Opinion
8518
April 10, 1913.
Before DEVORE, J., Anderson, October term, 1912. Affirmed.
Action by J.M. Burgess against J.B. Tucker. Defendant appeals.
Messrs. Bonham, Watkins Allen, for appellant, cite: As to charge on facts: 47 S.C. 488; 90 S.C. 53, 162; 91 S.C. 217; 53 S.C. 150; 92 S.C. 188; 70 S.C. 49; 76 S.C. 49.
Messrs. Breazeale Pearman, contra, cite: Charge not on facts: 33 S.C. 241. Charge states legal principle: 93 S.C. 183; 63 S.C. 312. Obvious inadvertence in charge is not error: 32 S.C. 405; 40 S.C. 92, 153, 389, 534; 33 S.C. 83; 37 S.C. 535; 41 S.C. 452.
April 10, 1913. The opinion of the Court was delivered by
In this action, for persuading and enticing one Matilda Owens to break her contract with the plaintiff and leave his service, the plaintiff secured a judgment for five hundred dollars, actual and punitive damages. The appeal relates entirely to the alleged errors in the charge to the jury.
There is no foundation for the first three exceptions, assigning error in that the Circuit Judge violated the Constitution in charging on the facts. The expression, "in a case of this kind, enticement is the inducement," and other like expressions do not for a moment bear the construction that the Circuit Judge meant that the plaintiff had made out a case of enticement; on the contrary, it is perfectly clear that the meaning was that he was about to state the law applicable in any action for enticement.
The fourth exception assigns error in the following instruction: "Not only is the conscious invasion of the rights of another, in a wanton, wilful and reckless manner an act of wrong, but the same result follows when the wrongdoer does not actually realize that he is invading the rights of another; provided the act is committed in such a manner that a person of ordinary reason and prudence would say it was a reckless disregard of another's rights." This is the law as laid down in Tolleson v. Southern Railway, 88 S.C. 7; 70 S.E. 311.
The basis of the fifth exception is that the judge charged the jury, "the plaintiff cannot sue on any other contract except the one set forth in this complaint," the objection being that the words "sue" was used instead of the word "recover." The point is too fine. The meaning of the Judge was obvious, and if counsel for the defendant thought the inadvertence was material, he should have called attention to it.
There was no confusion in the following language assigned as error in the sixth exception: "And I charge you that if either party violated the contract, breached it, that is, broke it, refused to carry it out, and to perform the conditions therein stated, then the other party would have a right of action for damages based on the breach of the contract." From the context, it is clear that the right of action referred to was the right of action by the plaintiff and Matilda Owens, each against the other, and not any right that might exist in favor of the plaintiff against the defendant.
The remaining exceptions complain of error in refusing to order a new trial on the ground that the verdict was contrary to the preponderance of the evidence. It is too well settled for discussion that this Court cannot reverse a judgment on that ground.
Affirmed.