43 S.C. 225 | S.C. | 1895
The opinion of the court was delivered by
The plaintiff instituted an action against the defendant, on the 15th day of August, 1892. After a verdict from a jury in his favor, and after judgment thereon, an appeal was taken therefrom by the defendant. This court granted a new trial, 40 S. C., 517. Just after the new trial was granted this court decided the two cases of Hunter v. Columbia &c. Railroad Company, 41 S. C., 86, and Lipfeld v. Charlotte &c. Railroad Company, Ibid., 285, wherein it was established that, under section 1511 of General Statutes (now section 1688 of our Revised Statutes), a right of action did not exist against a railroad for fire communicated to property contiguous to a railroad track by a locomotive engine from fire originating within the right of way of the railroad, when set out by an authorized agent of said railroad, if said railroad was then operated by a leased road.
When these decisions were announced the plaintiff’s complaint was as follows: “The plaintiff above named, complaining of the above named defendant, by his amended complaint, alleges: 1. That the defendant is a corporation duly incorporated under the laws of this State, and owns and operates a railroad between the stations of Alston and Spartanburg, in the State aforesaid, operating the same through its lessee, the Richmond and Danville Railroad Company. 2. That the plaintiff is the owner of a certain plantation, or tract of land, near Alston, in the County of Fairfield, and State aforesaid, which lies along and near the track or roadbed of the defendant. 3. That on the day of May, A. D. 1892, the defendant, through its agent, set fire out upon its right of way, which fire was communicated to the said land of plaintiff and burned over about two hundred acres of the same, destroying growing trees, rubbish, and other matter upon which the value and fertility of the said land, in a large measure, depended, to the damage of the plaintiff in the sum of three hundred dollars, and (contrary
So a motion was served upon the defendant’s attorney by the plaintiff’s attorneys that they would move “upon all'the pleadings and proceedings in this action, and upon the proposed amended complaint and affidavits herewith served upon you, before Judge Fraser, on the 13th day of June, 1894, at Winnsboro, S. C., for an order granting leave to the plaintiff to amend his complaint by striking out from the 3d paragraph thereof the words, ‘contrary to the form of the act of the General Assembly in such case made and provided,’ and inserting in lieu thereof the words, ‘the plaintiff alleges that the defendant, by its agents and servants, did not observe ordinary care and prudence in setting out said fire, and did not observe ordinary care and prudence, in that its said agents and servants, seeing and knowing that the said fire was spreading out on the plaintiff’s land, to his great damage, made no effort to extinguish the same.’ ” Accompanying this notice was the proposed complaint, which conformed strictly to the notice. Three affidavits also accompanied the notice, which alleged amongst other things, “that the facts upon which the plaintiff bases his right to recover in this action, as shown at the last trial (italics ours) and as deponent is prepared again to show, are as follows: About the 16th day of May, 1892, one Jacob Powell, the section master in the employ of the defendant, caused a fire to be set out on the defendant’s right of way, which was contiguous to this plaintiff’s land; that the said fire was put out at a very dry season, and at a point where there was much dry, combustible matter which was easily ignited; that it was communicated to deponent’s land without any effort whatsoever on the part of defendant’s agents and servants to arrest its course, although they were present and saw the said fire spreading out on deponent’s land; that the said fire was burning on the lands of this deponent for two or three days; that it did great damage thereto and endangered the deponent’s buildings, and although it was seen so burning by the defendant’s agents and
The motion was heard by Judge Fraser, whereupon, on the 21st June, 1894, he made the following order: “This cause came before me at chambers, at Winnsboro, on a motion on due notice, accompanied with affidavits, for leave to amend the complaint so as to add an allegation of negligence, in that there was on the part of the agents of the defendants a want of ordinary care and prudence in setting out fire on the right of way, and in that the said agents, seeing and knowing that the said fire was spreading to the plaintiff’s land, made no effort to extinguish the same. The complaint alleges a cause of action for damages by fire originating on defendant’s right of way, under Gen. Stat., sec. 1511. The cause of action under this section is complete, without any allegation of negligence. The proposed amendment would, therefore, be objectionable, in that there would be in this complaint, thus amended, two causes of action, without stating them separately. If this difficulty were out of the way, and the proposed amendment put into the complaint as a separate cause of action, the difficulty would be that this new cause of action would be protected by the statute of limitations in the same way as if made a part of the complaint at the commencement of the action — thus a new action, and not an amendment. There are valuable remedies as to this second cause of action now proposed to be set up by way of amendment which would have been available if the action had been commenced in reference to it when the original complaint was served, but are now lost by lapse of time, unless it can be set up by way of amendment. I think in cases like this the amendment ought not to be allowed. It is ordered, that the motion to amend be and the same is hereby dismissed.”
From this order of Judge Fraser the plaintiff now appeals:
Now let us inquire into the cause of bar. We find that the plaintiff, after the fire in May, 1892, by which his property was injured, had two causes of action therefor against the defendant: one under General Statutes, section 1511 (now 1688 of our Revised Statutes); the other under the common law for
We remarked just a moment ago that the plaintiff had two causes of action against the defendant because of this fire set out by its authorized agents in May, 1892. In the case of Hunter v. Columbia, &c. R. R. Co., 41 S. C., at page 90, Chief Justice Mclver stated the doctrine in these words: “It cannot be claimed that the provisions of section 1511 supercede the right of action at common law based upon negligence, for there is nothing in the section to indicate that the legislature intended to take away any previously existing right of action, and the contrary view is expressly recognized in Rodgers v. Railroad Co., 31 S. C., 388; and in the recent case of Kinard v. Railroad Co., 39 S. C., 514, this court expressly adopted the same view in considering a case under another section of the same chapter of the General Statutes analogous to the section now under consideration, so far, at least, as this particular question is concerned.” An examination of the complaint as originally amended and upon which the first trial was had will show that
It is the judgment of this court, that the order appealed from be sustained, and the appeal dismissed.
It seems to me that the amendment asked for was refused in the exercise of the discretion of the Circuit Judge, and that, under the circumstances, his discretion was not only not abused, but was properly and wisely exercised.