November 24, 1908. The opinion of the Court was delivered by
The plaintiff at the trial in the Circuit Court on her original complaint recovered a verdict of ten thousand dollars. On appeal, the judgment was set aside and a new trial ordered. The nature of the action and the circumstances out of which the suit arose are set forth in detail in the former opinion, 78 S.C. 552,59 S.E., 562. It is only necessary to say here that the original complaint was for punitive damages alone, under the allegation that the defendant, as a common carrier, wantonly and recklessly violated its duty to the plaintiff, as a passenger on its railroad, by not protecting her from indignities alleged to have been inflicted upon her at Green Pond, the station at which she left defendant's car, by a crowd of noisy and drunken negroes. The Supreme Court held there was no evidence of wanton or reckless violation of duty, and that the Circuit Court for that reason should have granted the motion for a new trial. The Supreme Court further held that the Circuit Court in charging that a carrier is bound to exercise the highest degree of care to protect a passenger, and that the relation of carrier and passenger continues after the passenger has left the train at his destination, until he has had a reasonable time to get away, should have charged further that, when the injury complained of results from the acts of strangers on the station premises, "knowledge of the existence of the danger or circumstances from which the danger may have been reasonably anticipated is necessary to fix the liability of the carrier for damages sustained in consequence of failure to guard against it." For these errors a new trial was ordered.
Thereafter the plaintiff moved in the Circuit Court to amend her complaint in several particulars. The proposed amendments, which were allowed by Judge Hydrick, appear in italics in the amended complaint printed in the record. The effect of the amendments was to insert allegations that the wrongs suffered by plaintiff were inflicted while she was leaving the cars and station of defendant, and before she had a reasonable time to leave: that defendant
knew the danger to which the plaintiff would be exposed from the crowd of negroes; that its conductor promised her the protection of an escort, but the agent of defendant at Green Pond, who was provided as her escort, made no effort to protect her; and that the defendant's alleged breaches of duty were negligent as well as wanton and reckless. The defendant insists the amendment should not have been allowed, because the original complaint failed to state facts constituting a cause of action, and, therefore, there was nothing by which to amend. It requires no discussion to show that under the case of Ruberg v. Brown, 50 S.C. 397,27 S.E., 873, on which defendant relies, the amendments, except that as to the charge of negligence, were allowed to cure and make complete a faulty and incomplete statement of a cause of action.
The important point in the appeal is made by the objection that amending the complaint so as to charge as negligent the acts and omissions of defendant, described in the original complaint as wanton and reckless, was stating a new cause of action by amendment, and that the Code of Procedure does not allow an amendment which goes to the extent of bringing in a new cause of action. It is well settled that the amendment alleging negligence, where in the original complaint wantonness and recklessness had been charged, sets up a new cause of action. Machen v. Tel. Co.,72 S.C. 256, 51 S.E., 697; Baldwin v. Cable Co., 78 S.C. 419,59 S.E., 67. There is as little doubt that when the cause was sent back from this Court to the Circuit Court for a new trial, the power of the Circuit Judge to grant amendments before the new trial was the same as if there had never been a trial. Hall v. Woodward, 30 S.C. 575,9 S.E., 684; Pickett v. Ry. Co., 74 S.C. 236,53 S.E., 370. The power to allow amendments at this stage of the case is not affected by the fact that it is, as it should be, more difficult to convince a Judge that it would be in furtherance of justice to allow an amendment raising new issues, after the parties had been subjected to the expense
and delay of a trial in the Circuit Court and on appeal in the Supreme Court. The question then is, whether the Circuit Court had the power under sec. 194 of the Code of Procedure to allow an amendment setting forth a new cause of action. The cases in this State are irreconcilable and there is a great contrariety of opinion on the subject in other jurisdictions. A review of the cases was recently made by Mr. Justice Jones in Knight v. AEtna Cotton Mills, 80 S.C. 213, and further analysis would not be profitable. The important matter is to state a fixed rule on which the Courts and the bar may rely. Sec. 194 provides: "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 striking out the name of any party; or by correcting a mistake in the name of a 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." Under this section the power of the Court to allow amendment "by correcting a mistake in the name of a party or a mistake in any other respect" is unlimited, except by the obligation imposed by the statute on the Court to see that the amendment is in furtherance of justice, and that such terms are imposed as may be just. This power is conditioned on proof of a bona fide mistake in setting forth the plaintiff's rights and the defendant's invasion of them. Unless the amendment proposed relates to the same transaction or the same subject as the original complaint, then it is manifest the plaintiff can not claim to have made a mistake in the matter to which his pleading relates. When, however, the plaintiff makes the mistake of supposing one of his rights has been invaded by the defendant in one transaction or a series of transactions relating to the same subject, and discovers another and different right was invaded, it is within the power of the Court, when it appears to be in furtherance of justice, to grant the amendment though, in strictness,
the amendment amounts to a change of the cause of action, or the insertion of another cause of action.
The limitation of the power of amendment to conform the pleadings to the facts proved, that the amendment shall not change substantially the claim or defense, is by its terms applicable only to amendments proposed while the Court is hearing the evidence or after it has heard it, and not before trial.
The judgment of this Court is, that the judgment of the Circuit Court be affirmed.
I am unable to concur in the view that sec. 194 of the Code permits the insertion of a new and distinct cause of action by amendment.
It is contended that the amendment allowed falls within the third class named in said section: "Correcting a mistake in the name of a party or a mistake in any other respect."
In the first place the record fails to disclose that the amendatory matter was omitted from the original pleading as the result of a bona fide mistake. In the second place, it is straining the language quoted to make it cover the insertion of allegations of a new and distinct cause of action. It would seem that the meaning of the language is simply to correct a mistake in the name of a party and in other respects relevant to the cause of action originally attempted to be stated.
This Court has repeatedly decided that sec. 194 does not allow the insertion of a new cause of action by way of amendment. Ruberg v. Brown, 50 S.C. 398,27 S.E., 873; Proctor v. Ry., 64 S.C. 491, 42 S.E., 427; Sutton v.Catawba Power Co., 70 S.C. 270, 49 S.E., 863; Pickett
v. Ry., 74 S.C. 236, 54 S.E., 236; Mfg. Co. v. IronWorks, 75 S.C. 350, 55 S.E., 768.
The case of Proctor v. Ry., supra, expressly decides the very point involved, that a complaint alleging a wilful tort cannot be so amended as to allege also a cause of action based on more negligence.