Cartin v. South Bound R. Co

• Decision Date: 23 February 1895
• Citation: 43 S.C. 221,20 S.E. 979
• Court: South Carolina Supreme Court
• Parties: CARTIN . v. SOUTH BOUND R. CO.

20 S.E. 979

43 S.C. 221

CARTIN .

v.SOUTH BOUND R. CO.

Supreme Court of South Carolina.

Feb. 23, 1895.

Ambiguity in Complaint—Election as between Two Causes of Action—Effect of Judgment.

1. When the allegations of the complaint are appropriate to either of two causes of action, plaintiff may be required, on motion of defendant, to elect upon which cause he will proceed to trial.

2. Where the allegations of the complaint are appropriate to either of two causes of action, and defendant does not move that plaintiff be required to elect upon which cause he will proceed, and a judgment for defendant is rendered on one cause, plaintiff cannot thereafter separate the causes, and sue on the one upon which there was no adjudication.

Appeal from common pleas circuit court of Lexington county; W. C. Benet, Judge.

Action by Mrs. Jane A. C. Cartin against the South Bound Railroad Company to recover damages by reason of the location and operation of defendant's road within 400 yards of her dwelling. From an order dismissing the complaint, plaintiff appeals. Affirmed.

C. M. Efird and Izlar, Glaze & Herbert, for appellant.

Lyles & Muller, for respondent.

GARY, J. The plaintiff executed to the defendant a deed by which she conveyed to said defendant a right of way 300 feet wide over her lands, "for the purpose of building a railroad over the same; such right of way to be over said lands in such shape and direction as the said railroad company, its successors or assigns, may select, but so as not to interfere with my dwelling, barn, or any other outbuilding, and not nearer than 400 yards to my dwelling. But, if said railroad company should find it necessary to run its road nearer my dwelling than first above stated, it may do so on paying such damages, if any, as I may sustain thereby, as may be assessed by three disinterested parties, one chosen by me, one by it, and the third by the first two." The complaint sets forth this deed, and alleges that the defendant did construct its road and is operating the same nearer than 400 yards to plaintiff's dwelling; that thereafter plaintiff offered to arbitrate with the defendant the question of damages, but the defendant failed, neglected, and refused to comply with her request; that the plaintiff has sustained damages, by reason of the location and operation of defendant's road within 400 yards of her dwelling, to the amount of $1,000, which is the price the defendant company agreed to pay for said right of way. The defendant in its answer admitted its corporate existence, and admitted the execution and delivery of the deed, and denied every other allegation in said complaint contained, and for a second defense set up the plea of res adjudicata. The case came up for a hearing before his honor, Judge Benet, and a jury, but, before any testimony was offered by plaintiff, a motion was made by defendant's counsel to dismiss the complaint, on the ground that the issues raised by the pleadings herein were res adjudicata. The motion was heard by consent, and the record in the former action, consisting principally of the original complaint, order sustaining oral demurrer to same, order for leave to amend, amended complaint, and order of nonsuit, was presented to the court. The motion was granted, and the complaint dismissed; his honor, Judge Benet, holding that the order of nonsuit was "a bar to this action, and that plaintiff's only remedy was to proceed...