Koennecke v. Seaboard Air Line Ry.

• Decision Date: 04 May 1915
• Docket Number: 9093.
• Parties: KOENNECKE v. SEABOARD AIR LINE RY.
• Court: South Carolina Supreme Court

85 S.E. 374

101 S.C. 86

KOENNECKE v. SEABOARD AIR LINE RY.

No. 9093.

Supreme Court of South Carolina

May 4, 1915

Appeal from Common Pleas Circuit Court of Richland County; W. A Holman, Special Judge.

Action by B. M. Koennecke against the Seaboard Air Line Railway. From a judgment for plaintiff, defendant appeals. Affirmed.

Lyles & Lyles, of Columbia, for appellant.

F. G Tompkins, W. H. Cobb, and C. S. Monteith, all of Columbia for respondent.

HYDRICK J.

Plaintiff brought this action to recover damages for the alleged wrongful killing of her intestate by the defendant. The complaint states a cause of action under the state statute. There is no allegation that, at the time he was killed, deceased was employed in interstate commerce, or that defendant was engaged in such commerce. Nor are any facts alleged from which, by reasonable intendment, such employment or engagement can be inferred. Nor does defendant set up in its answer any facts which directly, or by reasonable intendment, bring the case under the federal statute. The allegation of the complaint that deceased left a widow and four children, who were dependent upon him, is appropriate to an action under the federal statute; and, while the allegation of dependency is not strictly necessary, it is not wholly inappropriate to an action under the state statute, because the damages recoverable under the state statute are such as the jury "may think proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought." Barksdale v. Railway, 76 S.C. 183, 56 S.E. 906. Therefore, as neither plaintiff nor defendant set up or claimed any right or immunity under the federal statute, there would have been no error, if all evidence tending to prove facts sufficient to bring the case under that statute had been excluded. Mims v. Railroad Co., 85 S.E. 372, filed April 3, 1915. That such right or immunity must be specially set up or claimed at the proper time and in the proper way cannot be controverted. Oxley Stave Co. v. Butler Co., 166 U.S. 648, 17 S.Ct. 709, 41 L.Ed. 1149.

But, on cross-examination of one of plaintiff's witnesses, defendant brought out testimony, without objection, which tended to prove facts sufficient to bring the case under the federal statute. So long as that testimony remained in the record, either side had the right to claim the benefit of the federal statute, even without amendment of the complaint or answer. Toledo, etc., R. Co. v. Slavin, 236 U.S. 454, 35 S.Ct. 306, 59 L.Ed. 671. But, when that testimony came out, plaintiff moved to amend her complaint by alleging facts to bring the case under the federal law, and her motion was granted. Defendant resisted the motion to amend on the ground that the amendment would substantially change the plaintiff's claim by substituting one cause of action for another, and denied the power of the court to grant such an amendment. Strictly and very technically speaking, it may be that the amendment substituted one cause of action for another, though it would, perhaps, be more nearly correct to say that the cause of action is the same, whether the action be brought and tried under the state or the federal law; and, since the principal differences between an action under the state and federal law lie in the authority by which the right of action is given and in some of the rules of law applicable in the determination of the rights of the parties, they relate to form and procedure rather than to substance. So that it could rarely happen that a shifting from one to the other would work prejudicial surprise. But if the parties have not been previously warned by the pleadings that such shifting might take place, and if it should be made to appear that it would be a surprise and operate to cut off a claim or defense which could otherwise have been made, the court would either not allow it or allow it upon such terms as would prevent prejudice.

In Missouri, etc., R. Co. v. Wulf, 226 U.S. 570, 33 S.Ct. 135, 57 L.Ed. 355, Ann. Cas. 1914B, 134, plaintiff brought action in her individual capacity under the state law for damages for the death of her son. Defendant alleged that, at the time of his injury and death, deceased was employed and defendant engaged in interstate commerce. Thereafter plaintiff was appointed administratrix of her son's estate, and was allowed to amend her petition by making herself a party plaintiff, as administratrix, and by alleging a cause of action both under the state and federal law. She recovered under the federal law. There, as here, the contention was made that, by the amendment, the plaintiff was allowed to substitute a new and entirely different cause of action. But the court overruled that contention, and held that the change was in form rather than in substance, and it was not equivalent to the commencement of a new action, so as to render it subject to the two years' limitation prescribed by the federal act. The court said:

"It introduced no new or different cause of action, nor did it set up any different state of facts as the ground of action, and therefore it related back to the beginning of the suit."

The amendment allowed in the case at bar was clearly within the power and discretion of the court. Such an amendment may be allowed even during the trial, when it does not so materially change the claim or defense as to result in prejudice to the adverse party. Shelton v. Railway, 86 S.C. 98, 67 S.E. 899; Birt v. Railway, 87 S.C. 239, 69 S.E. 233; Hewlett v. Railroad Co., 93 S.C. 76, 76 S.E. 32. Where such amendments are asked for during the trial, if the opposite party would be misled or surprised thereby to his prejudice, it is incumbent upon him to make the fact appear by affidavit or otherwise, to the satisfaction of the court; and, if that is done, the court would either refuse the amendment, or, granting it, would continue the hearing, or impose such other terms and conditions as it might deem necessary to prevent prejudice. Shelton v. Railway, supra.

Defendant contends further that the court erred in ordering the trial to proceed after the amendment was allowed, notwithstanding the statement made by its attorney that he was not prepared to meet the issue of the alleged dependency of the widow and children upon deceased. The record shows that defendant resisted the motion to amend chiefly on the assertion of the want of power in the court to grant it, and that its main purpose was to obtain a nonsuit. Evidently the statement of counsel that his only objection to proceeding with the trial was that he was not prepared to meet the issue of dependency did not satisfy the court that he would suffer prejudice on that score, for the court stated, time and again, that if counsel was taken by surprise, and was not prepared to proceed with the trial, he would not force him to go on. When counsel first raised the objection that he was not prepared to meet the issue of dependency, plaintiff's attorneys consented to strike out the names of two of the children alleged to be dependent, and then claimed...