The Horry herald. (Conway, S.C.) 1886-1923, May 10, 1923, Page Page No. 5, Image 5
w. l. mishoe
loses surr
Five Hundred Dollars Won in
Lower Court Now Reversed
COURT, HOWEVER, DIVIDED
Case Was Long and Carefully
Considered by Supreme
Court
Last week the opinion of the Supreme
Court in the case qf Walter L.
i Mishoe was filed here in the clerk's ofAjfice.
By the decision, Mr. Mishoe loses
the verdict of $500.00 which he won
by the verdict of a jury in the court
of common pleas here before Judge
Memmenger. The case came to trial j
here early in 1922. The railroad com"Hlv
"
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on two young legs!" S. S. S. makes
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n.nt, I* ??- ?
n aj it uunua up luuir BU VIIKUI. XJy
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C.
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t\ %
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this
, ? Th
: ma
wel
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ing
but
V&iV
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V I mo
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pany appealed. The case was argued
before the Supreme Court at the Octo-i
ber term last fall. The Supreme Court
gave the case longer consideration
than usual aria did not come out with
the . opinion until after about six
| months had passed by.
| Mishoe lost by the opinion of three
I of the five justices of the court as
(written by Associate Justice Fraser.
| Two of them wrote a dissenting opiui
ion. Both opinions follow.
{ Opinion by T. B. Fraser, A. J.
The plaintiff was notified by a telegram
that his child was sick at home.
The plaintiff was in Columbia in attendance
upon the Legislature, and his
child was sick at his home in Conway.
In order to go from Columbia to Conway
by rail it is necessary to go to
Chadbourn in North Carolina and
change cars for Conway. When the
train got to Florence, it w.as two hours
late and the plaintiff was uneasy
about making connection at Chadbourn
and made inquiry at Florence.
He could learn nothing in Florence
about the matter. After leaving FlorI
enCG. thp nlflintiff Qnr>n?ln^ - ?
, r tu bllC CUH"
doctor to find out for him if the train
would be held at Chadbourn. The
plaintiff says that at Marion he was
informed that the train to Conway had
left Chadbourn atid he would have to
wait at Chadbourn for a later train
and be delayed several hours. That the
conductor told him that if he was
obliged to be at home^within a reasonable
time it would be well to get off
of the train and go across from Marion
to Conway by automobile. The
plaintiff got off of the train at Marion
;>nd engaged an automobile to take
him across to Conway. The automobile
broke down on the way. The day was
exceeding cold and the roads were in
a bad condition. The driver of the automobile
refused to go any further. >
The plaintiff succeeded in getting another
automobile. Automobile No. 2
broke down and the plaintiff procured
a third automobile to finish the jourrey.
The plaintiff spent hours on the
l.'w.j-l ?-1 -t-f' 1 '< ? * *
lurtu uiiu tsuueieii wun tne coki and
was made sick by the exposure. He did
not arrive at home until eight o'ciock
at night. It seems that while the train
between Chadbourn and Comvay did
leave the station at Chadbourn, as reported.
the engine was delayed in the
yard just after it started and it took
so long to fix it, that after it was fixed
it waited for the train which the plaintiff
had left at Marion, and enabled
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IVE-EIGHTHS of the worl
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is figure is steadily grow
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ANDARD OIL CON
* ' m >
t
>
THE HORRY HERALD, CONW,
the other passengers for Comvav to
reach Conway at three o'clock, or five
hours ahead of the plaintiff. This action
is thought for the sickness of the
plaintiff, produced by his exposure between
Marion and Conway. The jury
found for the plaintiff and the defendant
appealed.
1. The first assignment of error that
needs consideration is the charge of
his Honor the Presiding; Judge. The
charge reads in part:
"Mr. Foreman, and gentlemen cf
the jury: In the trial of this case in
which Walter L. Mishoe seeks damages
from the Atlantic Coast Line
Railroad Company, the Court finds it-<
self surrounded by a mass of technical
law which it has to pass upon; because
in a case like this, where the journey
is through another state, we are called
upon and required to apply certain,
princiules of the law of the United
States, passed by Congress and construed
by Federal Judges; and therefore,
the burden is thrown upon a
State Judge, of not only being familar
with, and being able to explain to the j
jury the law of one state, but the laws |
of the United States, as construed and j
interpreted by the United States
Courts to the different departments of
the state governments. Nevertheless,
the courts have * to pass upon these
matters and to do the best it can md j
try to lay the law before the jury."
"The first idea to get into yourj
mind, gentlemen, is that Mr. Mishoe is
coming in here and claiming damages,
both actual and punitive, against the
Atlantic Coast Line Railroad Company,
based upon certain charges
which, he alleges to have been negligent
conduct on the part of the railroad
compariy, and that, as a proximate
result of there alleged negligent
acts, or any one of them, he was injured.
And furthermore, on the basis
| that the charger made against the roil
road ci mpany were not only negligent,
but wilful, wanton and reckless, therefore,
he claims authorities or parties
in charge of the railroad, acquiesced
in the conduct of that official subsequently,
and of such acquiescence you
c i judge from the testimony,
.1 11 -?? ?
Avnexner mougn the wrong conduct
was Mot done uy the official in control
of the system yet that there was ratification
after it had been done."
1. The jury might infer from this
statement that the railroads and Congress
are in collusion to protect the
railroad from the consequences of
their unlawful invasions of the rights
of the travelling public. The statement
i? not oniy unlawful but highly prejudicial
to the appellant. Generally, a
Judge charges a jury off hand, as it
is called, and he does not say just
what he means, and it is doubtless
true that His Honor did not intend to
reflect upon Congress or the class to
which the defendant belonged, but
none the less it is true that it was calculated
to prejudice the defendant, at
least, in the estimation of the jury
and was reversible error,
2. T thirilc a verdict should have been
directed for the defendant. The defendant
undertook to carry the plaintiff
lay rail safely from Columbia to
Conway, so far as human care and
prudence could provide. The plaintiff
knowing* the climatic conditions as
well ,as the defendant's agents and servants
did, voluntarily left the train at
Marion and undertook to go across the
country to Conway. The defendant did
Ssrvt
aru
for capital
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emendous volume of the
sible to sell the products
re else in the world, anc
in of profit to provide foi
ather than an expense it
tPANY (New Jersey;
* ' i' t.t
s
AY, S, C. MAY 10, 1923
not produce the extreme <?old from
which the plaintiff suffered. It did not
own the highway on which the plaintiff
undertook to travel. The defendant
could not repair any defects therein.
No agent of the defendant selected
the automobiles or their drivers. The
whole injury complained of was incurred
on the trip from Marion to Conjway,
after the plaintiff had severed
his connection with the defendant, and
due to causes over which the defendant
had no control. A suitable automobile
and competent driver did enable
the nlaintiff to complete his journev,
which the other automobiles and their
drivers could not, or would not, complete.
No injury to the sick child was
alleged or proven, but the injuries
were due solely to the act of God, and
the inefficiency of the means selected
by the plaintiff. I see no ground upon
which a liability of the defendant can
be based. The plaintiff may have received
injury and yet the defendant
not be liable. The wrong must be the
proximate cause of the injury. The
I proximate cause here w.is fho
| condition of the highway, the automo1
biles and their driver.
| The judgment is REVERSED.
We concur: T. P. Cothran, A. J. In
part: J. H. Marion, A. J. (See below)
We dissent: Eugene B. Garv, C. .T.; R.
C. Watts, A. J.
I concur in the view that there was
reversible error in the charge as imputed
by appellant's first assignment
of error. I ,am not prepared to agree
that the verdict should have been directed
for defendant.?J. H. Marion,
A. J.
i Opinion Eugene B. Gary, C. J. (Dissent
in .)
This is an action for damages, alleged
to have been sustained bv the
plaintiff, through the wrongful acts of
the defendant.
The jury rendered a verdict in favor
of the plaintiff for five hundred dollars.
and the defendant appealed upon
exceptions which will be reported, together
with the complaint and answer.
First, Second and Third Exceptions:
The testimony as to the question.^of
fact mentioned in these exceptions,
was susceptible of more than one inference;
therefore, they were properly
submitted to the jury.
Fourth Kxcontion?
The grounds of the motion for a directed
verdict, were as follows:
1. "Because there is no testimony to
show th^t the delay of the train on
which the plaintiff was a passenger.
w.ts due to negligence of defendant."
2. "Because all the testimony shows
that the delay of the train on which
plaintiff was a passenger, was due to
waiting on connections and not to negligence."
3. "Because it appears from all testimony
that the information furnished
the plaintiff by the conductor ,ms to the
probability of missing the Conwav
connection was furnished in good faith
in the exercise of his best judgment
based upon the conditions existing at
the time, and because defendant
should not be held liable because, due
to subsequent occurrences, conditions
were changed to such an extent that
the connection was made."
4. "Because it appears that the injury
suffered by plaintiff, if any, was
due not to negligence of the defendant,
but to an intervening cause towit:
plaintiff's own act in attempting
ce?a /ways
d all ways ?
n
H
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j
Hi
H
I
fc i B !
I
to drive through the country on a bitterly
cold day instead of going to his I
destination by rail."
It' the plaintiff had relied, alone, on
the alleged negligence of the defendant
in causing him to drive through
the country on a bitterly coid day, as
alleged in paragraph 7 of the complaint,
and had failed to prove such allegations,
a motion for the direction of
a verdict would have been proper. But
there are other acts of negligence, alleged
in the complaint which if sus
* ? - i!il - 1
I vet ticVI uy vue (.V>lllliuiiy, entitled 1110
J plaintiff to damages. j
Fifth, Seventh, Twelfth and
Thirteenth Exceptions:
On hearing the motion to s^tt'e the
case, his Honor the Circuit .Twice thus
explained the spirit in which he used
the language assigned .is error:
*'Practicallv a'l of defendant's exceptions
seem predicated on assumed prejudice.
on the part of the Court to the
defendant. This the court pocj-ivelv
and emphatically denies. - - - Certainly,
the weariness of these trial? rr/iv
be sometimes lighted, by a little 'badinage'
and 'persiflage' and excuses put
forth for a necessarily" prosy charge;
and some explanation given the jury
for why the charge must he halting."
It is incumbent on the appellant not
only to satisfv this Court, that there
was error, but also, that it was prejudicial
to tNe rights of the appoint
The defendant's attornevs have failed
to satisfy us of such fact.
Eighth, Ninth. Tenth and Eleventh
Exceptions:
Rule 5 Section of the Supreme
Court, contains the following provision:
"Each exception must contain
within itself a complete assignment of
error, and a mere reference therein to
nv other exception the*": or previously
taken, or request to charge will not be
considered." There was a failure to
comply with the rccjuirments of said '
Rule, and there exceptions will not be
considered.
(There is an appendix to the record
herein, which contains a copy of the
order of His honor the presiding
Judge sett'ing the case together witV
the defendant's notice of appeal therefrom
and exceptions. They, however
will not he considered, as they were
not argued.)
I concur: R. C. Watts, A. .T.
SMITH GIVES
FINAL ANSWER
To the Editor of The Herald:?
As Mr. Prince has seen fit to make
a vindictive onslaught upon my character,
my motives and my official reoord
as published in the Herald of the
2nd inst., you will please allow me
space for a short reply.
Mr. Prince says he "has too much
respect for my grey hairs to differ
with me in a personal way. If some
misfortune was to befall the aged
Senator, I would he glad to render him
such assistance as I was able."
Now, Mr. Editor, 1 trust that every
reader ot' this reply to Mr. Prince will
refer to his tirade upon me as publish-'
ed in your paper of the 2nd inst. and
determine for himself who is doing the
nagging, and judge for himself whether
his article expresses the true sentiment
of his pretended friendship or t
that of a disappointed politician. In all
our correspondence in the press 1 have
not written one word except in reply ,
to his vindictive onslaughts. lint I piesume
the public will he more interested
to learn upon what matters of public
interest we fail \o agree.
One was when I sent a Bill to the
House providing for reducing the road
computation tax t.? three dollars instead
of six dollars. Mi. Prince s;nv fit*
to kill this measure. Then 1 had his
Bridge Bond BiH !?iid on the taole in
Ij^e Senate- b>ih of which treasures
have been fully discussed.
Then when he promised in tho Supply
Bill to raise *he salary of the Magistrate
in Simpson Creek Township, I
used my influence in the Conference
Committee against it, and the Com- i
mittee accordingly killed it. Again,
when he sent a House Bill to the Sen- j
ate proposing to create Eleven Town- |
ship Commissioners, with salaries of
one hundred dollars each, I had the
same likewise laid to rest. j
Furthermore, when his measure for j
extra pay as a member of the Legisla- }
ture was up for consideration, he nev- |
er dared to say that he voted against ,
it, but on the contrary boldly says that j
"heaven knows that we ought to have
it." In this position we widely disagree.
He further says that the Senate
stands for high taxes and the House i
IF SICK, Bn
START Y
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Uffh! Calomel tnakea you sick. It'a I
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Calomel is mercury or quicksilver <
which causes necrosis of tne bones. i
Calomel, when it comes into contact i
with sour bile crashes into it, break- ;
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Page No. 5
SHOULD PLANT
SOME PEANUTS
Ciemson College.?The peanut is
one of the logical money crops for the
section of the state having lo.am soil.
Under boH weevil conditions, the
planting of three to four acres of pennuts
per plow will prove to be a most
acceptable source of a small but safe
profit, say the agronomists, who suggest
below methods of planting and>
fertilizing.
Well drained, level fields having a
sandy loam soil with a permeable clay
subsoil, free from stumps, roots and
rocks should be selected for peanuts.
These fields permit the use of light
harrows and weeders which must be
used in order to give the peanuts the
frequent and light cultivation they
need. Thorough plowing and harrow
ing or the soil before planting will
save much labor in cultivating. Plowing
several weeks before planting is
preferable, as this allows tlie soil to
settle so that a firm seed bed may be
obtained. Thorough harrowing with a
drag* harrow immediately before
planting will destroy all grass and
should he two and one-half feet apart
and the beds should be as nearly level
as is practical under local conditions.
All fertilizer for peanuts should be
applied in the drill iimmediately tiefore
planting and well mixed with the
soil. The amount and kind of fertilizer
to he used will vary somewhat vith
the type of soil and its previous treatment.
For the type of soil generally
planted in peanuts, a sandy lo.nm lowin
fertilifv. about 400 nounds of an 83-3
fertilizer will usually prove profitable.
Where the soil has heen Improv^
ed by turning under a leguminous
crop the nitrogen of the fertilizer may
be lessened ov onvtted entirely. Too
?^uch nitrogen te-uls to produce more
vine and loss nuts.
Whptbei or not lime is nece^s^ry
f *i the 5'!cce^s dencvi.t* unon the acidity
of the soil. This can he most definitely
determined by actual comparison
of the yields from lifted and unlinied
parts of the field. Where a rotation
that contains leguminous crops
for soil building is used, it is good
agricultural practice to apply lime at
some tUne in this rotation. Peanuts
should be grown in such a rotation
and they will be benefited by the lime
used. Careful tests indicate that gypsum
or landplaster gives no beneficial
effect on peanuts where it hMs been
the practice to fertilize with acid
phosphate.
rs
The Herald has missed several big
advertisements recently because they
were delivered through the mail too
late to get in the issue of the Herald
for which schedu'ed.
for low taxes, thus trying 4"> leave t^e
impression on the poinds of the read-'
ers that I stand for hijrh taxes.
Perhaps ho may he able to satisfy a
fool that the House can make a law
without a majority of the Senate concuring,
hut how he can claim to stand
for economy in the face of his record
in promoting- these measures .nhove
mentioned, and all of which I had killed,
is beyond my comprehension.
But if f am a coward as hp claims
and a fool that can be lead about by
my enemies "with a ring in my nose"
as he says, I will only remind the distinguished
staesman, though I be a
coward and a fool, he must admit that
our records show that I have neither
been driven or lead by men of his calibre.
Neither will 1 further discuss any
personal matters with him. I will only
discuss matters of public interest to
our people, and that mint be personal
and not through the public presr.
llespect fully,
Jeremiah Smith.
o
NOTICE
NOTICE IS HEREBY GIVEN that
n meeting of the Stockholders of
Standard Cotton Warehouse Company,
a Corporation organized under
the laws of the State of South Carolina,
will he held at the oflice of J. T
Allen, Jr., Attorney, Loris, S. C., a*
10 o'clock A. M., May 19th, 1923, fo.
the purpose of passing upon Resolutions
to go into liquidation and wind
.ip its afTairs and dissolve and attend
o and act upon such other matters as
riay properly come before the meetng.
DAN W. HARDWICK,
N. E. HARDWICK,
Board of Directors.
!jl9|23-td.
JOUS! .
OUR LIVER
's Liver Tone" Acts Better and
Make You Sick?Don't
?Read Guarantee
t>r stomach sour, just try ? spoonful
of harm leas Dodson's Liv?r T<*rw? tn.
night*
Here's my guarantee?Go to any
drug store and get a bottle of Dodson's
Liver Tone for a few cents. Take
it spoonful and if it doesn't straighten
you right up and make you feel fine
ind vigorous I want you to go back
to the store and get your money.
Dodson's Liver Tone is destroying the
tale of calomel hccautte it is real liver
nedicinc; entirely vegetable, therefore
t cau not salivate or make you nick.