Syllabi.

THOMAS v. FOSTER, TREASURER.

(93 S. E. 397.)

[108 S. C.

LICENSES POOL HALL-STATUTE-CONSTITUTIONALITY.-Civ. Code 1912, sec. 3431, requiring every person operating any pool or billiard table outside of an incorporated city or town to pay an annual license fee, is not unconstitutional; it being an appropriate exercise of the police power of the State.

Before MAULDIN, J., Greenville, September, 1916. Reversed.

etc.

Action by C. B. Thomas against J. A. Foster, Treasurer, Judgment for plaintiff, and defendant appeals.

Mr. E. M. Blythe, for appellant, cites: 21 S. C. 292; 63 S. C. 425; 165 U. S. 150; 142 U. S. 339; 199 U. S. 89; 66 S. C. 37; 63 S. C. 169; 79 S. C. 519; 73 S. C. 71.

Messrs. Ansel & Harris, for respondent, cites: 21 S. C. 294; Dillon Munc. Corp. 357; 91 N. C. 554; 25 Minn. 248; 151 Ky. 389; 30 S. C. 366; 129 Am. St. Rep. 238.

September 5, 1917.

The opinion of the Court was delivered by MR. JUSTICE HYDRICK.

Section 3431, Civil Code 1912, requires every person operating any pool or billiard table outside of an incorporated city or town to pay an annual license of $100 to be turned into the school fund of the county. The act does not apply where tables are not operated for gain. Failure to pay the license is penalized by section 319 of the Criminal Code. Plaintiff paid the license under protest, and brought this action, under section 461 of the Civil Code, to recover it back, alleging that the license was illegally exacted, because the statute is unconstitutional. The Circuit Court

sustained his contention, and gave judgment accordingly. The county treasurer appealed.

The cases of State v. Berlin, 21 S. C. 292, 53 Am. Rep. 677, and Thomas v. Ry., 100 S. C. 478, 85 S. E. 50, decide the objections made by plaintiff to the validity of the statute against him, and show that the Court erred in holding it unconstitutional.

The act of 1914 (28 St. at Large, p. 570), excepting certain counties from the operation of section 3431, cannot affect plaintiff's case, because, if the act of 1914 is valid, the case of State v. Berlin shows that making the law apply only in certain parts of the State does not make it unconstitutional; if it is invalid, on the ground that it makes section 3431 a local or special law, in violation of subdivision 9, section 34, art. III, of the Constitution, of course, it would have no effect on that section. Section 3431 is clearly within the police power of the State. It deals with a business potential of evil. Playing pool and billiards is fraught with some danger of the morals of those who play, even when the playing is done under the most favorable surroundings in the atmosphere and under the restraining influence of the home, or in the privacy of the clubroom. The danger is greatly increased when the playing is done at a public resort, where all who can pay the price are at liberty to come and play. There is more danger of playing at such places leading to gambling and other vices. The legisla-ture might have prohibited playing at such places altogether. State v. Berlin, supra. The right to prohibit includes the lesser measure of regulation provided for by license under the statute.

There is material difference between the conditions surrounding such resorts in rural communities and in cities and towns. In the latter, they may be visited and supervised by police, which is not so practicable, when they are in the country.

Syllabi.

[108 S. C. When the playing is for social purposes only and without charge, there is not so much temptation to bet on the result of the game as there is when the use of the table is to be paid for, which is usually done by the loser, and that is practically betting on the result of the game. These and other reasons that might be suggested afford ample and reasonable grounds for the classifications and discriminations made by the statute. But, as all who are similarly situated fare alike under the law, no one has just ground to complain. Judgment reversed.

9499

LORICK v. SEABOARD AIR LINE RY.

(93 S. C. 332.)

1. APPEAL AND ERROR-SCOPE OF REVIEW-PRESERVATION OF EXCEPTIONS. -Though a proposition which might have been adjudicated on the first appeal was not then raised, a party is within his rights in making it for the first time in the second trial in the Circuit Court.

2. RAILROADS DEFECTIVE CARS-REPAIRS ON THE SPOT.-Under Safety Appliance Act April 14, 1910, sec. 4, c. 160, 36 Stat. 299 (U. S. Comp. St. 1916, sec. 8621), repairs to defective couplers must be made on the spot, and it is unlawful to move the car.

Before SEASE, J., Lexington, November term, 1915. Affirmed.

Action by J. H. Lorick against the Seaboard Air Line Railway. Judgment for plaintiff, and defendant appeals.

Messrs. Lyles & Lyles and C. M. Efird, for appellant. Mr. J. B. S. Lyles cites: As to plaintiff's own negligence was sole cause of injury: 61 S. C. 468, 489; 59 S. C. 539; 66 Fed. 193; 6 C. C. A. 190. No proximate causal connection: 101 S. C. 563; 105 U. S. 449; 89 S. C. 23; 229 U. S. 265. Assumption of risk: 102 S. C. 504; 56 Fed. 973; 6 C. C. A. 190, 198, 199.

Messrs. Frank G. Tompkins and Geo. Bell Timmerman, for respondent, cite: 237 U. S. 399; 222 U. S. 19.

September 7, 1916.

The opinion of the Court was delivered by MR. JUSTICE WATTS.

This is the second appeal in this case. The case is reported in 102 S. C. 276, 86 S. E. 675. At the trial of the case the first time a motion was made and granted by the Circuit Court on the ground the defendant had assumed the risk, an appeal was taken and the case reversed by this Court. On the second trial in the Circuit Court a motion was made for a directed verdict by the defendant on the ground that the plaintiff had assumed the risk, and that no other inference could be drawn from the evidence in the case, and that there was no evidence of negligence having a proximate causal connection with the plaintiff's injuries. The motion for a directed verdict was overruled, and the

FOOTNOTE. The publication of this opinion was delayed pending its review on writ of error, which seems to have been issued before the act of Congress, September 6th, 1916, took effect, by the United States Supreme Court, which, on April 23d, 1917, affirmed this opinion in the following opinion, reported in 243 U. S. 572, 37 Sup. Ct. Rep. 440, delivered by Mr. Justice Brandeis:

The Federal Safety Appliance Acts (as supplemented by Act of April 14, 1910, chap. 160, 36 Stat. at L. 299, Comp. Stat. 1913, sec. 8621) prohibit a carrier engaged in interstate commerce from hauling a car with a defective coupler, if it can be repaired at the place where the defect is discovered. United States v. Erie R. Co., 287 U. S. 402, 409, 59 L. Ed. 1019, 1023, 35 Sup. Ct. Rep. 621. The Seaboard Air Line Railway received such a car at one of its yards. Lorick, the local car inspector and repairer, who discovered the defect, undertook to make the repairs, as was in the line of his duty. To do so it was necessary to raise the coupler; and for this a jack was the appropriate appliance. None having been furnished him, he sat down under the coupler and raised it with his shoulder, which was thereby seriously strained. Occasion to make similar repairs had previously arisen at this yard at short intervals. Lorick had for this purpose repeatedly asked the chief car inspector for a jack; and a few weeks before the accident had been promised one. Lorick sued the company under the Federal Employers' Liability Act,

Opinion of the Court.

[108 S. C. case submitted to the jury, and resulted in a verdict for the plaintiff for $1,500. After entry of judgment defendant appeals and complains of error on the part of his Honor in not directing a verdict in favor of the defendant upon the grounds made in the Circuit Court.

As to the ground that the plaintiff had assumed the risk: The evidence in the case now is practically identical in substance with that of the former appeal. If different at all, only in some slight respects, and not in substance. The Court decided then contrary to the contention of the defendant, and would not be warranted in now making a different decision on the point involved without stultifying itself or overruling its former decisions. It is difficult to understand why the appellant could conceive that the Court would recede from its former decisions on this point in the same case, or where the appellant gets the idea that this Court in a State Court of South Carolina, and testified to the facts above stated.

The case was tried twice before a jury and was twice reviewed by the Supreme Court of South Carolina. At the first trial the Court directed a nonsuit on the ground that Lorick had assumed the risk. The Supreme Court set aside the nonsuit (102 S. C. 276, 86 S. E. 675), holding that, in view of the promise to supply a jack, the question of assumption of risk should have been left to the jury, citing McGovern v. Philadelphia & R. R. Co., 235 U. S. 389, 59 L. Ed. 283, 35 Sup. Ct. Rep. 127, 8 N. C. C. A. 67. At the second trial defendant asked for a directed verdict on the grounds both that Lorick had assumed the risk and that there was no evidence of negligence on defendant's part. This request being refused, the case was submitted to the jury under instructions. which were not objected to; and a verdict was rendered for plaintiff. Defendant's exceptions to the refusal to direct a verdict were overruled by the Supreme Court (108 S. C. —, 93 S. E. 332). The case comes here on writ of error where only these same alleged errors may be considered. The appellate Court was unanimous in holding that the trial Court had properly left the case to the jury. No clear and palpable error is shown which would justify us in disturbing that ruling. Great Northern R. Co. v. Knapp, 240 U. S. 464, 466, 60 L. Ed. 745, 751, 36 Sup. Ct. Rep. 399; Baltimore & O. R. Co. v. Whitacre, 242 U. S. 169, 171, ante, 33, 37 Sup. Ct. Rep. 33. The judgment is affirmed.

MR. JUSTICE VAN DEVANTER and MR. JUSTICE MCREYNOLDS dissented.