Wallace v. Columbia & G.R. Co.
| Decision Date | 07 October 1892 |
| Citation | 16 S.E. 35,37 S.C. 335 |
| Parties | WALLACE v. COLUMBIA & G. R. CO. |
| Court | South Carolina Supreme Court |
Appeal from common pleas circuit court of Fairfield county; J. J NORTON, Judge.
Action by John Wallace against the Columbia & Greenville Railroad Company. Plaintiff had judgment, and defendant appeals. Affirmed.
For former report, see 12 S.E. Rep. 815.
J. S Cothran and B. L. Abney, for appellant.
Ragsdale & Ragsdale and McDonald, Douglass & Obear, for respondent.
Upon the complaint being read, the defendant interposed an oral demurrer that the allegations therein were not sufficient to constitute a cause of action, which being overruled, the defendant appealed. This court held (34 S.C. 62, 12 S.E. Rep 815) that the circuit judge had erred. Upon the cause being again called in the circuit court, the plaintiff, on due notice, moved for leave to amend his complaint; and, at the same time, the defendant moved to dismiss the complaint, and for leave to enter judgment for the costs and disbursements. Judge KERSHAW filed his order on the 27th February, 1891, as follows: From this order the defendant gave notice of intention to appeal, but by written consent of the attorneys of record the presentation of the questions underlying this appeal was postponed until the appeal from the final judgment should be heard.
1. Did the circuit judge err in the order granting leave to amend "as counsel for plaintiff may be advised?" And, if he did not err in this particular, did he err in failing to require the payment of costs as a condition precedent to such amendment?
We will now briefly consider these objections. It may be remarked that the plaintiff's cause of action was that, owning a large plantation of land through which defendant's road bed was constructed, defendant had so negligently constructed such roadbed where it crossed a stream known as "Hunt's Branch," at two separate points on plaintiff's land, that a large portion of the same became uncultivatable, because of defendant's negligence as aforesaid. This court, on the first appeal, had held that the allegations of the complaint were defective. When the case went back, it will be perceived that the status of the parties litigant was that the complaint must be amended, or, on failure to do so, an order dismissing the complaint must be made. The circuit judge having taken the view at the first trial that the complaint was sufficient in its allegations, the plaintiff then had no necessity to apply for leave to amend. When, however, the action was remitted from this court to the circuit court, the question of the right of plaintiff to move for such amendments as he might desire was in no way passed upon by this court, except so far as such decision here made such a step necessary on the part of the plaintiff in order to avoid a dismissal of his action by the circuit judge, if he failed to ask such relief. This being so, the plaintiff had a right to ask for leave to amend. When the circuit judge, in the exercise of his wise discretion in such cases, decided that the plaintiff should have leave to amend, there was no error, unless by his order he opened the door too wide for that purpose, or in not imposing terms as to payment of costs. Now, was the order sufficiently guarded in its leave to amend generally? We think so, for these reasons: The circuit judge required the plaintiff to make his amendments in 20 days after his order, and with leave to defendant to answer within 20 days after service of the amended complaint. Very much of the trouble in understanding the cases decided by this court on the subject of amendments arises from a failure to grasp their application to the particular cases wherein such decisions were rendered. In other words, there is a failure to distinguish between those cases where the plaintiff or defendant, as the case may be, is allowed to amend his respective pleadings before trial, on the one hand, and those cases where, during the pendency of the trial, such right is asked for, on the other hand. In the first class of cases, what difference is there if 20 days are allowed to answer an amended complaint, or an original complaint is to be answered, the time for answering being the same in each case? If there be no difference, why should a plaintiff, when granted leave to amend his complaint, not be clothed with a general power of amendment? This is precisely what the circuit judge did. And the case here shows no abuse by the plaintiff of the privilege of amendment accorded to him by the generous provisions of the judge's order for that purpose, for the complaint states, with distinctness and definiteness, by its allegations, the facts that this court pointed out as necessary. Hall v. Woodward, 30 S.C. 574, 9 S.E. Rep. 684, and cases there cited. But should the circuit judge have required the payment of costs as a condition precedent? We do not think so. Terms were in his discretion. We regard his order as very fair and just to the defendant.
2. After the defendant had answered the amended complaint, the cause came on for trial before Judge FRASER and a jury at the September term, 1891, of the court of common pleas for Fairfield county. A verdict for the plaintiff having been rendered judgment was duly entered thereupon, and the defendant now appeals to this court: (1) Because the circuit judge erred in refusing defendant's motion for a nonsuit. (2) Because the presiding judge erred in charging the jury, with reference to the care required of the railroad company in the construction of its road, the following: ...
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