Reply Brief — Bath Mills, Inc. v. Odom

INDEX TO REPLY BRIEF

An important Question of Local Law is undoubtedly

ESSERE EGLO MR nig WE ee

Is the decision below, contrary to the local decisions?.

Four other decisions cited by respondent...........

The effect of counsels stipulation and argument.....

TasBLE oF CasEs

Anderson v. Railway, 179 S. C. 367; 184 S. BE. 164. ...

Bailey v. Smith, 132 8S. C. 212; 128 S. BE. 423........

Baaley v. Railroad, 193 S. C. 429; 8 (2d) S. E. 744. ...

Bell v. Railroad, 202 S. C. 160; 24S. E. (2d) 177.....

Bennett v. Union Station Co., 90 S. C. 308; 73 S. E.

a EARS RIENSS S a MRmerar ay AIC NL WC ee

Boyd v. Railroad, 65 S .C. 326; 43S. E.817..........

Burns v. Kendal, 96 8. C. 385; 80S. E.621..........

Caughman v. Y. M. C. A. (Westbrooks Rps. of May

et ss corre ows ee

Cook v. Railroad, 183 S. C. 279; 190 S. E.923........

Cox v. Cole, 189 S. C. 218; 200 S. E. 762.............

Hallman v. Cushman, 196 S. C. 402; 135 S. E. (2d)

ER EES eee CM Hees Ne. ek i oN

Leaphard v. Railroad, 174 S. C. 237; 177 S. E. 129...

Nuckolls v. Tea Company, 192 S. C. 156; 5 S. BE.

ah iN ocd « bats pea eC Te Os os ee

Oliver v. Railroad, 65 S. C.1;43S.E.307..........

Pickens v. Railroad, 54 8. C. 498; 32S. B.567........

Sanders v. Railroad, 180 S. C. 138; 185 8. EB. 180... ..

Sample v. Gulf Refining Co., 183 S. C. 399; 191 S. E.

209

Text Boox Crrep

Schneider’s ‘‘Workmen’s Compensation Law’’

—7616

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SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1948

No. 113

BATH MILLS, INC., Petitioner and Appellant

vs.

THEODORE ODOM, Appellee and Respondent

REPLY BRIEF

We ask to reply to Respondent’s Brief as follows:

An Important Question of Local Law Is Undoubtedly

Involved Herein

Respondent’s counsel see fit in their brief to resort to a

highly technical objection, namely, that under Sec. 1 of Rule

12, Appellant, as they state it at p. 18 of their brief, ‘‘has

failed to show and prove the basis upon which it is con-

tended that the Court has jurisdiction.’’ The reference is

to whether an important question is involved herein.

To begin with Rule 12, Sec. 1, has to do with appeals alone,

not petitions for writs of ceritorari. Rule 38 governs peti-

tions for writs of certiorari. That rule is complied with, we

submit, by the respondent herein. See p. 5 of petition and

pp. 11, 12, 13 of respondent’s supporting brief.

—

The fact that in reality the question involved is an im-

portant one stands out throughout the petition and sup-

porting brief and the whole case is redolent of that fact,

for the following reasons and others,—

2

(1) At common law employers have the right to defend

on the ground not only of contributory negligence but of

contributory recklessness and wantonness. If the South

Carolina Workmen’s Compensation Act has been improp-

erly construed and enforced by the Circuit Court of Appeals

herein, in view of the decisions of the South Carolina Su-

preme Court, then the employer herein is being deprived

of Five Thousand Dollars without due process of law.

(This observation also constitutes our reply to Respond-

ent’s point B.)

(2) Respondent does not and cannot deny that there are

many employers in South Carolina who have exercised

their right not to operate under its entirely optional Work-

men’s Compensation Law. The decisions of the Supreme

Court of South Carolina cited and quoted from, in appel-

lant’s supporting argument (p. 23-25) of Nuckolls Tea

Co. 192 S. C., 156; 5 S. EB. (2nd) 862 and Caughman vy.

¥. M.C. A., Westbrooks Reports of May 15, 1948, definitely

prove this fact. Hence, it follows that to many employers

and thousands of employees in South Carolina a decision

of the point involved, to govern existing and future law-

suits, is vastly important.

(3) While a complete list of states in which optional

Workmen’s Compensation Statutes are in force is not

available to us, the notes to the treatment of the subject

of the optional statutes, in Schneider’s work on ‘Work.

men’s Compensation Law”’ (p. 63 et seq.) definitely shows

that there are many such states, and this work at p. 104,

states that ‘‘many of the acts which are elective”’ deprive

eS

3

the defendant: of the defense of contributory negligence.

The author in his footnote supporting this statement, lists

decisions from twelve states. Hence, thousands of em-

ployers and myriads of employees not only in South Caro-

lina, but throughout the nation are concerned with the ques-

tion herein presented. It is a matter of prime importance,

we submit.

Is the Decision Below, Contrary to the Local Decisions?

Despite the imposing array of decisions by the Supreme

Court of South Carolina which are set out in appellant’s

brief to the effect that recklessness, wilfulness and wan-

tonness and contributory recklessness, wilfulness and wan-

tonness on the one hand, are separate and distinct legal doc-

trines and principles from mere negligence and contribu-

tory negligence on the other hand, the second postulate of

Respondent’s argument is that in reality recklessness, wil-

fulness and wantonness are mere degrees of negligence.

This position is taken with no reference to and indeed with

a complete and studied disregard (because it cannot be

answered) of the fact that the Supreme Court of South

Carolina in Pickens v. Railroad 54 8. C. 498; 32 S. E. 567,

has ruled ‘‘Negligence and wilfulness are the opposites of

each other.’’

Respondent’s argument is based practically solely upon

the opinion written by a temporary occupant of a seat on the

bench of the Supreme Court of South Carolina (Mr. Harry

N. Edmunds) which has never been followed by other deci-

sions and which, if it supports respondent’s position (which

fact, we deny), is in the teeth of myriads of the decisions

rendered both before and after his decision. Further, it

is a fact that Respondent’s contention is based on two dis-

connected excerpts from the acting Associate Justice’s

—

opinion which definitely, we submit, do not correctly set

out even his meaning.

We do not imagine that the Supreme Court of the United

States is, at this time, interested in dissecting this passing

opinion but inasmuch as respondent’s entire argument is

practically based upon it, we are, at the risk of prolixity,

setting out in an appendix hereto, the whole of the opinion

touching the point at issue with some comments by us, for

the convenience of the Court, should it desire seriously to

consider the opinion in question.

Including those decisions of the Supreme Court of South

Carolina from which quotations appear in the opinion, in

re Bailey v. Smith 132 8. C. 212, 128, S. E. 423 from which

we quoted copiously in our supporting brief, we have here-

tofore presented fifteen decisions of the Supreme Court of

South Carolina supporting our contention of what that

court has held. Respondent’s reliance is practically based

solely on the Thornhill decision. Bailey v. Smith itself

which collected practically all of the older decisions and

approved them, and four of the other decisions set out

in our supporting brief were handed down after the Thorn-

hill case was decided. All definitely support our contention.

We thought this was enough, but so frequent have been

the decisions of the Supreme Court of South Carolina upon

that question that we can easily lengthen the list. All of the

following additional decisions, in one form or another, sup-

port our contention to the effect that negligence and con-

tributory negligence on the one hand are, in South Carolina,

different principles from recklessness and wilfulness and

contributory recklessness and contributory wilfulness on

the other hand. Those decisions now listed as reported in

volumes subsequent to 121st South Carolina Reports in

which the Thornhill case is reported, were rendered after

that decision was handed down. It, therefore, follows that

4

" gpaamammenarsses

5

Thornhill decision did not change in the slightest degree

the long existing rule which still exists in South Carolina.

We list:

Watts v. Rwy., 60 S. C. 67; 38 S. E. 240;

Oliver v. Rwy., 65 8. C. 1; 43 8. E. 307;

Boyd v. Rwy., 65 8. C. 326; 43 S. E. 817;

Bennett v. Union Station Co., 90 8. C. 308; 73 S. E. 340;

Burns v. Kendal, 96 8. C. 385; 80 S. E. 621;

Wanamaker v. Traywick, 136 8. C. 21; 134 8S. E. 234;

Weeks v. Power Co., 156 8. C. 158; 153 S. E. 119;

Leppard v. Railway, 174 8. C. 237; 177 8. E. 129;

Anderson v. Railway, 179 8. C. 367; 184 S. E. 164;

Sanders v. Railway, 180 8. C. 138; 185 S. E. 180;

Cox v. Coleman, 189 S. C. 218; 200 S. E. 762.

The Supreme Court of South Carolina has steered a

straight course as to this question. In the Pickens decision

it ruled that ‘‘ Negligence and wilfulness are the opposites

of each other’’. In later decisions it elaborated on this prin-

ciple. It pointed out that while lack of due care is involved

in each instance, that inadvertence as to performing the

duty of exercising due care on the one hand and an ad-

vertent failure to do so on the other hand is the differentiat-

ing factor between negligence and gross negligence on the

one hand and recklessness, wilfulness and wantonness on

the cther hand. But when the lack of due care ceases to be

an unconscious failure of duty and becomes a conscious, an

advertent failure of duty, its whole nature changes. That

is the whole meaning of all of the decisions of the Supreme

Court of South Carolina.

The question is not, in reality, as Counsel and the learned

District Judge, who tried the case, considered it, we submit,

of degrees of negligence, but of the employee’s state of

mind. If he inadvertently failed to exercise due care he was

guilty of negligence, whether it was ordinary negligence or

See hee eer

- oa

6

gross negligence. On the other hand if he consciously, ad-

vertently failed to exercise due care, he was guilty of the

opposite of negligence, he was guilty of recklessness, wilful-

ness or wantonness. This is the crux of the matter.

We have advisedly stated that respondents counsel base

their argument practically entirely on the Thornhill de-

cision. This is an absolutely correct statement, we submit.

They, however, also mention but four other decisions, which,

we submit, are not apposite to the present inquiry and which

we ask now to briefly refer to.

Four Other Decisions Cited By Respondent

Counsel invoke the expression contained in the opinion

of the Supreme Court of South Carolina in Bell v. Railroad,

202 S. C. 160, 24S. E. (2d) 177, based on the decision of the

Court in Sample v. Gulf Refining Co., 183 S. C. 399, 191 S. E.

209, that:

‘While punitive damages are recoverable for negli-

gence so gross or reckless of consequences as to imply

or assume the nature of wantonness, wilfulness or reck-

lessness, yet they are not awarded in this State for

mere gross negligence.’’

It is significant to note that in the Sample case, there was

a reversal because the presiding Judge had charged the

jury that punitive damages could not be awarded, in a case

of injury to plaintiff’s business:

‘‘Unless the defendant was so grossly negligent in

determining whether it would injure or damage his

business. ’’

Manifestly what the Supreme Court, in granting a new

trial on account of the foregoing charge, was ruling in the

language relied on by counsel, was simply and only that

gross negligence was not enough to warrant imposing puni-

— aenet

tive damages. The Bell decision does not carry the matter

further.

What the language relied upon actually states is that in

order to permit the imposing of punitive damages the con-

duct in question must be so reckless of consequences as to

assume the nature of wilfulness. This is nothing more than

the statement of the Court (set out on page 9 of our argu-

ment in chief) in the Tinsley decision that:

‘‘ An inadvertent failure to observe due care indicates

mere negligence, but an advertent failure to observe

due care passes beyond mere negligence into wanton-

ness or wilfulness.’’

Nor is the language of the Sample decision anything more

than the doctrine of the Proctor decision (also set out on

page 9), that:

‘“‘It is quite true that negligence may be so gross as to

amount to recklessness, but when it does it ceases to be

mere negligence, and assumes * * * the nature of

wilfulness.’’

This we again submit is the crux of the matter. It ceases

to be negligence entirely.

Respondents counsel at pp. 8-9 of their brief refer to

Templeton v. Railroad, 117 S. C. 44; 108 S. E. 313 which is

entirely inapplicable to the present inquiry, we submit, in

that it only holds that under the Federal Employers Lia-

bility Act gross negligence is not a separate principle from

negligence. The principle of recklessness and wilfulness

was not even remotely involved.

Respondents counsel also cite Bazley v. Railroad, 193

S. C. 429; 8 (2d) S. E. 744 and Cook v. Railroad, 183 S. C.

279; 190 S. E. 923 at pp. 10-11 of their brief. In reply we

wish to point out that the Baxley decision has no application

to the instant case, as that case was brought under the

8

railroad crossing statute which makes gross negligence a

perfect defense to the recovery of any damages, in a cross.

ing accident case such as the Baxley case. And the Cook

decision is not apposite to the instant case, because its hold-

ing is simply a restatement of the doctrine enunciated long

ago in South Carolina that punitive damages cannot be

awarded unless plaintiff has suffered some actual damage,

although it may be merely nominal. Further as to so much

of the Cook decision which counsel claims ‘‘held that ex-

emplary damages which must be based upon recklessness or

wantonness ‘do not and cannot exist as an independent

cause of action’ ’’; we ask to cite the subsequent decision

of the Supreme Court of South Carolina in re Hallman v.

Cushman, 196 S. C. 402, 135 S. E. (2d) 498, in which the

Supreme Court of South Carolina said:

‘It is true that a cause of action for punitive damages

and a cause of action for actual damages are logically

and technically separate and distinct, although they

may be pleaded together under the statute frequently

termed the ‘jumbling act.’ Sode 1932, see 484,”

The Effect of Counsels Stipulation and Agreement

Under the heading ‘‘The Circuit Court of Appeals did

not depart from the accepted and usual course of judicial

proceedings so as to call for an exercise of this Court’s

power of supervision,’’ respondents say that they are at a

loss to understand our position on this point. Hence, we

briefly restate it.

The solemn stipulation of counsel herein (R. 26-8) after

reciting that the District Judge struck out the defense of

contributory recklessness and contributory wilfulness, defi-

nitely stated:

‘“*The case then went to trial and was tried through-

out, subject to and in accordance with the aforesaid

ruling of the Court, and upon the theory and basis and

9

with the effect of the defendant not being permitted to

defend the suit on the grounds of contributory negli-

gence, recklessness and wantonness.’’ (Emphasis

added.)

The Circuit Court of Appeals without referring at all to

this stipulation which governed the case, said that as the

evidence had not been brought up that it could not be sure

that the defendant was prejudiced by its defense having

been stricken out. The Court added that it was ‘‘perfectly

clear from the pleadings and statements at the bar of the

Court that the facts upon which defendant relied amounted

to nothing more than contributory negligence.’’ But the

Court, in effect, immediately revealed the fact that it did

not rely on that point. Manifestly the answer positively

alleged (R. p. 26) contributory recklessness and contribu-

tory wantonness; and certainly, the Court’s treatment of

the matter shows that no ‘‘statements at the bar’’ admitted

or substantiated the contrary view. Otherwise the Court

would have disclosed the statements, (as we wish it had)

and would have taken positive action then and there. But

the Court did not do this, but passed this phase of the mat-

ter over as being unconsequential, as it was, and immedi-

ately went on to state that if it ‘entertained any doubt as

to the correctness of the Court’s action in striking the de-

fense, we would order the remainder of the record sent up,

so that we might judge upvn the whole case whether de-

fendant had suffered prejudice as a result of the ruling.’’

But the Court did not order the record sent up, and the Court

in the next sentence made clear, we submit, that it was not

depending upon or basing its decision at all on its previous

statement by definitely stating:

“It is not necessary to do this, however, as we are

satisfied that the action of the Court in striking the

defense was proper.’’

10

Hence, our position and understanding of the matter is

that the Court did not base its decision on the consideration

referred to, but based it definitely on the clear-cut legal

question involved. But we submit that if we are wrong in

this understanding and if the decision of the Court is not

to be considered as being grounded on that clear-cut legal

question, then with the greatest respect possible, we submit

that the Court to use the words of Rule 38 ‘‘so far departed

from the accepted and usual course of judicial proceedings

* * * as to call for an exercise of this court’s power of

supervision.’’ We do not consider however that such a

situation exists, but that we have to deal only with the

clear-cut legal question.

Finally we wish to reiterate what we stated in our sup-

porting brief, namely, that as the stipulation and argument

of counsel states, the case was tried throughout, subject to

and in accordance with the ruling of the Court. We stated

at pp. 30-31 of our supporting brief as follows:

‘*Hence the defense was never before the jury. The

jury, therefore, knew absolutely nothing of its ex-

istence. It was a hushed and forbidden subject in the

trial. Even if incidentally some facts came out on

which it might have been based, they could not be

pointed up, stressed and connected up by counsel. The

subject, we repeat was a forbidden subject. Sending

up the record now as the Court suggests would do no

good, because the record was not built with the question

involved as a part of it. The question was, we repeat,

a completely forbidden subject. The District Judge

could not and did not rule on the sufficiency of the testi-

mony because, as we have stated, counsel for the de-

fendant was not permitted by the Court to build up

a record to present that question but was reprimanded

when the Court thought he was trying to do so. Coun-

sel for the plaintiff having already been successful in

striking the defense from the answer, was not interested

in the point. Then, of course, counsel could not even

ll

mention contributory recklessness, wantonness, or wil-

fulness in argument, nor did the District Judge do so

in his charge. So the stipulation was literally correct.’’

The correctness of this contention has in no means been

questioned in respondent’s brief.

We earnestly submit that the Writ of Certiorari should

be granted.

Note—It has been called to our attention that the Circuit

Court of Appeals in its decision inadvertently stated that

the appellant is a corporation of the State of South Caro-

lina. This is of course a mere inadvertence. The complaint

shows to the contrary and the stipulation of counsel recites

the regular removal of the case to the United States Court,

and there was no motion to remand.

Respectfully submitted, -—

P. F, Henperson,

Henverson & Sauey,

Appellant’s Counsel.

Aiken, S. C.

July 27, 1948.

12

APPENDIX

Note—In this appendix for the purpose of making refer.

ences thereto, we have numbered the eight quoted para-

graphs and have added some emphasis.

Thornhill vs. Davis, 121 8. C. 49; 113 S. E. 370.

‘“The opinion of the Court was delivered by Acting Asso.

ciate Justice H. N. Edmunds.’’

(After a short preliminary statement as to the complaint,

the opinion reads:)

(1) ‘‘The answer, in addition to denying the allega-

tions of the complaint setting forth the alleged delicts

on the part of the defendant, sets up the defenses of

contributory negligence and assumption of risk. The

issue thus being joined, the action came on for trial

before Hon. George E. Prince and a jury at the April

term, 1921, of the Court of Common Pleas for Green-

ville County.

(2) ‘*Motions were made by the defendant for a

nonsuit, and for a direction of verdict, both of which

were overruled. Subsequently a verdict was rendered

by the jury in favor of the plaintiff in the form which

will hereinafter be referred to more particularly in

considering the exceptions relating to the form of the

verdict.

(3) ‘‘The plea of contributory negligence on the part

of the plaintiff’s intestate, and the testimony relating

thereto, form the basis of one of the principle excep-

tions made by appellant. We will accordingly take up

the consideration of this matter first.

(4) ‘‘Contributory negligence as a defense is appli-

cable to an action under the Federal statute to the ex-

tent, but to the extent only, of operating to minimize

the damages in case the jury should find that the in-

jured party was guilty of contributory negligence in

the particulars alleged in the answer. The appellant

contends that this rule does not apply in the present

13

ease, for the reason that the testimony established,

not merely contributory negligence on the part of the

plaintiff’s intestate, but established contributory reck-

lessness and willfulness. The answer with great particu-

larity alleges the facts constituting the defense of the

alleged contributing cause on the part of the deceased,

alleging that—

(5) ‘‘He had gone ‘to the end of said string of

ears for the purpose of seeking shade and sat upon the

rail at the end of the car; * * * that in this position

* * * theengine * * * coupledup * * * tothe

said car at the opposite end of said string of cars, the

impact of which caused the car against the wheel of

which the deceased was leaning to run over and kill

the deceased; and that the deceased was negligent of

his own safety.’

(6) ‘‘The assignments of error under the seventh,

eighth, thirteenth, and seventeenth assignments are

that the trial judge erred in overruling the motion for

a directed verdict upon the ground that the testimony

showed that the deceased met his death by his own

gross negligent and careless act, as was set up in the

defense referred to, and, further, that the frial Judge

erred in fatling to charge the jury that the plea of

‘contributory recklessness or willfulness’ was a com-

plete defense under the Federal Employers’ Liability

Act—that is to say, that while the defense of contribu-

tory negligence merely operates in mitigation of dam-

ages, on the other hand contributory recklessness or

willfulness operates as a bar to the action when estab-

lished by competent testimony.’

(7) ‘‘While it is not essential to our conclusion upon

the exceptions raised relating to this matter, it may be

remarked that Congress in limiting the force and effect

of contributory negligence in an action of this character

had in mind the changing of the application of the rule

of evidence in such cases. Instead of such evidence

operating to defeat the right of action entirely, after

14

the passage of the act, in cases brought under the act,

such evidence operates only to a reduction of the dam.

ages which the plaintiff would otherwise, in the absence

of such contributing cause, be entitled to receive

Under this rule of law, the matter of contributory

negligence and the degree thereof, if any, becomes one

for the jury to consider in determining the amount of

damages which should be awarded in case it should be

found that any damages were recoverable, The reduc.

tion in amount then would vary with the degree of

negligence operating as a contributing proximate cause

to the injury by the injured party—if slight, the jury

would be warranted in making a slight reduction in the

amount which it would have otherwise awarded; if

great, it would be warranted in making an entirely

different estimate of the amount to which the damages

should be reduced. The allegations of the degrees of

negligence and the proof thereof are matters then to be

considered by the jury in reaching its conclusion as to

the amount to be awarded after having concluded that

a case of liability has been established. In any event,

of course, it is essential that liability must be estab-

lished, and the necessity therefor eliminates recovery

when the injury complained of is caused solely by the

act of the one injured, whether it be done by him either

negligently or recklessly. There is left open, however,

in all cases where the evidence is conflicting, the deter

mining by jury of the amount of recovery and the

proper reduction thereof to be varied, as we have said,

according to the degree contributed by the injured

party to his injury.

(8) ‘‘Whether then there was error on the part of

the trial Judge in the particulars assigned depends

upon whether from the testimony it was to be concluded

as a matter of law that the deceased came to his death

solely on account of the acts alleged in the answer by

way of affirmative defense, or whether there was an

issue of fact with regard thereto to be submitted to the

jury. The appellant assumes that the defense was

15

established by uncontradicted testimony, and that the

only conclusion which could be drawn from the testi-

mony was that the plaintiff’s intestate, as stated in the

motion, met his death ‘solely by reason of his own gross

negligent and reckless conduct’ in the particulars set

forth in the motion. That the testimony was suscepti-

ble of an entirely different construction, that a clear

issue of fact was made, and that the issue on this point

was one to be passed upon by the jury is apparent from

the reading of the testimony. The jury could have

adopted appellant’s view, namely, that the plaintiff was

performing his duties as foreman of a maintenance

force clearing the tracks of the appellant, in which work ©

the plaintiff was actually engaged at the time when,

without warning and without observing the proper

precautions under the circumstances alleged, and as

testified to, the plaintiff’s intestate was run over and

killed by the train operated by the defendant. The trial

Judgé, however, with a conflict of testimony on the

issues thus joined, cowd not adopt either view—to have

done so would have been error—and his refusal to do so

was proper. The assignments of error relating to

these matters cannot, therefore, be sustained.’ ”’

Our comments are:

(1) The defense that was interposed by the Answer was

mere contributory negligence, not as respondent states (p. 6

of their argument) ‘‘the plea of contributory recklessness

or wilfulness as a complete defense under the Federal

Employer Act.’’

Not being pled contributory recklessness and wilfulness

was not before the Court in the Thornhill case. It is defi-

nitely pled in the Odom case.

(2) Evidently defendant’s attorney in arguing the ap-

peal, although he had failed to plead it, raised the point

that contributory recklessness or wilfulness might be a com-

plete defense. He, however, had not properly raised the

point. But the Acting Justice, nevertheless but saying

explicitly in the opening words of the seventh paragraph

of the foregoing quotation, ‘‘while it is not essential to our

16

conclusion upon the exceptions raised relating to this

ter,’’ stated as his personal opinion only that “‘the matter

of contributory negligence and the degree thereof, if any.

becomes one for the jury to consider in determining the

amount of damages.’’ Let it, however, be noted espeei ye.

that the Justice did not consider that the point had been.

raised by the exception. =

Then the Justice, having in passing and as a mere obiter —

on his part made the reference referred to (which he hed ©

prefaced by saying that it was ‘‘not essential,” upon the -

exceptions raised), in the final paragraph of the foregoing |

excerpt as his real conclusion of the matter, ruled that a

directed verdict could in no event have been rendered be.

cause the testimony was conflicting. , er

(3) In the sixth paragraph of the foregoing excerpt,

appears that the assignments of error were:

(a) Error ‘‘in overruling the motion for a directed ver

dict upon the ground that the deceased met his death by his

own gross negligent and careless act as was set up in the

defense referred to,’’ and a

(b) Error ‘‘in failing to charge the jury that the plea of —

contributory recklessness or wantonness was a complete _

defense.’’ 4

As to (a) we call attention again to the fact that the em

phasized statements in paragraphs (1) and (5) of the above _

excerpt show definitely that only ‘‘contributory negligence” —

in ‘‘that the deceased was negligent of his own safety’’ was —

pled. Hence, the question of contributory recklessness and ©

wilfulness was never properly presented to the Court.

As to (b) we make the same remark and add that as no —

request to charge was presented there could be no error in —

any event, not to so charge.

We respectfully submit that the Thornhill decision did —

not alter the firmly established South Carolina rule, which

was first enunciated in the Pickens decision in 1898 and |

which has been consistently followed to the present day.

(7616)