Opinion
13667
July 14, 1933.
Before SHIPP, J., Greenville, February, 1933. Affirmed.
Action by W.M. Gathings against the Great Atlantic Pacific Tea Company. From a judgment in favor of plaintiff, defendant appealed. The judgment was affirmed as to actual damages and reversed as to punitive damages. From an order allowing a motion to correct the taxation of costs made by the Clerk of Court, and to tax the entire costs of appeal in favor of defendant against the plaintiff, plaintiff appeals.
The order of the Circuit Judge directed to be incorporated in the report of the case follows:
ORDERThis matter comes before me on a motion to correct the taxation of costs made herein by T.E. Christenberry, Clerk of the Court, and to tax entire costs of appeal in favor of the defendant-appellant against the plaintiff-respondent. After hearing argument I have concluded, for the reasons hereinafter stated, that the motion should be allowed and that all of the costs of appeal should be taxed against the plaintiff-respondent.
As appears from the record, there were two branches of the appeal in this case, one from the judgment in favor of the plaintiff, and the other from the order of Judge Rice requiring the printing of the testimony of certain witnesses and of all the exhibits. There was notice of appeal and exceptions from the judgment, and likewise there was notice and exceptions from the order of Judge Rice; all of these were embraced in the case and exceptions. The appeal from Judge Rice, in compliance with the rules of the Supreme Court, was contained in the appendix to the case and exceptions.
The Supreme Court filed one opinion. 168 S.C. 385, 167 S.E., 652, 656. As to the appeal from Judge Rice's order it was held that he was in error and that the testimony to which exception was taken was unnecessary for the consideration of the questions on appeal, and that the costs involved in printing such evidence should be awarded against the plaintiff-respondent. As to the appeal from the judgment, the Court declared: "As to the main appeal, the judgment of the Circuit Court is affirmed as to actual damages, and reversed as to punitive damages."
The amount of the actual damages was $2,000.00 and of the punitive damages, $400.00. So that the defendant, in securing the elimination of the punitive damages assessed by the jury at $400.00, secured a substantial modification of the judgment below and, under my interpretation of the decisions of this Court, is entitled to tax the entire costs of appeal against the plaintiff-respondent.
The final judgment rendered by the Supreme Court in this case is identical with that rendered in the case of Massey v. Hines, Director General, 117 S.C. 1, 3, 108 S.E., 181, 182, to wit: "The judgment of this Court is that so much of the judgment of the Circuit Court as is for $8,000.00 actual damages be affirmed, and that so much of the judgment as is for $12,000.00 punitive damages be reversed."
As I understand the case, the doctrine on this subject is that if on appeal the Supreme Court modifies the judgment of the Circuit Court, then the appellant is to be regarded as the prevailing party and is entitled to the taxation of his costs. If, however, the Supreme Court should award a new trial nisi, that is, unless the respondent should remit a portion of the judgment, and affirming the judgment, if this remittance should be made, then under the doctrine this would be an affirmance and the respondent would be entitled to tax his costs.
This distinction is clearly set forth in the case of Franks v. Ross, 114 S.C. 196, 103 S.E., 518, 519, in the following language: "The result is practically the same when a judgment is modified on appeal as when it is affirmed on a condition * * * performed, except as to the right to tax the costs of appeal. But, as pointed out in the cases first cited herein, there is a material difference in the legal effect of the two forms of judgment. Where it is modified, the Court renders the final judgment, or directs it shall be rendered, and ends the litigation. But where it affirms a judgment upon a condition, it is optional with the party of whom the condition is required whether he will perform it, or decline it, and continue the litigation."
The plaintiff in that case recovered before a magistrate a judgment for $75.00; this judgment was affirmed by the Circuit Court, but on appeal the Supreme Court modified the judgment of the Circuit Court, allowing it only for $28.50. It was held that the defendant was the prevailing party and entitled to have the costs of appeal taxed in his favor.
The same distinction was drawn in Brown v. Kolb, 95 S.C. 217, 78 S.E., 894, which was an action for claim and delivery, wherein the jury rendered a verdict for the property in dispute, or its value, $100.00. On appeal the Supreme Court refused to order a new trial but reduced the amount of the judgment from $100.00 to $77.55. The Clerk taxed the costs in favor of the plaintiff-respondent, but the Supreme Court reversed this, holding that the defendant-appellant was entitled to his costs on the ground that the judgment was more favorable to him, to the extent of $22.45, and that under such circumstances the statute declares that the appellant should recover costs.
In Spence v. Southern Railway Co., 106 S.C. 169, 90 S.E., 750, 751, the Supreme Court said: "In Brown v. Kolb, the judgment of the Circuit Court was modified by a reduction of the amount thereof. It was not affirmed on condition, as was the judgment in this case. To be sure, the result is practically the same when a judgment is modified on appeal as when it is affirmed upon a condition which is performed, except as to the right to tax the costs of appeal. But, as pointed out in the cases first cited herein, there is a material difference in the legal effect of the two forms of judgment. Where it is modified, this Court renders the final judgment, or directs how it shall be rendered, and ends the litigation. But where it affirms a judgment upon a condition, it is optional with the party of whom the condition is required whether he will perform it, or decline it, and continue the litigation."
It is accordingly adjudged that the taxation made by the Clerk be and the same is hereby set aside and that the costs of the defendant-appellant, as stated, be allowed and judgment awarded in favor of the defendant-appellant against the plaintiff-respondent for the amount of such costs, the aggregate being $425.13, and that judgment be entered accordingly.
Mr. J. Robt. Martin, for appellant, cites: Reversal as to punitive damages alone would not carry cost: 117 S.C. 1; 27 S.C. 19; 113 S.C. 101; 1 Rich. Law, 4; 27 S.C. 15; 40 S.C. 445; 42 S.C. 522; 61 S.C. 75. Cost purely statutory: 40 S.C. 445; 61 S.C. 75; 42 S.C. 522; 41 S.C. 208. Reversal in toto essential to carry cost: 41 S.C. 208; 44 S.C. 377; 79 S.C. 388; 106 S.C. 169; 114 S.C. 196; 95 S.C. 217.
Messrs. Haynsworth Haynsworth, for respondent, cite: As to taxation of costs: 105 S.C. 125; 93 S.C. 562; 101 S.C. 159; 79 S.C. 388; 108 S.C. 429; 16 C.J., 249.
July 14, 1933. The opinion of the Court was delivered by
As a statement of this case this Court adopts, in the main, the agreed statement of counsel, as set forth in the transcript of record:
"This appeal involves taxation of Supreme Court costs in Gathings v. Great Atlantic Pacific Tea Company, decision filed February 6, 1933, 168 S.C. 385, 167 S.E., 652.
"The opinion of the Supreme Court was from appeal of judgment on verdict of $2,400.00, entered and filed February 23, 1933, Judgment Roll E-2737, Greenville County.
"Upon filing of remittitur from Supreme Court, February 18, 1933, plaintiff on February 21, 1933, served notice upon attorneys for defendant agreeing to allow costs as follows:
"`Please take notice, that we stand ready to comply with decision of the Supreme Court in above case in deducting from judgment in compliance with Supreme Court order the items of printing evidence of all witnesses except W.M. Gathings, L.G. Langley, J.R. Gray, and J.L. Creed, and all Exhibits.
"`We take the position that the cost of printing the above items should be deducted from the total judgment, interest, and other costs.
"`The Order of the Supreme Court is as follows:
"`It is ordered that the respondent be required to pay for the printing of all exhibits and the testimony of all the witnesses except that of W.M. Gathings, L.G. Langley, J.R. Gray, and J.L. Creed.'
"The Supreme Court, in conclusion of opinion, 168 S.C. 385, 167 S.E., 652, 656, used this language:
"`It is ordered that the respondent be required to pay for the printing of all exhibits and the testimony of all the witnesses except that of W.M. Gathings, L.G. Langley, J.R. Gray, and J.L. Creed.
"`As to the main appeal, the judgment of the Circuit Court is affirmed as to actual damages, and reversed as to punitive damages.'
"Thereafter on February 22, 1933, the plaintiff and defendant each served on opposing attorney's notice of taxation of costs before Clerk of Court T.E. Christenberry, as follows:
"Defendant's proposed taxation of costs: `Case and Exceptions, $10.00; John I. Gilbert, Stenographer, Transcript of Testimony, $83.20; Argument in Supreme Court, $25.00; Printing Case, $248.18; Printing Argument, $37.50; Printing Reply Argument $15.00; Disbursements: Mailing case, argument and reply argument, .75; Clerk Supreme Court, $4.50; Clerk Court of Common Pleas, filing case and exceptions, $1.00. Total, $425.13.'
"Plaintiff's proposed taxation of costs: `Argument in Supreme Court, $25.00; Printing Argument, $24.50. Total, $49.50.'
"After hearing argument the Clerk of Court, on March 11, 1933, passed the following order:
"`It is conceded that respondent on 21st day of February, 1933, served notice on defendant agreeing to pay cost as directed by opinion of Supreme Court.
"`The appellant mainly relied upon the case of Galloway v. Western Union Telegraph Company, 105 S.C. 125, 89 S.E., 638. The respondent contended that such case did not form a precedent, having been decided on first appeal by a divided Court under authority of Moseley v. American National Insurance Company, 167 S.C. 112, 166 S.E., 94. It is further contended by respondent that such case is differentiated from the present case by reason of reversal in that case on the ground that there was no evidence to sustain finding of punitive damages.
"`A further differentiation from the present case is that one-half of the verdict was completely eliminated, whereas in this case only a small portion was reversed, and that not with directions under Rule 27.
"`Respondent further contends that the Supreme Court in making specific directions and orders of respondent's payment of certain costs necessarily precluded the payment of other cost.
"`With this contention and with the further contention of respondent that there was a substantial affirmance of the judgment, the cost of respondent is allowed and the cost of appellant is disallowed with the exception that appellant from total cost be allowed a reduction of $129.08 cost of printing evidence of all witnesses, except that of W.M. Gathings, L.G. Langley, J.R. Grey, and J.L. Creed, and Exhibits, and it is so ordered.'"
On appeal from the order of the said Clerk of Court for Greenville County to the Court of Common Pleas of said county, his Honor, Judge S.W.G. Shipp, who heard the said appeal, upon due consideration, reversed the holding and order of the said Clerk and directed that judgment be entered in favor of the defendant for costs in the sum of $425.13, the amount of costs proposed by the defendant.
The case now comes before this Court on appeal from the said order of his Honor, Judge Shipp. We are satisfied that Judge Shipp reached the proper conclusion in the case, and for the reasons stated by his Honor in his said order the judgment of the lower Court is hereby affirmed.
MR. CHIEF JUSTICE BLEASE and MESSRS. JUSTICES STABLER and BONHAM concur.