54 S.E. 375 | S.C. | 1906
April 18, 1906. The opinion of the Court was delivered by This appeal is from an order of Judge Gage allowing the complaint to be amended. The complaint, after stating that plaintiff is a minor of the age of sixteen years, and the appointment of Martha E. Pickett as his guardian ad litem, and after stating the incorporation of the defendant and its operation of the railroad referred to alleged as follows:
"4. That on the twenty-seventh day of December, 1901, the plaintiff went to said depot at St. Matthews for the purpose of securing transportation therefrom over said line of railroad to the said city of Columbia upon the regular passenger train thereon, which according to the schedule then of force passed said depot at or about thirty-four minutes *238 past 8 o'clock in the evening; that plaintiff reached said depot in ample time to permit him to purchase his ticket and board said train before it left said station; that although it was then a very short time before said train was due, there was no agent at the ticket office at said station, and plaintiff was unable to get a ticket thereat; that plaintiff finally found said agent out at the train, after same had arrived at said station, and applied to him to have said train wait until plaintiff could obtain a ticket and get on board the cars; that said train having in the meantime begun to move away from said station, said agent told plaintiff to board the same at once, and thereupon plaintiff climbed upon the steps of the nearest car as the same was moving slowly past, and proceeded to go up into said car; that while plaintiff was still upon the steps of said car and before he could pass therefrom on to the platform or into the interior thereof, the said train by reason of the negligent, careless and reckless management thereof on the part of the employees in charge of the same, was caused to give a sudden and violent jerk and lurch, hurling the plaintiff from the steps of said car to the ground and beneath the wheels of said car, whereby plaintiff's right arm was so crushed and mangled that it had to be removed at the shoulder, his right ear was cut and torn, and his head and face lacerated, bruised and scarred, and thereafter for a long time this plaintiff suffered great bodily pain, is permanently injured and disabled, and is and will be incapacitated from pursuing any active calling.
"5. That the said injuries as aforesaid were caused to the plaintiff by the negligence, fault, carelessness and recklessness of said South Carolina and Georgia Railroad Company, its agents or lessees, in not having and keeping at said ticket office at said time an agent, or other means, for supplying plaintiff with the ticket required for transportation over said railroad, in failing to provide at said station a careful and competent agent for the transaction of its business; and in providing thereat an agent who was careless, incompetent and inattentive to his duties, and in failing to have said train *239 wait or stopped to permit plaintiff to board same, and in directing plaintiff to get aboard said train while it was moving off as aforesaid, and in causing said train to give a sudden and violent lurch and jerk in the manner it did while plaintiff was upon the steps of said car and in the act of boarding the same as aforesaid; by reason of all and each of which negligent, careless and reckless acts the plaintiff was wounded and injured in the manner aforesaid.
"6. That the injuries aforesaid to the plaintiff were caused by the wrongful acts, fault, default, negligence and recklessness of said South Carolina and Georgia Railroad Company, its agents or lessess, in the manner before mentioned, whereby the plaintiff has suffered great and long continued bodily pain, was and is incapacitated for work, was caused great expense for medical treatment, has been maimed and permanently injured, and prevented from pursuing any active calling in life, and otherwise hurt and injured to his damage $10,000
"Wherefore, the plaintiff demands judgment against the defendant for the sum of $10,000 and for the costs and disbursements of his action."
On notice duly served the plaintiff moved to amend the complaint in the following particulars:
"(a) By striking out in the twenty-third line of paragraph 4 of the complaint, the words `careless and reckless' and inserting in lieu thereof the words `and careless.'
"(b) By striking out paragraph 5 of the said complaint and inserting in lieu thereof the following: `That the said injuries as aforesaid were caused to the plaintiff by the negligence, fault and carelessness of the said South Carolina and Georgia Railroad Company, its agents or lessess, in not having and keeping at said ticket office at said time an agent, or other means for supplying plaintiff with the ticket required for transportation over said railroad (and in failing to assist plaintiff to get aboard said train, though the said railroad company, its agents and servants saw and knew that plaintiff was young and inexperienced, and the starting *240 and movement of said train would render it difficult to board same, and knew, or in the exercise of ordinary care ought to have known, that plaintiff needed assistance to get aboard of same safely); and in directing plaintiff to get aboard said train while it was moving off as aforesaid; and in causing said train to give a sudden and violent lurch and jerk in the manner it did while plaintiff was upon the steps of said car and in the act of boarding the same as aforesaid; by reason of all and each of which negligent and careless acts the plaintiff was wounded and injured in the manner aforesaid.'
"(c) By striking out in the second and third lines of paragraph 6 of the complaint the words `negligence and recklessness' and inserting in lieu thereof the words `and negligence.'
"(d) By striking out in the ninth line of paragraph 6 the word `ten' and inserting in lieu thereof the word `twenty-five.'
"(e) By striking out in the second line of the prayer the word `ten' and inserting in lieu thereof the word `twenty-five.' "
The amendments proposed were granted by the following order:
"It is immaterial that there have been two trials of this cause. The motion by plaintiff to amend the complaint is one made before trial, for no judgment has yet been rendered in the cause. Hall v. Woodward,
"The plaintiff seeks further to charge afresh an act of negligence he had not alleged aforetime; that is permissible.
"The plaintiff seeks to increase his demand for damages from $10,000, as he first claimed, to $25,000 now; that is permissible.
"The motion is granted, and it is ordered." *241
The first four exceptions involve a construction of section 194 of the Code of Civil Procedure. That oft-quoted section reads:
"The Court may before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of any party, or a mistake in any other respect; or by inserting other allegations material to the case; or, when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved."
This action was first tried on November 12, 1903, and resulted in a verdict for plaintiff for $8,800, but on appeal to this Court a new trial was ordered,
It is contended by appellant under its first four exceptions that the Court committed error of law and abuse of discretion in allowing the amendments to strike out, especially after two trials. The fact that there had been two trials is not at all controlling in the exercise of the Circuit Court's discretion to allow amendments if the regarded them to be in furtherance of justice. The effect of granting a new trial is to restore the case to its former status, except as to matters which have become res judicata, and, therefore, the application to amend was not an application during orafter trial, but was an application before trial. Jennings v.Parr,
It is contended that section 194 gives no power to strike out allegations, except the name of a party. This construction of the statute, we think, is too narrow and is in conflict with the broad and liberal spirit of the Code, which seeks a full and fair hearing of a cause upon its merits, and to this end ample provisions are made for amendments, viewing the section quoted as a whole, which allow a mistake in any respect to be corrected and allow the insertion of other allegations in respect to other case. The power to strike out allegations in respect to other matters than the name of a party is necessarily involved in the power to correct all mistakes and insert material allegations. If the materials allegations inserted should be inconsistent with anything alleged in the original pleading, or more clearly or fully state the facts upon which the cause of action attempted to be alleged should rest, it would be a cumbers and circumlocutory sort of pleading, to require that the old as well as the new allegations shall remain therein. The Code, sec. 163, requires a plain and concise statement of the facts constituting the cause of action without necessary repetition, and to comply therewith it may be as important to strike out as to insert. The practice of striking out allegations and inserting others by way of amending pleadings is very common and so far as we know the power to do so has not heretofore been questioned. Whether one may be allowed to strike out some statement of fact material to the action or defense of the adverse party, after such fact stands admitted under the original pleadings, is a question of some difficulty. Martin v. Fowler,
In so far as the amendments allowed struck out the allegations tending to show that the acts charged against defendant were reckless or wilful, they were favorable to appellant, as such striking out merely amounted to an abandonment by plaintiff of the cause of action based upon a wilful wrong, retaining only the cause of action based upon mere negligence.
We will now consider whether the allegations permitted to be inserted fall within the power to amend under sec. 194,supra. There is some apparent conflict among the decisions of this State, which we will not now attempt to notice at length or reconcile, as to whether section 194 will authorize an amendment before trial which substantially changes the cause of action or defense. One line of cases, represented by Hall v. Woodward,
"As long as the plaintiff adheres to the contract or injury originally declared upon, an alteration in the modes in which the defendant has broken the contract or caused the injury is not an introduction of a new cause of action. The test is whether the proposed amendments is a different matter, another subject of controversy, or the same matter more, fully or differently laid to meet the possible scope and varying phases of the testimony."
With respect to the objection that the amendments was erroneous in allowing the demand for damages to be increased *245
from $10,000 to $25,000, it is met by the same considerations. "Amendments of the ad damnum are never deemed to constitute a new cause of action." 1 Ency. P1.
Pr., 586; Lockwood v. Bridge Co., 60 S.C. 496,
It is submitted under the fifth exception that Judge Gage erred in granting the amendments, and that the Court should now dismiss the complaint because of Judge Ernest Gary's holding in granting a new trial, that "the preponderance of the testimony shows that the plaintiff's own negligence contributed to his injury as a proximate cause thereof." It is contended that this order of Judge Gary not appealed from is a final decision of the question of fact as to contributory negligence, and, therefore, that the complaint should be dismissed. The power to grant new trials upon the Court's view as to the weight of the testimony rests in judicial discretion and there is no appeal from its exercise except where error of law is involved. Judge Gary's remark about the testimony was merely the Courts reasons for granting the new trial, and is not a finding of fact to be reviewed by appeal, as the Judge is not the tribunal invested with power to pass upon questions of fact in law cases. The legal effect of the order granting a new trial was merely to restore the case to its statutes before the trial, which necessarily involved a conclusion that the new trial should take place under the existing pleadings, wherein contributory negligence is a matter in issue, subject, of course, to the Court's power to amend the same.
The exceptions are overruled, and the judgment of the Circuit Court is affirmed. *246