Fogle v. Southern Ry.

The opinion of the Court was delivered by

This is an action for damages, alleged to have been sustained by the plaintiff through the negligence and wantonness of the defendant in failing and refusing to issue a bill of láding for the shipment of a carload of melons, valued at $75.

The jury rendered a verdict in favor of the plaintiff for $150; and the defendant appealed upon exceptions, which will be incorporated in the report of the case and considered in regular order.

First exception.

1 When the portion of the charge, set out in the exception, is considered in connection with the other parts thereof, it will be seen that his Honor, the presiding Judge, did not instruct the jury so as to cause them reasonably to believe that in order for the plaintiff to recover it was only necessary for him to prove that he requested the defendant to ship the melons, and that the *203 office was closed, but, also, that it was incumbent on the plaintiff to prove negligence or wilfulness from which he suffered damages.

Second exception.

We are unable to discover, in that portion of the charge set out in the exception, any expressions on the part of the presiding Judge, manifesting an intention to convey the idea that punitive damages could be given for mere negligence.

Third exception.

2 The appellant’s attorney, in his argument, contends that the words “can not,” instead of “ought not,” should have been used.

We are unable to discover any prejudicial error in this respect.

Fourth, fifth and sixth exceptions.

3 Following the arrangement adopted by the appellant’s attorney, these exceptions will be considered together. They can not be sustained (even if it should be conceded that there was no evidence of punitive damages), for the reason that the question whether there were such damages is not properly before this Court for consideration, as there was not a motion for a nonsuit or the direction of a verdict, as required by Rule 77 of the Circuit Court, which provides that “the point that there is no evidence to support an alleged cause of action shall be first made, either by a motion for nonsuit or a motion to direct a verdict.”

The appellant’s attorney relies upon the case of Barfield v. Coker, 73 S. C., 181, 53 S. F., 170. The opinion in that case, however, was filed in January, 1906, and the rule was not adopted until December, 1906.

Seventh exception.

4 This exception is too general to be considered.

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