The opinion of the Court was delivered by
Mr. ChiEE Justice Watts.
These two suits were, by agreement of counsel, tried together at the May, 1929, term of the Court of Common Pleas for Charleston County. The suit brought by J. P. Chantry was commenced on February 16, 1929, by service of a summons and complaint, and the action brought by Mrs. Sarah Miller was begun by the service of a summons and complaint on February 21, 1929. Both actions arose out of the same accident. The plaintiff Chantry claimed
damages in the sum of $10,000 for personal injuries, damage to his car, and loss of its use, alleged to have been caused by the willful negligence of the defendant, its agents and servants, in a collision with a Buick car owned by the defendant, which occurred on January 28, 1929. The plaintiff Sarah Miller was a passenger in the car driven by Chantry and claimed damages for personal injuries in the sum of $20,000, alleging the same specifications of negligence as those stated by the plaintiff Chantry. The defendant, Pettit Motor Company, by its answer, admitted that the car, in which plaintiffs were riding at the time of the accident, was struck by a Buick car owned by the defendants but denied all the other allegations of the complaints.
The cases were tried May 8, 1929, before Honorable John S. Wilson and a jury. The testimony of the two plaintiffs was that, while they were riding in a Studebaker roadster, owned and driven by Chantry, towards the City of Charleston, at ábout twenty miles an hour, the car was struck a severe blow from the rear by a Buick car, the force of which drove the Studebaker car into the ditch beside the road and turned it over, pinning plaintiffs beneath the same, causing injuries to the car and both plaintiffs.
The testimony of plaintiffs’ witnesses was, in substance, as follows: That the Buick car which ran into the rear of the car in which the plaintiffs were riding was driven by a negro who seemed under the influence of either alcohol or a drug. That it bore a dealer’s demonstrator’s license. That the driver at the scene and immediately after the collision admitted to the plaintiff Chantry that he was working for Pettit Motor Company and also to the witness, F. W. Rivers, at the same time, that “he was working for the Pettit Motor Company. To ’phone them and they would get him out of this trouble. That he has been working for them a number of years and had one accident and they would take care of him.” That Pettit Motor Company’s truck came up and took possession of the Buick aütomobile.
The testimony of defendant’s witnesses was, in substance, as follows:
The Buick car which was involved in the accident had been owned until a short time before the' accident by Mrs. Riley Ely. Her husband was the president and general manager of the defendant, Pettit Motor Company, a corporation engaged in the business of selling and repairing automobiles. A short time prior to the accident, Mrs. Ely traded the Buick to the Pettit Motor Company for a four-door Ford sedan. At the time this trade was effected, a demonstrator’s license was placed on the Buick and this license was on it at the time of the accident. Pettit Motor Company could not make immediate delivery of the Ford, and permitted Mrs. Ely to continue to use the Buick until delivery could be made of the kind of Ford she wished. The negro, who was driving the Buick at the time of the accident, was Lee Hamilton. At the time the accident occurred, he was employed as butler and chauffeur at the home of Mr. and Mrs. Ely, and had been employed by them as such for several years prior to the accident. He had never at any time worked for the Pettit Motor Company, but was the personal servant of the Elys. He had never been allowed to use the Elys’ car for any business of his own, except on one occasion when they allowed him to use it to attend his wife’s funeral. He had never had an accident prior to this one.
Mrs. Ely was in Charlotte, N. C., at the time of the accident. Her sister, Mrs. Menken, was in the habit of using the car when Mrs. Ely was away from the city, and at about 2:30 on the afternoon of the accident Mrs. Menken got Llamilton to drive her in the Buick car to the Gloria Theater. She told him to wait outside the treater until she came out. Instead of doing this, Hamilton, without permission, drove the car to a place seven miles distant from Charleston, in order to try to collect a debt due him personally. He did not find the man who owed him the money, and was told
he had gone to Summerville. He then drove' to Summer-ville in the hope of finding him, but failed to do so. On the way back from Summerville a negro asked him for a lift. He took the man into the car, and as they were approaching Charleston the accident occurred which is the subject of this suit. Mr. Ely learned of the accident shortly after it occurred and sent a truck of the Pettit Motor Company to bring the Buick to the city. After the accident Mr. Ely continued to employ Hamilton, for the reason that Hamilton owed him for some advances he had made him, and he expected him to repay the debt in service.
Hamilton denied that he had stated after the accident that he worked for the Pettit Motor Company, and, on being asked whether he had not made such a statement at a hearing before a magistrate when he was charged with recklesg driving at the time of this accident, he replied that he did not recall having made such a statement, and that, if he had made it, it was not true.
In reply plaintiffs produced a witness who testified that, at the hearing before the magistrate, Hamilton had said he had been working for the Pettit Motor Company for several years and had been driving the car with the knowledge of that company.
At the close of all the testimony, the defendant moved for a direction of verdict in its favor in both cases, on the grounds that the evidence failed to show that the person driving defendant’s car at the time of the accident was its agent or servant; that the evidence showed that the person driving its car was not engaged on its business, but on a personal mission, and was using its car without its authority or permission, and that, even if there was evidence that he was using it with defendant’s permission, the unsupported testimony was that he was using it on his own private business.
The presiding Judge overruled the motion, and the case was submitted to the jury, which found a verdict for the
plaintiff Chantry in the sum of $4,000, and for the plaintiff Miller in the sum of $2,000.
The defendant thereupon moved for a new trial of both cases upon substantially the same grounds as those urged in support of the motion for a directed verdict, and upon the ground that there was not sufficient evidence to support the verdicts. The presiding Judge took the motion under advisement, and on May 27, 1929, signed an order refusing the motion. Defendant now appeals upon the exceptions hereinafter stated.
The respondent thus states the questions for determination :
“While the appellants’ exceptions are twelve in number, and they by their brief sub-divide these twelve exceptions ijito five questions, we submit that there are only two issues raised in the entire case, to wit:
“1.
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The opinion of the Court was delivered by
Mr. ChiEE Justice Watts.
These two suits were, by agreement of counsel, tried together at the May, 1929, term of the Court of Common Pleas for Charleston County. The suit brought by J. P. Chantry was commenced on February 16, 1929, by service of a summons and complaint, and the action brought by Mrs. Sarah Miller was begun by the service of a summons and complaint on February 21, 1929. Both actions arose out of the same accident. The plaintiff Chantry claimed
damages in the sum of $10,000 for personal injuries, damage to his car, and loss of its use, alleged to have been caused by the willful negligence of the defendant, its agents and servants, in a collision with a Buick car owned by the defendant, which occurred on January 28, 1929. The plaintiff Sarah Miller was a passenger in the car driven by Chantry and claimed damages for personal injuries in the sum of $20,000, alleging the same specifications of negligence as those stated by the plaintiff Chantry. The defendant, Pettit Motor Company, by its answer, admitted that the car, in which plaintiffs were riding at the time of the accident, was struck by a Buick car owned by the defendants but denied all the other allegations of the complaints.
The cases were tried May 8, 1929, before Honorable John S. Wilson and a jury. The testimony of the two plaintiffs was that, while they were riding in a Studebaker roadster, owned and driven by Chantry, towards the City of Charleston, at ábout twenty miles an hour, the car was struck a severe blow from the rear by a Buick car, the force of which drove the Studebaker car into the ditch beside the road and turned it over, pinning plaintiffs beneath the same, causing injuries to the car and both plaintiffs.
The testimony of plaintiffs’ witnesses was, in substance, as follows: That the Buick car which ran into the rear of the car in which the plaintiffs were riding was driven by a negro who seemed under the influence of either alcohol or a drug. That it bore a dealer’s demonstrator’s license. That the driver at the scene and immediately after the collision admitted to the plaintiff Chantry that he was working for Pettit Motor Company and also to the witness, F. W. Rivers, at the same time, that “he was working for the Pettit Motor Company. To ’phone them and they would get him out of this trouble. That he has been working for them a number of years and had one accident and they would take care of him.” That Pettit Motor Company’s truck came up and took possession of the Buick aütomobile.
The testimony of defendant’s witnesses was, in substance, as follows:
The Buick car which was involved in the accident had been owned until a short time before the' accident by Mrs. Riley Ely. Her husband was the president and general manager of the defendant, Pettit Motor Company, a corporation engaged in the business of selling and repairing automobiles. A short time prior to the accident, Mrs. Ely traded the Buick to the Pettit Motor Company for a four-door Ford sedan. At the time this trade was effected, a demonstrator’s license was placed on the Buick and this license was on it at the time of the accident. Pettit Motor Company could not make immediate delivery of the Ford, and permitted Mrs. Ely to continue to use the Buick until delivery could be made of the kind of Ford she wished. The negro, who was driving the Buick at the time of the accident, was Lee Hamilton. At the time the accident occurred, he was employed as butler and chauffeur at the home of Mr. and Mrs. Ely, and had been employed by them as such for several years prior to the accident. He had never at any time worked for the Pettit Motor Company, but was the personal servant of the Elys. He had never been allowed to use the Elys’ car for any business of his own, except on one occasion when they allowed him to use it to attend his wife’s funeral. He had never had an accident prior to this one.
Mrs. Ely was in Charlotte, N. C., at the time of the accident. Her sister, Mrs. Menken, was in the habit of using the car when Mrs. Ely was away from the city, and at about 2:30 on the afternoon of the accident Mrs. Menken got Llamilton to drive her in the Buick car to the Gloria Theater. She told him to wait outside the treater until she came out. Instead of doing this, Hamilton, without permission, drove the car to a place seven miles distant from Charleston, in order to try to collect a debt due him personally. He did not find the man who owed him the money, and was told
he had gone to Summerville. He then drove' to Summer-ville in the hope of finding him, but failed to do so. On the way back from Summerville a negro asked him for a lift. He took the man into the car, and as they were approaching Charleston the accident occurred which is the subject of this suit. Mr. Ely learned of the accident shortly after it occurred and sent a truck of the Pettit Motor Company to bring the Buick to the city. After the accident Mr. Ely continued to employ Hamilton, for the reason that Hamilton owed him for some advances he had made him, and he expected him to repay the debt in service.
Hamilton denied that he had stated after the accident that he worked for the Pettit Motor Company, and, on being asked whether he had not made such a statement at a hearing before a magistrate when he was charged with recklesg driving at the time of this accident, he replied that he did not recall having made such a statement, and that, if he had made it, it was not true.
In reply plaintiffs produced a witness who testified that, at the hearing before the magistrate, Hamilton had said he had been working for the Pettit Motor Company for several years and had been driving the car with the knowledge of that company.
At the close of all the testimony, the defendant moved for a direction of verdict in its favor in both cases, on the grounds that the evidence failed to show that the person driving defendant’s car at the time of the accident was its agent or servant; that the evidence showed that the person driving its car was not engaged on its business, but on a personal mission, and was using its car without its authority or permission, and that, even if there was evidence that he was using it with defendant’s permission, the unsupported testimony was that he was using it on his own private business.
The presiding Judge overruled the motion, and the case was submitted to the jury, which found a verdict for the
plaintiff Chantry in the sum of $4,000, and for the plaintiff Miller in the sum of $2,000.
The defendant thereupon moved for a new trial of both cases upon substantially the same grounds as those urged in support of the motion for a directed verdict, and upon the ground that there was not sufficient evidence to support the verdicts. The presiding Judge took the motion under advisement, and on May 27, 1929, signed an order refusing the motion. Defendant now appeals upon the exceptions hereinafter stated.
The respondent thus states the questions for determination :
“While the appellants’ exceptions are twelve in number, and they by their brief sub-divide these twelve exceptions ijito five questions, we submit that there are only two issues raised in the entire case, to wit:
“1. That the trial Judge committed no error in admitting the statement made by the negro driver, Dee Hamilton.
“2. That the trial Judge did not abuse his discretion in refusing to direct a verdict or grant a new trial on the ground of insufficiency of evidence as to the agency of the driver and that he was acting in the scope of his employment.”
We see no error in admitting the statement of Lee Hamilton; it was part of
res gestae.
In the case of
Snipes v. Augusta-Aiken R. & E. Corp.
151 S. C., 391, 149 S. E., 111, 112, decided bythis Court on July 15, 1929, where the vital issue was identically the same as the issue raised in the instant case, to wit, “whether the driver was an agent of the defendant company acting within the scope of his employment,” the statement of the alleged agent was made forty-five minutes after the collision, and a second declaration was made a month later. The trial Judge ruled in that case that the statement was admitted not as a part of the
res
gestae, but on the theory that: “Although not a part of the
res gestae
as to the immediate
transaction, a part of the
res gestae
as to the general transaction in its entirety.”-
The Court affirmed that decision, with Justice Cothran dissenting. Justice Cothran dissented, however, on the ground that, since the statement was not a part of the
res gestae,
it was inadmissible, and in his dissenting opinion stated that, if it had been a part of the
res gestae,
it would have been admissible, and, if admissible, the jury had a right to believe it, in which event the judgment should be affirmed.
There is no question that the statement in the case at bar was a part of the
res gestae,
as the Court in passing on the objection to the introduction of the testimony said: “I will allow him to say what he said right at the accident, admissions after that I don’t think are competent.”
Mr. Tiffany (2d Ed.) Par. 106, as Justice Cothran stated in the
Snipes case, supra:
“makes the matter as clear as sunlight.”
In
Shelton v. Railroad Co.,
86 S. C., 98, 67 S. E., 899, 901, this Court said: “In
State v. McDaniel,
68 S. C., 304, 47 S. E., 384, 102 Am. St. Rep., 661, it was held that, while the declaration, in such cases, to be admissible ás part of the
res gestae,
must be substantially contemporaneous with the litigated transaction, and be the instinctive, spontaneous utterance of the mind, while under the active influence of the transaction, the circumstances precluding the idea that it is the result of reflection or design.”
It will be noted the trial Judge, in the first instance, would only permit the statements made right at the accident which, as stated, was part of the
res gestae.
In addition, however, if we- assume for the sake of argument that it was not a part of
res gestae,
any such error was cured when counsel for appellant failed to move for a nonsuit and thereafter asked his witness, Lee Hamilton, whether or not he made any .such statement, and, if not, what statement did he make. And again
along the same line of questioning, appellant’s counsel asked the same negro if they had ever allowed him to use the car for himself, to which he replied, only once. Thereafter, under cross-examination, the negro denied that he had made a contradictory statement in the Magistrate’s Court to the effect that he was in the habit of driving it all the time with the defendant’s knowledge. In reply to which the plaintiff put up, without objection, a practicing attorney who testified that the negro did so state in the Magistrate’s Court.
In the absence of a motion for a nonsuit, such questions by appellant would cure any error, even if it had been committed so far as the introduction of this line of testimony was concerned.
In
Williamson v. Pike,
140 S. C., 381, 138 S. E., 831, 832, Mr. Justice Blease says:
“In the case of
Osteen v. S. C. Cotton Oil Co.,
102 S. C., 146, 86 S. E., 202, L. R. A., 1916-B, 629, the following was held:
“ 'One who is in possession of property of the owner, and who uses it in the service of the owner, is presumptively a servant of the owner.’ Syllabus.
“The principle announced in the
Osteen case
has been approved in other cases. See
Keen v. Army Cycle Mfg.
Co., 124 S. C., 342, 117 S. E., 531, and
Burbage v. Curry,
127 S. C., 349, 121 S. E., 267.”
Under the authority of the cited cases, we think the facts reviewed by us were entirely sufficient to sustain the action of the circuit Judge in sending the case to the jury.
Mooney v. Gilreath,
124 S. C., 1, 117 S. E., 186.
We¡ see no error on the part of his Honor in refusing to direct a verdict or grant a new trial. He did not abuse his discretion; there was testimony to go to the jury as to whether the driver was the agent of the appellant acting in the scope of his authority.
All exceptions are overruled, and judgment affirmed.
Mr. Justice Carter concurs in result.