Crosby v. Seaboard Air Line Ry. Co.

• Decision Date: 19 October 1909
• Citation: 65 S.E. 827,83 S.C. 575
• Parties: CROSBY et al. v. SEABOARD AIR LINE RY. CO.
• Court: South Carolina Supreme Court

65 S.E. 827

83 S.C. 575

CROSBY et al. v. SEABOARD AIR LINE RY. CO.

Supreme Court of South Carolina

October 19, 1909

Appeal from Common Pleas Circuit Court of Hampton County; R. C Watts, Judge.

Action by Addie Crosby and another against the Seaboard Air Line Railway Company. Judgment for defendant, and plaintiffs appeal. Affirmed.

See also, 81 S.C. 24, 61 S.E. 1064.

J. S Griffin, C. C. Tracy, and W. S. Smith, for appellants. James W. Moore and Lyles & Lyles, for respondent.

WOODS J.

The question involved in this appeal is whether this court should reverse an order of Judge Watts refusing a motion to amend the complaint.

The plaintiffs recovered judgment in the circuit court for $5,000, under a complaint which alleged injuries sustained by Mrs. Crosby while alighting from defendant's moving train at Midway, Fla., in obedience to the "willful, unlawful and reckless" direction of the conductor. From that judgment the defendant appealed; one of the exceptions alleging error in the refusal of the circuit judge to instruct the jury that there was no evidence of willfulness or wantonness. This exception was sustained, and the judgment of the circuit court reversed. It was further adjudged in the former appeal that inasmuch as the complaint alleged willfulness and wantonness, and not negligence, there could be no recovery of actual damages in the absence of evidence of willfulness and wantonness. 81 S.C. 24, 61 S.E. 1064. The judgment of the Supreme Court was rendered July 23, 1908. On 31st March, 1909, after three terms of the court of common pleas in Hampton county had intervened, the plaintiff made a motion to amend the complaint by making the additional allegation that the action of the conductor in directing the plaintiff to alight was negligent. The order of Judge Watts states the following as the reasons for refusing the motion to amend: "(1) That the judgment of the Supreme Court upon the appeal (81 S.C. 24, 61 S.E. 1064) under rule 27 of the Supreme Court (56 S.E. v) has the same effect as if the jury had returned a verdict for defendant under the request for error in refusing which the judgment of the circuit court was reversed, and that consequently the case is ended. (2) That it fails to appear from the record on this motion that the said omission of the allegations of negligence in the original complaint were due to bona fide mistake on plaintiff's part, as required by the rule set forth in Taylor v. A. C. L., 81 S.C. 574, 62 S.E. 1113. (3) That it fails to appear that it would be in the furtherance of justice to allow the amendment, but, on the contrary, it appears that it would work great injustice after plaintiffs have neglected to make this motion for such an unreasonable length of time." The action was commenced after the adoption of the following as rule 27 of the Supreme Court: "Whenever an appeal to this court is sustained on the ground that a nonsuit should have been granted or a verdict directed because of a total failure of evidence or because the evidence could admit of but one inference, the reversal of the judgment shall have the same effect as if the nonsuit had been ordered, or a verdict returned under the direction of the circuit judge." As the action was founded exclusively on the allegation of willfulness and wantonness, the request for an instruction that there was no evidence of wantonness or willfulness was equivalent to a request for an instruction to find a verdict for the defendant. Therefore, under rule 27, when the...