimony is a matter within the sound discretion of the trial court. Payton v. Kearse, 329 S.C. 51, 495 S.E.2d 205 (1998); Means v. Gates, 348 S.C. 161, 558 S.E.2d 921 (Ct.App.2001). A trial court's ruling to exclude or admit expert testimony will not be disturbed on appeal absent a clear abuse of discretion. Mizell v. Glover, 351 S.C. 392, 570 S.E.2d 176 (2002); Means, 348 S.C. at 166, 558 S.E.2d at 923; see also Lee v. Suess, 318 S.C. 283, 457 S.E.2d 344 (1995) (admission of expert testimony is within sound discretion of trial judge and will not be overruled absent finding of abuse of discretion and prejudice to complaining party). An abuse of discretion occurs when there is an error of law or a factual conclusion that is without evidentiary support. Bayle v. South Carolina Dep't of Transp., 344 S.C. 115, 542 S.E.2d 736 (Ct.App.2001).\\nII. Exclusion of Testimony\\nIt is well settled that the admission and rejection of testimony are matters largely within the trial court's sound discretion, the exercise of which will not be disturbed on appeal absent an abuse of that discretion. Pike v. South Carolina Dep't of Transp., 343 S.C. 224, 540 S.E.2d 87 (2000); Commerce Ctr. of Greenville, Inc. v. W. Powers McElveen & Assocs., Inc., 347 S.C. 545, 556 S.E.2d 718 (Ct.App.2001); see also Gamble v. International Paper Realty Corp., 323 S.C. 367, 474 S.E.2d 438 (1996) (admission or exclusion of evidence is matter within sound discretion of trial court and, absent clear abuse, will not be disturbed on appeal). To warrant reversal, the appellant \\\"must show both the error of the. ruling and resulting prejudice.\\\" Recco Tape and Label Co. v. Barfield, 312 S.C. 214, 216, 439 S.E.2d 838, 840 (1994); see also Carlyle v. Tuomey Hosp., 305 S.C. 187, 407 S.E.2d 630 (1991) (proof that an error caused the appellant prejudice is a prerequisite to reversal based on error where the trial court's discretion is involved). In order for this Court to reverse a case based on the erroneous admission or exclusion of evidence, prejudice must be shown. Hanahan v. Simpson, 326 S.C. 140, 485 S.E.2d 903 (1997); Commerce Ctr., 347 S.C. at 559, 556 S.E.2d at 726; see also Potomac Leasing Co. v. Bone, 294 S.C. 494, 497, 366 S.E.2d 26, 28 (Ct.App.1988) (\\\"Before the Court of Appeals will reverse a judgment for an alleged error in the exclusion of evidence, the appellant must show prejudice.\\\").\\nIII. Jury Charge\\nIt is not error for the trial judge to refuse a specific request to charge when the substance of the request is included in the general instructions. Varnadore v. Nationwide Mut. Ins. Co., 289 S.C. 155, 345 S.E.2d 711 (1986); Brown v. Stewart, 348 S.C. 33, 557 S.E.2d 676 (Ct.App.2001). In reviewing a jury charge for alleged error, this Court must consider the charge as a whole, in light of the evidence and issues presented at trial. Keaton ex rel. Foster v. Greenville Hosp. Sys., 334 S.C. 488, 514 S.E.2d 570 (1999).\\nA trial court must charge the current and correct law. Welch v. Epstein, 342 S.C. 279, 536 S.E.2d 408 (Ct.App.2000); see also Brown v. Smalls, 325 S.C. 547, 481 S.E.2d 444 (Ct.App.1997) (trial judge is required to charge current and correct law applicable to issues presented). A jury charge is correct if, when the charge is read as a whole, it contains the correct definition and adequately covers the law. Keaton, 334 S.C. at 495-96, 514 S.E.2d at 574. The substance of the law is what must be instructed to the jury, not any particular verbiage. Id. at 496, 514 S.E.2d at 574. A jury charge which is substantially correct and covers the law does not require reversal. Id. To entitle an appellant to reversal, the trial court's instructions must be not only erroneous, but also prejudicial. Arkwright Mills v. Clearwater Mfg. Co., 217 S.C. 530, 61 S.E.2d 165 (1950).\\nLAW/ANALYSIS\\nI. ADMISSION OF EXPERT TESTIMONY\\nA. \\\"Loss of Chance of Survival\\\"\\nWorsham contends the admission of Dr. Bart Green's testimony was improper because it did not meet the \\\"most probable\\\" standard for recovery and the testimony merely presented a \\\"loss of chance of survival,\\\" which is not recognized in South Carolina. We find the trial judge properly admitted the testimony.\\nIn his deposition, Dr. Green testified:\\nQ: Doctor, do you have an opinion, based upon a reasonable degree of certainty, as to whether or not Mr. Burroughs!'] chances of cure and survivability would have been greater had they been detected, colon cancer, in February of '96?\\n[A]: Yes.\\nQ: And what is that opinion?\\nA: Colon cancer in general, if diagnosed earlier, at an earlier stage, has a much higher survivability than \\u2014 than late stage as it was when I was involved in his care.\\nQ: Do you have an opinion, Doctor, based upon a reasonable degree of certainty, as to whether or not it is most probably trae that Jim Burroughs, his chance for cure and survival, would have been greater if the colon cancer was detected in July of '96?\\nA: Yes.\\nQ: And what is your opinion?\\nA: My opinion is if it would have been detected at that time, it would have been in an earlier stage and been more curable.\\nQ: And does that opinion hold true for October of '96 and April of '97 as well?\\nA: Yes.\\nThe specific testimony of Dr. Green to which Worsham objects is merely a portion of his overall testimony regarding whether Worsham should have diagnosed and treated the colon cancer and, if found earlier, whether Burroughs would have survived. The testimony is certainly relevant to the nature and character of the injuries, which were the natural and proximate consequences of Worsham's failure to diagnose in this case.\\nWhile the portion of testimony taken in isolation may not have met the \\\"most probably\\\" standard of proof required to demonstrate probable cause, we find it was relevant and properly admitted. See Martin v. Mobley, 253 S.C. 103, 109, 169 S.E.2d 278, 281 (1969) (\\\"The fact that the doctor had not had opportunity to consider whether the plaintiffs permanent disability was more or less than that which generally followed such a condition and operation affected, we think, only the weight and not the admissibility of the proffered evidence.\\\"). Additionally, there was sufficient evidence to support the jury's verdict that Burroughs' death was \\\"most probably\\\" the result of the failure to diagnose his cancer earlier and not merely a \\\"loss of chance of survival.\\\"\\nOur Supreme Court specifically rejected the \\\"loss of chance\\\" doctrine in Jones v. Owings, 318 S.C. 72, 456 S.E.2d 371 (1995). The Jones Court concluded:\\nAfter a thorough review of the \\\"loss of chance\\\" doctrine, we decline to adopt the doctrine and maintain our traditional approach. We are persuaded that \\\"the loss of chance doctrine is fundamentally at odds with the requisite degree of medical certitude necessary to establish a causal link between the injury of a patient and the tortious conduct of a physician.\\\" Legal responsibility in this approach is in reality assigned based on the mere possibility that a tortfeasor's negligence was a cause of the ultimate harm. This formula is contrary to the most basic standards of proof which undergird the tort system.\\nId. at 77, 456 S.E.2d at 374 (citations omitted) (emphasis in original).\\nThe \\\"loss of chance\\\" doctrine, in the context of medical malpractice, \\\"permits a recovery when the delay in proper diagnosis or treatment of a medical condition results in the patient being deprived of a less [than] even chance of surviving or recovering.\\\" Id. at 75, 456 S.E.2d at 373. The Court noted that the decedent's chance of survival was never above fifty percent, even if his lung cancer had been diagnosed earlier. Id. at 74, 456 S.E.2d at 372. The Court maintained South Carolina's traditional approach that, in order to recover based on medical malpractice, the plaintiff must show the negligence of the physician \\\"most probably\\\" caused the injury or death. Id. (citing Sherer v. James, 290 S.C. 404, 351 S.E.2d 148 (1986)).\\nIn Haselden v. Davis, 341 S.C. 486, 534 S.E.2d 295 (Ct.App.2000), cert. granted (January 11, 2001), this Court had the opportunity to determine whether evidence which demonstrates the negligence of a physician in failing to diagnose the decedent, who would have had a greater than fifty percent chance of survival except for the negligence of the doctor, satisfies the \\\"most probable\\\" standard. We concluded that, when an individual would have had a greater than fifty percent chance of survival if the physician had properly advised the decedent at an earlier time, evidence of the failure to do so satisfies the \\\"most probably\\\" requirement for causation. Id. at 495, 534 S.E.2d at 300.\\nIn the instant case, Dr. Randolph Baily testified regarding Burroughs' chance of survival had the cancer been diagnosed earlier. The following colloquy is demonstrative of his opinions:\\nQ. Doctor, in February of 1996, when he had that physical exam, do you have an opinion, based upon a reasonable degree of certainty, as to whether or not Jim Burroughs would have survived if he was diagnosed and properly treated on that date?\\nA. Yes, sir, I believe he would have.\\nQ. Doctor, do you have an opinion if that was diagnosed, the colon cancer, in February of 1996, if Jim Burroughs would have had a normal life expectancy?\\nA. I believe he would have. Had the tumor been removed, then he could have had a normal life expectancy, yes.\\nDr. Baily was asked the question regarding whether Burroughs would have survived and had a normal life expectancy if the cancer had been diagnosed in July of 1996, and October of 1996. In both cases, he responded that Burroughs would have likely survived and would have enjoyed a normal life expectancy.\\nDuring redirect examination, the following exchange took place:\\nQ. Is it your opinion that in February, July and October, Mr. Burroughs' condition was more likely than not curable?\\nA. Absolutely.\\nQ. And Doctor, do you have an opinion during those relevant time periods if it was diagnosed and treated would he have survived and lived a normal life?\\nA. I believe it's more likely than not that he would have, yes, sir.\\nThe above testimony demonstrates that Burroughs would have had a greater than fifty percent chance of survival if the colon cancer had been diagnosed in February 1996, July 1996, or October 1996. Therefore, the evidence supports the inference that the failure by Dr. Worsham to diagnose Burroughs' condition \\\"most probably\\\" resulted in his death and not merely in a \\\"loss of chance of survival.\\\"\\nWe note the trial judge properly charged the jury regarding the appropriate standard of proof that must be met by Burroughs in order for the jury to award damages. The trial judge instructed:\\nNow, ladies and gentlemen, when the opinions of a medical expert are relied upon to establish a causal connection between negligence and an injury, the expert must state with reasonable certainty that in his professional opinion the injuries most probably resulted, or the death most probably resulted from the alleged negligence of the defendant. Or that expert must use words that would mean to you the same thing, that the death most probably resulted as the alleged negligence of the defendant.\\nThe trial judge properly admitted the testimony of Dr. Green. Concomitantly, there was sufficient evidence to support the jury's determination that Worsham's diagnosis was \\\"most probably\\\" the proximate cause of Burroughs' death.\\nB. Future Damages/Future Salary\\nWorsham argues the trial court erred in admitting testimony of Burroughs' possible future salary, which included several promotions and salary increases, as being too speculative. We find the testimony was properly admitted for consideration by the jury.\\n\\\"Under current South Carolina law, the standard of admissibility for evidence of future damages is 'any evidence which tends to establish the nature, character, and extent of injuries which are the natural and proximate consequences of the defendant's acts . if otherwise competent.' \\\" Pearson v. Bridges, 344 S.C. 366, 372, 544 S.E.2d 617, 620 (2001) (quoting Martin v. Mobley, 253 S.C. 103, 109, 169 S.E.2d 278, 281-82 (1969)). The \\\"most probable\\\" standard required to prove causation is not the standard to be applied in determining the admissibility of evidence of future damages. Id. at 371, 544 S.E.2d at 619. Furthermore, \\\"whether future medical expenses are 'reasonably certain' to occur is also the incorrect standard to use in determining admissibility.\\\" Id. \\\"Whether future damages are 'reasonably certain' to occur is the standard of proof for future damages, not the standard of admissibility.\\\" Id. at 371-72, 544 S.E.2d at 619 (italics in original).\\nIn Pearson, the medical expert testified that four possible scenarios could result from the alleged malpractice. For each scenario, he presented a declining statistical chance of occurrence and the possible damages which could result. The Supreme Court explained:\\nThe evidence of the medical expenses of scenarios two, three, and four was admissible. These scenarios tended to establish the extent of Pearson's injuries. The fact that Pearson's experts testified that the possibilities of scenarios two, three, and four occurring were 30 percent or less went to the weight of the evidence not its admissibility. Whether Pearson proved the expenses were \\\"reasonably certain\\\" to occur so she would be entitled to an award of future damages was a question for the jury to determine.\\nPearson, 344 S.C. at 373, 544 S.E.2d at 620 (internal citations omitted).\\nIn the instant case, the testimony provided a possible scenario for future advancement and income for Burroughs. James Barnish, the Assistant Vice President of hotel accounting for the Hyatt, chronicled the possible path of advancement within Hyatt. He stated:\\nJames had a good career up to the time that he moved to the to the corporate office, and what I personally had thought would be his next logical step would be to work for me in one of my other areas of responsibility for the IT department in the corporate office, and James had \\u2014 I knew James had a real interest in the IT side, or the computer side of the business, and he preferred to go that route than the hotel accounting route, and it's difficult to hang onto people in that area, and I would have seen him progressing within the organization as long as he wanted to stay with the company, that he would have made it to a manger [sic], director and eventually an officer type level position, because he had the years of service, and Hyatt is very, very big on promoting from within.\\nBarnish was asked: \\\"Were the promotions outlined with what you believed most probably would have happened for James Burroughs had he not left?\\\" Barnish answered, 'Tes.\\\" Barnish declared that the positions and salaries presented to Burroughs' economist for use in determining lost future wages were correct. Dr. Charles Alford, an economist, opined that, given the promotion track provided by Barnish, the present value of Burroughs' future wages was $1,558,749.\\nAs in Pearson, whether the future damages in the case sub judice were established with \\\"reasonable certainty\\\" was a decision for the jury and did not impact the admissibility of the evidence. We iterate for the edification of the Bench and Bar that the standard for the admission of evidence is different from the standard of proof to be used by the jury in determining whether to assess damages. The question in this case, as in Pearson, is whether the evidence was properly admitted, not whether the evidence was sufficient to support a verdict including future damages. We conclude the evidence was properly admitted, and whether the damages were \\\"reasonably certain\\\" to occur was a decision for the jury.\\nII. FAILURE TO ALLOW WORSHAM'S TESTIMONY\\nA. Expectations Regarding Referral\\nDr. Worsham claims the trial judge erred by refusing to allow him to testify as to what he expected Dr. McAlhany to do in evaluating and diagnosing Burroughs pursuant to Worsham's referral. We find no prejudicial error by the trial judge.\\nWorsham sought to introduce testimony regarding his expectations of what Dr. McAlhany would do to diagnose Burroughs' condition after Worsham's referral. The testimony excluded was never proffered to the court. As there was no proffer, Worsham cannot demonstrate how he was prejudiced by its exclusion. See Baber v. Greenville County, 327 S.C. 31, 41, 488 S.E.2d 314, 319 (1997) (\\\"Absent a proffer, it is impossible for this Court to determine the effect of the excluded testimony.\\\").\\nMoreover, on direct examination during the plaintiffs casein-chief, Dr. Worsham testified:\\nA: I did not remember James Burroughs until I saw his deposition and I recognized his face, but as far as remembering him specifically, had we run into each other somewhere, no, I can't say that I truly remembered him.\\nQ: And just so we're clear, you were his main treating doctor, correct?\\nA: That's correct.\\nQ: You did not remember him?\\nA. I did not remember him specifically, no.\\nThis testimony demonstrates with remarkable clarity the inability of Dr. Worsham to testify personally about his expectations in regard to the referral of Burroughs to Dr. McAlhany.\\nIn an action for medical malpractice, the fact that a family practitioner referred the patient to a specialist does not, in and of itself, establish due care. See Marchese v. Monaco, 52 N.J.Super. 474, 145 A.2d 809 (1958). In spite of referral, a family practitioner still owes the patient the duty to exercise that degree of knowledge, care, skill, and learning possessed and exercised under the same or similar circumstances by a competent family practitioner. Id.\\nThe mere fact that a family practitioner acts on the advice of another physician, even though a specialist, does not constitute a defense to an action based on unskilled treatment. Id. This record is replete with testimony emanating from various physicians concluding that Dr. Worsham, in diagnosing and treating the medical condition of Burroughs, failed to exercise that degree of knowledge, care, skill, and learning possessed and exercised by an ordinary, careful, and prudent family practitioner under the same or similar circumstances.\\nOn the merits, the testimony elicited from Dr. McAlhany demonstrated that Burroughs was referred to him for treatment of an incisional hernia, and that he examined Burroughs consistent with that referral. Dr. McAlhany testified he would do further testing in the event the reason for the referral was not proper or if he was asked. He professed that he was not informed of the patient's history of abdominal pain nor was he informed of Burroughs' anemia at the time of the referral.\\nDr. Worsham had ample opportunity to cross-examine Dr. McAlhany regarding whether he did further examination and whether it was something he was expected to do when a patient was referred to him. Based on the testimony presented, we find Worsham was not prejudiced by the exclusion of testimony regarding his expectations as to Dr. McAlhany. See Means v. Gates, 348 S.C. 161, 166, 558 S.E.2d 921, 924 (Ct.App.2001) (\\\"Before the Court of Appeals will reverse a judgment for an alleged error in the exclusion of evidence, the appellant must show prejudice.\\\"). The trial court did not abuse its discretion in excluding Worsham's testimony regarding his expectations of Dr. McAlhany's examination.\\nB. Burroughs' Failure to Follow-Up\\nWorsham maintains the judge erred in refusing to allow him to testify that his review of Dr. McAlhany's chart indicated Burroughs never returned for a follow-up visit. We determine the exclusion of this testimony was harmless as it would have been cumulative to other testimony in the record.\\nWorsham sought to testify, based on his reading of Dr. McAlhany's report, that Burroughs never returned for a follow-up visit. The trial court refused to allow Worsham to interpret Dr. McAlhany's records when Dr. McAlhany had already testified.\\nWhen Dr. McAlhany was asked whether Burroughs returned for a follow-up visit, he testified that Burroughs never returned. This point was brought out several times by Worsham's counsel during cross-examination. Therefore, the excluded testimony would have been merely cumulative to testimony already in the record. \\\"Generally, there is no abuse of discretion where the excluded testimony is merely cumulative of other evidence proffered to the jury.\\\" Commerce Center of Greenville, Inc. v. W. Powers McElveen & Assocs., Inc., 347 S.C. 545, 559, 556 S.E.2d 718, 726 (Ct.App.2001); see also Ott v. Pittman, 320 S.C. 72, 463 S.E.2d 101 (Ct.App.1995) (upholding trial judge's decision to exclude particular witness's testimony, which the Court of Appeals characterized as \\\"cumulative to that of other witnesses\\\").\\nThe trial court did not abuse its discretion in excluding Worsham's testimony that Burroughs missed his follow-up appointment with Dr. McAlhany.\\nIII. JURY CHARGE\\nWorsham asserts the trial court erred in failing to specifically charge that the standard of care his actions must be measured against was that of an ordinary, careful, and prudent physician \\\"in his specialty\\\" under the same or similar circumstances. We find that when the jury charges, including the two clarifying charges, are read as a whole, the trial judge properly enounced the standard of review by which Worsham's actions should be measured.\\nThe trial judge originally charged the jury regarding the standard of care as follows:\\nNow, in this case I will charge you that the law in regard to diagnosing a patient is that the degree of skill and care a physician must use in diagnosing a condition is that which would be exercised by a competent practitioner in the defendant doctor's field of medicine. And I will charge you that in this case the question is whether Dr. Worsham, in making a diagnosis, deviated from the applicable standard of care, either by not employing a particular procedure or by not ordering a particular test. And that is to be determined by what an ordinary, careful, and prudent physician would have done under the same or similar circumstances in this case.\\n. What the law does require of a physician is this, that in the practice of \\u2014 he shall exercise that degree of knowledge, care and skill ordinarily possessed by members of his profession in good standing under the same or similar circumstances.\\n(emphasis added). Appellants did not object to the charge as given.\\nThe jury submitted a question to the judge which read: 'We are confused about what the law states the M.D. must do, as a minimum, to meet the standards of care.\\\" Appellants' attorneys then requested a charge to the jury \\\"addfing] the defendant doctor's field of medicine.\\\" The trial judge gave .the following clarifying charge:\\nIn this case, the law in South Carolina is, the question of whether a physician in making a diagnosis deviated from the applicable standard of care, either by not employing a particular procedure or by not administering a particular test, is to be determined by what an ordinary, careful and prudent physician would have done under the same or similar circumstances.\\nThe jury submitted a second question requesting further clarification of the standard of care and its application in this case. The judge charged the jury:\\nNow, doctors must do what an ordinary, reasonable, prudent doctor would do under the same or similar circumstances. If a doctor does something or fails to do something that an ordinary, reasonable doctor should have done under the \\u2014 under those circumstances then it would be negligence. Okay.\\nAs a general rule, you and I do not know what the standards of care are. Therefore we have to learn or hear what the standards of care are through expert witnesses, or expert testimony what are generally recognized and accepted practices and procedures which should be followed by the average, competent doctor in the defendant's profession, under the same or similar circumstances.\\n(emphasis added). Appellants did not object to this charge as given.\\nIn King v. Williams, 276 S.C. 478, 482, 279 S.E.2d 618, 620 (1981), the Supreme Court held: \\\"The degree of care which must be observed is, of course, that of an average, competent practitioner acting in the same or similar circumstances.\\\" Since the King, decision, this Court has defined medical malpractice as \\\"the failure of a physician to exercise that degree of care and skill which is ordinarily employed by the profession generally, under similar conditions and in like surrounding circumstances.\\\" Jernigan v. King, 312 S.C. 331, 333, 440 S.E.2d 379, 381 (Ct.App.1993). \\\"The standard for recovery has been summarized, 'To recover for medical malpractice, a plaintiff must show failure by a physician to exercise that degree of care and skill which is ordinarily employed by the profession under similar conditions and in like circumstances.' \\\" Keaton ex rel. Foster v. Greenville Hosp. Sys., 334 S.C. 488, 496, 514 S.E.2d 570, 574 (1999) (quoting Bonaparte v. Floyd, 291 S.C. 427, 434, 354 S.E.2d 40, 45 (Ct.App.1987)) (emphasis in original).\\nWhile the first clarifying charge fails to specifically state that the standard of care is based on a doctor in the same field of medicine, both the main charge and the second clarifying charge elucidate the jury as to the requirement that Worsham's actions are to be juxtaposed to those of a doctor in the same field of medicine. In looking at the charges given as a whole, we find no prejudicial error in the clarifying charge's failure to indicate that the standard of care is compared to doctors in the same field of medicine. See Keaton, 334 S.C. at 497, 514 S.E.2d at 575.\\nWorsham complains that the testimony establishing the standard of care was not by a medical professional in the area of family medicine, but was explained by an internal medicine specialist and a surgeon. We rule the experts who testified properly detailed the standard of care for a family practitioner based on their knowledge and experiences.\\nDr. Daniel Derman is board certified in internal medicine. He testified the standard of care for a family practitioner diagnosing and treating a patient -with symptoms of colon cancer is the same as the standard in internal medicine. Specifically, he stated: \\\"[F]or primary care in terms of being the first one on the front line, so to speak, who might see a colon cancer, it would not only be the same for family practice as internal medicine, but it's going to be the same all over the country as well.\\\"\\nDr. Randolph Baily, a colorectal surgeon, detailed his background and how he was qualified to establish the standard of care for family practitioners. He testified that he has taught diagnosis and treatment of colon cancer to students and residents in family practice at Baylor College of Medicine and the University of Texas Medical School in Houston. In addition, he declared that diagnosing colon cancer is something taught in medical school to all students regardless of their specialties. According to Dr. Baily, Worsham's actions failed to meet the appropriate standard of care for diagnosing and treating colon cancer.\\nFinally, Dr. Meher Medavaram, Burroughs' family practice doctor in Chicago, testified that the standard of care for family practitioners was consistent throughout the United States. She asserted Worsham failed to properly perform tests to determine the cause of Burroughs' anemia. She professed the standard of care required the performance of additional tests to rule out colon cancer.\\nThe testimony presented by Burroughs' expert witnesses established the standard of care for a doctor in family practice. The experts were each qualified to detail the standard of care in family practice. Thus, the testimony was properly admitted. See Means v. Gates, 348 S.C. 161, 558 S.E.2d 921 (Ct.App.2001) (admission or exclusion of expert testimony is matter within sound discretion of trial court, whose decision will not be disturbed on appeal absent abuse of discretion).\\nWe find no error in the jury charge or the testimony by Burroughs' experts used to establish and clarify the standard of care.\\nIV. INCONSISTENT VERDICTS\\nAppellants allege the jury's verdicts finding them liable for the wrongful death cause of action, but finding no liability for loss of consortium were inconsistent, and, therefore, a new trial should have been ordered. We find the argument raised is not properly preserved. Moreover, the assertion fails on the merits, as the causes of action are separate and distinct, and the verdicts were entirely consistent.\\nThe reading of the verdict by the trial judge and any subsequent objections are not included in the Record on Appeal. It is impossible for us to determine whether Appellants raised timely objections to the issue of the inconsistent verdicts. As such, the issue is not properly preserved for review on appeal. See Smith v. Phillips, 318 S.C. 453, 458 S.E.2d 427 (1995) (noting appellate court could not consider propriety of jury's verdict which found neighbor liable for nuisance but awarded no damages, where there was no objection at trial by neighbor or landowner which brought nuisance action, and neither party raised issue on appeal); Stevens v. Allen, 336 S.C. 439, 520 S.E.2d 625 (Ct.App.1999), aff'd, 342 S.C. 47, 536 S.E.2d 663 (2000) (holding there is no duty-imposed on trial judge to question jury's verdict of liability, but no damages, unless requested to by a party).\\nThe order denying Appellants' motions for judgment notwithstanding the verdict and for a new trial absolute is in the Record on Appeal. However, the motions themselves are not. The order incorporates by reference the post-trial motions made during the hearing. Yet, the portion of the hearing in which the motions were made is not included in the Record on Appeal. The order finds the motions not preserved. The only possible reference to this issue is where the judge notes: \\\"[T]he Defendants failed to make a timely objection to the form of the jury verdict thereby waiving same.\\\" The Record on Appeal does not allow us to determine whether a proper objection or motion for a new trial was made based on this specific issue. Appellants had the burden to furnish a sufficient record from which an intelligent review could be conducted. See D & D Leasing Co. v. Gentry, 298 S.C. 342, 380 S.E.2d 823 (1989) (emphasizing that burden is on appellant to furnish a sufficient record from which an intelligent review can be conducted and finding that appellant did not meet this burden; thus, the appellate court properly dismissed the appeal).\\nIn addition, Appellants' claims fail on the merits. Under South Carolina law, unlike that of some other states, loss of consortium is an independent action, not derivative. Preer v. Mims, 323 S.C. 516, 476 S.E.2d 472 (1996); Stewart v. State Farm Mut. Auto. Ins. Co., 341 S.C. 143, 533 S.E.2d 597 (Ct.App.2000). \\\"Although loss of consortium is an independent action, case law has held the right of action does not accrue until the loss of the services, society and companionship of the spouse has actually occurred, which has been defined as the point when the spouse sustained the injuries.\\\" Stewart, 341 S.C. at 156, 533 S.E.2d at 604. \\\"Loss of consortium arises out of the special relationship between a husband and wife.\\\" Id. \\\"Any person may maintain an action for damages arising from an intentional or tortious violation of the right to the companionship, aid, society and services of his or her spouse.\\\" S.C.Code Ann. \\u00a7 15-75-20 (1977).\\nAccording to the Wrongful Death Act: 'Whenever the death of a person shall be caused by the wrongful act, neglect or default of another and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, the person who would have been liable, if death had not ensued, shall be liable to an action for damages.\\\" S.C.Code Ann. \\u00a7 15-51-10 (1977). \\\"Every such action shall be for the benefit of the wife or husband and child or children of the person whose death shall have been so caused, and, if there be no such wife, husband, child or children, then for the benefit of the parent or parents, and if there be none such, then for the benefit of the heirs of the person whose death shall have been so caused.\\\" S.C.Code Ann. \\u00a7 15-51-20 (Supp.2001).\\nThis Court has identified factors to be considered in assessing damages under the Wrongful Death Act. \\\"The general elements of damages recoverable are: (1) pecuniary loss, (2) mental shock and suffering, (3) wounded feelings, (4) grief and sorrow, (5) loss of companionship, and (6) deprivation of the use and comfort of the intestate's society, including the loss of his experience, knowledge, and judgment in managing the affairs of himself and of his beneficiaries.\\\" Self v. Goodrich, 300 S.C. 349, 351, 387 S.E.2d 713, 714 (Ct.App.1989).\\nWhile the factors to consider for damages in a wrongful death action include loss of consortium, we find this is not sufficient to say that a plaintiffs verdict on wrongful death and a defense verdict on loss of consortium are inconsistent. First, the parties benefiting from the actions may be separate and distinct. Only the spouse may bring a loss of consortium claim. However, the spouse, children, parents, or other heirs may be the beneficiaries of the wrongful death award.\\nAdditionally, the statute establishes that the claim for loss of consortium is to compensate the spouse for \\\"tortious violation of the right to the companionship, aid, society and services of his or her spouse.\\\" \\u00a7 15-75-20. In contrast, a wrongful death claim is to compensate the heirs of a decedent, who, if he had survived, could have brought a personal injury action. \\u00a7 15-51-10. This Court, as well as the South Carolina Supreme Court, has ruled claims for personal injury and loss of consortium are separate and distinct claims, and a ruling on one does not bar, nor entitle, recovery on the other claim. See, e.g., Graham v. Whitaker, 282 S.C. 393, 321 S.E.2d 40 (1984); Page v. Crisp, 303 S.C. 117, 399 S.E.2d 161 (Ct.App.1990).\\nWe find that, as a wrongful death claim is premised on the decedent's ability to have brought a personal injury claim if he had survived, the rulings in the cases of Graham and Page are apposite and analogous to the present case. Verdicts awarding damages for wrongful death, but finding for the defense on loss of consortium, are not inconsistent. We hold the two claims are separate and distinct, and, as pronounced in Page, \\\"[e]ach litigant was entitled to a verdict based on the law and the evidence.\\\" Page, 303 S.C. at 119, 399 S.E.2d at 162.\\nCONCLUSION\\nWe rule the testimony of Dr. Green was properly admitted because it did not violate the \\\"loss of chance of survival\\\" doctrine. We find that the testimony regarding Burroughs' future promotion opportunities and possible salaries was admissible as it explained the extent and nature of Burroughs' injuries. We further remind the Bench and Bar that the standard of admissibility is different from the standard of proof for evidence of future damages. We hold the trial judge did not err in excluding Worsham's testimony regarding his expectations of Dr. McAlhany's care or Burroughs' failure to follow up with Dr. McAlhany. Testimony was already in the record, making Worsham's testimony cumulative and unnecessary. The trial judge's charges, when viewed as a whole, were proper and adequate statements of the law of South Carolina regarding the standard of care for a family practitioner. We determine the claims of wrongful death and loss of consortium are separate and distinct causes of action. Apodictically, we conclude the jury's verdicts, one awarding damages for wrongful death and the other denying damages for loss of consortium, were not inconsistent. Accordingly, the judgment of the Circuit Court is\\nAFFIRMED.\\nHEARN, C.J., and CURETON, J., concur.\"}"
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