The opinion of the Court was delivered by
Mr. Justice Cothran.
Action for $740.95 damages, on account of the loss of three mules shipped over the Seaboard Air Dine Railway, from Atlanta, Ga., to Pageland, S. C., on January 22, 1920. Upon trial the plaintiff had a verdict for the full amount claimed, but upon motion of defendant the Circuit Judge ordered a new trial, and from this order the plaintiff has appealed.
The evidence tends to establish the following facts:
The plaintiff purchased in Atlanta 19 mules and 2 horses oh January 22, 1920, which he prepared to ship to Page-land, S. C., in Chesterfield County, over the Seaboard Air Line Railway. It may be a typographical error that the stock was loaded on January 22d, and did not leave Atlanta until January 28th; but, however that may be, the record so shows, and upon this appeal it will be so taken.
The movement of the stock was as follows: Loaded in Atlanta January 22d; left Atlanta January 28th; arrived in Abbeville January 29th, 6 p. m.; unloaded, fed, and watered at Abbeville January 29th, 6 p. m.; reloaded at Abbeville January 30th, 2 a. m.; left Abbeville January 30th,-a. m.; arrived at Hamlet January 31st, 10:30 a. m.; unloaded, fed, and watered at Hamlet January 31st, 11a. m. ; reloaded at Hamlet February 1st, at 7 p. m.; arrived at Pageland February 4th.
Three of the mules were, sick when unloaded at Hamlet, and died there, before the remainder of the carload was reloaded for the final destination. The plaintiff testified that he and a veterinarian inspected the stock closely before they were loaded in Atlanta and that they were in perfect condition. The agent of the carrier at Abbeville testified that, while they were unloaded there to be fed and watered, there were no exceptions noted as to the condition of the animals. The veternarian produced by the, defendant testified that the mules died from influenza, which might have been caused by exposure.
At the close of all of the, testimony the defendant moved' for a directed verdict, upon the ground that there was no> evidence in the case of any act of negligence on the part of the, carrier, causing the death of the mules.' The Circuit Judge refused the motion, saying:
“I rather think there is some issuable fact for the jury to settle, and I will let them determine it.”
His order granting a new trial was based upon a consideration of the evidence, and a conclusion therefrom inconsistent with the verdict. This is shown by his refusal to direct a verdict, and from the terms of his order, which will be reported. It is clear from the authorities that under these circumstances his order is not appealable. See the case of
Doughty v. Northwestern R. Co., 92
S. C., 361; 75 S. E., 553, which contains an exhaustive, review of the cases upon the subject, and particularly the cases of
Massey v. Adams,
3 S. C., 263.
Marshall v. C. & S. R. Co.,
57 S. C., 138; 35 S. E., 497, and
Pace v. A. C. L. R. Co.,
83 S. C., 33; 64 S. E., 915. In the Massey Case the Court said:
“If it [the order for a new trial] was founded, either wholly or in part,
on a conclusion from the facts contrary to that of the jury,
* * * we cannot interfere.”
In the Marshall Case:
“If the Court had granted the new trial on his view of the evidence, and had concluded therefrom that plaintiff had sustained the, charge of negligence, * * * we could not interfere.”
In the, Pace Case, it was held that, where the new trial was granted “on the ground that there was no testimony that the, goods alleged to have been damaged were injured while in the possession of the defendant,” the order was not appealable. But, assuming that the order was granted upon the ground that there w'as no evidence at all tending to fix liability upon the carrier, and that such ruling presented an issue of law, it by no means follows that the order was appealable. The Court has held in numerous cases, many of which are cited in the respondent’s argument, particularly
Doughty v. Northwestern R. Co., 92
S. C., 361; 75 S. E., 553, that in order to render it appealable, two essential elements must appear in an order granting a new trial: (1) The order must have been based upon a matter of law; and (2) the matter of law must have been so controlling in its influence as to be decisive of the case, and
justify as a matter of law, judgment absolute by this Court against the appellant in the event of its affirmance.
Take this very case as an illustration: The plaintiff recovered a .judgment for $740.95 against the defendant. Assume that the Circuit Judge granted a new trial upon the ground that there was no evidence tending to show negligence on the part of the railroad company, and that that presented a matter of law. Under the sweeping provisions of Section 11 (Code Civ. Proc., 1902), “if the Supreme Court shall determine that no- error was committed in granting the new trial, it shall render judgment absolute, upon the right of the appellant,” the plaintiff would lose his entire claim, not upon the merits of the case, controlled by an overmastering principle of law, but upon a defect of proof, which may be supplied upon another trial. Or suppose a case where the presiding Judge, during the course of a tedious trial, has committed an error in the admission of evidence, in his charge, or in the conduct of the case, not at all affecting the merits of the case, or in a matter of law not at all decisive of the controversy, and upon appeal from his order granting a new trial this Court should hold no- really prejudicial error, it would seem hard that the plaintiff should go- out of Court with his claim absolutely concluded. His claim is at law, depending upon an issue of fact, which he has the constitutional right to have tried by a jury, and not disposed of by this Court, which has jurisdiction solely over issues of law.
That the section of the Code has its limitations is clearly shown by the case of
Lampley v. Atlantic C. L. R.
Co., 77 S. C., 319; 57 S. E., 1104, in an exceedingly clear opinion by'the late Chief Justice Pope, in which he says:
“Construing the question under consideration in the light of the powers of the Court, it would seem that only those orders granting new trials are appealable in cases in which, if the Court determine, that there was no error of law committed, it may then go - further and render judgment absolute upon the right of the plaintiff. The provision of
the Code is mandatory. It does not give this Court discretionary power, and allow it to render final judgment, if it sees fit; but it requires that it shall render such judgment. An impossibility cannot be required of the Court, nor can an Act of the Legislature supersede the, Constitution and give the Court power to decide questions of fact as well as of law. When a duty is required of any officer or tribunal such officer or tribunal must be vested with power to perform that duty.
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The opinion of the Court was delivered by
Mr. Justice Cothran.
Action for $740.95 damages, on account of the loss of three mules shipped over the Seaboard Air Dine Railway, from Atlanta, Ga., to Pageland, S. C., on January 22, 1920. Upon trial the plaintiff had a verdict for the full amount claimed, but upon motion of defendant the Circuit Judge ordered a new trial, and from this order the plaintiff has appealed.
The evidence tends to establish the following facts:
The plaintiff purchased in Atlanta 19 mules and 2 horses oh January 22, 1920, which he prepared to ship to Page-land, S. C., in Chesterfield County, over the Seaboard Air Line Railway. It may be a typographical error that the stock was loaded on January 22d, and did not leave Atlanta until January 28th; but, however that may be, the record so shows, and upon this appeal it will be so taken.
The movement of the stock was as follows: Loaded in Atlanta January 22d; left Atlanta January 28th; arrived in Abbeville January 29th, 6 p. m.; unloaded, fed, and watered at Abbeville January 29th, 6 p. m.; reloaded at Abbeville January 30th, 2 a. m.; left Abbeville January 30th,-a. m.; arrived at Hamlet January 31st, 10:30 a. m.; unloaded, fed, and watered at Hamlet January 31st, 11a. m. ; reloaded at Hamlet February 1st, at 7 p. m.; arrived at Pageland February 4th.
Three of the mules were, sick when unloaded at Hamlet, and died there, before the remainder of the carload was reloaded for the final destination. The plaintiff testified that he and a veterinarian inspected the stock closely before they were loaded in Atlanta and that they were in perfect condition. The agent of the carrier at Abbeville testified that, while they were unloaded there to be fed and watered, there were no exceptions noted as to the condition of the animals. The veternarian produced by the, defendant testified that the mules died from influenza, which might have been caused by exposure.
At the close of all of the, testimony the defendant moved' for a directed verdict, upon the ground that there was no> evidence in the case of any act of negligence on the part of the, carrier, causing the death of the mules.' The Circuit Judge refused the motion, saying:
“I rather think there is some issuable fact for the jury to settle, and I will let them determine it.”
His order granting a new trial was based upon a consideration of the evidence, and a conclusion therefrom inconsistent with the verdict. This is shown by his refusal to direct a verdict, and from the terms of his order, which will be reported. It is clear from the authorities that under these circumstances his order is not appealable. See the case of
Doughty v. Northwestern R. Co., 92
S. C., 361; 75 S. E., 553, which contains an exhaustive, review of the cases upon the subject, and particularly the cases of
Massey v. Adams,
3 S. C., 263.
Marshall v. C. & S. R. Co.,
57 S. C., 138; 35 S. E., 497, and
Pace v. A. C. L. R. Co.,
83 S. C., 33; 64 S. E., 915. In the Massey Case the Court said:
“If it [the order for a new trial] was founded, either wholly or in part,
on a conclusion from the facts contrary to that of the jury,
* * * we cannot interfere.”
In the Marshall Case:
“If the Court had granted the new trial on his view of the evidence, and had concluded therefrom that plaintiff had sustained the, charge of negligence, * * * we could not interfere.”
In the, Pace Case, it was held that, where the new trial was granted “on the ground that there was no testimony that the, goods alleged to have been damaged were injured while in the possession of the defendant,” the order was not appealable. But, assuming that the order was granted upon the ground that there w'as no evidence at all tending to fix liability upon the carrier, and that such ruling presented an issue of law, it by no means follows that the order was appealable. The Court has held in numerous cases, many of which are cited in the respondent’s argument, particularly
Doughty v. Northwestern R. Co., 92
S. C., 361; 75 S. E., 553, that in order to render it appealable, two essential elements must appear in an order granting a new trial: (1) The order must have been based upon a matter of law; and (2) the matter of law must have been so controlling in its influence as to be decisive of the case, and
justify as a matter of law, judgment absolute by this Court against the appellant in the event of its affirmance.
Take this very case as an illustration: The plaintiff recovered a .judgment for $740.95 against the defendant. Assume that the Circuit Judge granted a new trial upon the ground that there was no evidence tending to show negligence on the part of the railroad company, and that that presented a matter of law. Under the sweeping provisions of Section 11 (Code Civ. Proc., 1902), “if the Supreme Court shall determine that no- error was committed in granting the new trial, it shall render judgment absolute, upon the right of the appellant,” the plaintiff would lose his entire claim, not upon the merits of the case, controlled by an overmastering principle of law, but upon a defect of proof, which may be supplied upon another trial. Or suppose a case where the presiding Judge, during the course of a tedious trial, has committed an error in the admission of evidence, in his charge, or in the conduct of the case, not at all affecting the merits of the case, or in a matter of law not at all decisive of the controversy, and upon appeal from his order granting a new trial this Court should hold no- really prejudicial error, it would seem hard that the plaintiff should go- out of Court with his claim absolutely concluded. His claim is at law, depending upon an issue of fact, which he has the constitutional right to have tried by a jury, and not disposed of by this Court, which has jurisdiction solely over issues of law.
That the section of the Code has its limitations is clearly shown by the case of
Lampley v. Atlantic C. L. R.
Co., 77 S. C., 319; 57 S. E., 1104, in an exceedingly clear opinion by'the late Chief Justice Pope, in which he says:
“Construing the question under consideration in the light of the powers of the Court, it would seem that only those orders granting new trials are appealable in cases in which, if the Court determine, that there was no error of law committed, it may then go - further and render judgment absolute upon the right of the plaintiff. The provision of
the Code is mandatory. It does not give this Court discretionary power, and allow it to render final judgment, if it sees fit; but it requires that it shall render such judgment. An impossibility cannot be required of the Court, nor can an Act of the Legislature supersede the, Constitution and give the Court power to decide questions of fact as well as of law. When a duty is required of any officer or tribunal such officer or tribunal must be vested with power to perform that duty. In the present case we are met with the anomalous fact of the Legislature imposing a duty and the Constitution denying the power to perform it, if we attempt to apply the Act to all cases. The Constitution, however, being of superior force to a legislative act, so far as the power conferred is repugnant to the Constitution, it is of no effect. Also a cardinal rule of construction is that, when an Act can be so construed as not to be repugnant to the Constitution, it must receive that construction. Applying this rule to the Act now under consideration, if we, hold that it was intended to apply only tO' those cases in which the Court has power to' render final judgment, that is, cases involving questions of law only, then all difficulty disappears and the, Court can easily perform the duty imposed upon it.”
If the order granting a new trial is based upon a matter of law, the decision of which is conclusive, not simply
upon the appeal
but
u-pon the merits of the
controversy, leaving no issue of fact upon which the rights of the parties depend, the drastic provisions of the section apply; otherwise, not. This being a case, therefore, in which it would be impossible for this Court to render judgment absolute against the plaintiff, in the event of its affirmance of Judge, Mauldin’s order, it follows inevitably that the order is not appealable.
The judgment of this Court is that the appeal be dismissed, and that the case be remanded to the. Circuit Court for a new trial under Judge Mauldin’s order.
Mr. Justice Marion concurs.
Mr. Chief Justice Gary concurs in the result and in the concurring opinion of Messrs. Justices Marion, Watts and Fraser dissent.