Hunter v. Hyder

• Decision Date: 16 May 1960
• Docket Number: No. 17659,17659
• Citation: 236 S.C. 378,114 S.E.2d 493
• Parties: J. Ben HUNTER, Respondent, v. L. L. HYDER and Yaymon J. Wyatt, Appellants.
• Court: South Carolina Supreme Court

Page 493

114 S.E.2d 493

236 S.C. 378

J. Ben HUNTER, Respondent, v. L. L. HYDER and Yaymon J. Wyatt, Appellants.

No. 17659.

Supreme Court of South Carolina.

May 16, 1960.

John C. Mooneyham, Spartanburg, Justin A. Bridges, Laurens, for appellants.

Blackwell, Sullivan & Wilson, Laurens, for respondent.

MOSS, Justice.

J. Ben Hunter, the respondent herein, brought this action against L. L. Hyder and Waymon J. Wyatt, the appellants herein, upon a complaint in which he alleged that he was the owner of a tract of land containing 500 acres, more or less, adjoining a tract of land owned by the appellants. The complaint alleged that on the tract of land owned by the respondent there was certain pine and hardwood timber; that the said land had on it suitable fences to enclose the cattle of the respondent, and that certain of the land was open, cleared and properly terraced. The complaint then alleged that the appellants carelessly, recklessly, and in utter disregard of the rights of the respondent, did enter upon the said tract of land and operate implements over the open land and terraces, and did cut and make useless the fences on said land, making it impossible for the respondent to have the cattle enclosed, and did cut and remove pine and hardwood timber therefrom. The respondent instituted this action to recover actual and punitive damages for the unlawful and willful trespass.

The appellants answered and denied trespassing upon the land of the respondent. It was further alleged that sometime after the appellants purchased a tract of land adjoining the respondent's property, that the appellant, Waymon J. Wyatt, disposed of all of his interest in the timber on the land to L. L. Hyder. It is then alleged that L. L. Hyder placed a saw mill on the tract of land owned by the appellants lants for the purpose of sawing the timber thereon, but 'emphatically denies that he, or any of his agents or servants, at any time, ever entered upon any of the lands belonging to or owned by' respondent. The answer further alleged that the appellant Hyder entered into a contract with one Sam Walker to cut the timber on the lands of the appellants, but the said Sam Walker was not his agent or servant in any manner whatsoever, and if he accidentally got over the boundary line of the property owned by the appellants and upon the property of the respondent, that the said acts and doings were unauthorized and unknown to the appellants.

This action came on for trial before Honorable Steve C. Griffith, Judge, and a jury, and resulted in a verdict in favor of the respondent against the appellants for actual and punitive damages. At appropriate stages of the trial, the appellants made motions for a nonsuit and a directed verdict, but such were refused by the trial Judge. This case is before this Court upon exceptions challenging certain rulings of the trial Judge.

The appellants assert that since there were no allegations in the complaint that the alleged trespass was committed by their agents or servants, and there being no evidence that either of the appellants personally trespassed upon the property of the respondent, that the trial Judge should have granted a nonsuit or a directed verdict.

The appellants also assert that the trial Judge committed error in admitting evidence that the trespass charged was committed by their agents or servants, there being no allegations of such in the complaint. The trial Judge is also charged with error in submitting to the jury the question of whether the trespass was committed by agents and servants of the appellants in the absence of appropriate allegations to that effect in the complaint. The practical question for decision is whether it is necessary in pleading a cause of action against a master, principal or employer, based upon a tort committed by his servant, agent or employee, to allege that the wrongful act was committed by a servant or agent, or whether it is sufficient to simply allege that the wrong was done by the principal or master.

We have held that proper consideration of the pleadings in any cause requires that they be considered as a whole. Witherspoon v. Stogner, 182 S.C. 413, 189 S.E. 758. We have also held that pleadings should be liberally construed with a view to doing substantial justice between the parties to the action. Athanas v. City of Spartanburg, 196 S.C. 19, 12 S.E.2d 39, Section 10-602, 1952 Code of Laws of South Carolina.

We have held in actions ex contractu that there is no necessity of alleging that the contract was executed through an agent; in other words, the contract may be pleaded as if it were the contract of the principal without mentioning the agency. Wagener & Co. v. Kirven, 56 S.C. 126, 34 S.E. 18; Carr, et al. v. Moragne, 136 S.C. 218, 131 S.E. 424, 43 A.L.R. 1212.

It has been frequently held that although the complaint in an action ex delicto charges the conduct complained of directly against the principal or master, proof that the tortious acts were committed by the servant or agent does not constitute a variance, and evidence that the wrong was committed by an agent or servant is admissible, and will sustain a recovery in favor of the plaintiff. Saucer v. Willys-Overland, Inc., D.C., 49 F.2d 385; Trawick v. Chambliss, 42 Ga.App. 333, 156 S.E. 268; Cowan v. Cowan, 179 N.C. 695, 102 S.E. 613; Banks v. Watrous, 134 Conn. 592, 59 A.2d 723, 4 A.L.R.2d 286. See annotation following this case at 4 A.L.R.2d 292.

In our own case of Richey v. Southern Ry. Co., 69 S.C. 387, 48 S.E. 285, it was held that where the complaint alleged negligence by a conductor and his railway company, proof of negligence by other servants is admissible. It appears in the cited case that the plaintiff, an employee of the defendant railroad, sued both the railroad and the conductor of the train, on which the plaintiff was the engineer at the time he was injured. It was contended that the trial Judge committed error, in view of the allegations in the complaint, in permitting a recovery upon proof of the negligence of a servant of the railroad, other than the conductor. The Court pointed out, in affirming a judgment for the plaintiff, that the complaint alleged not only negligence on the part of the conductor but also negligence on the part of the defendant railroad.

One of the primary purposes of a complaint is to apprise the opposite party of the nature of the action against him. The complaint should inform the defendant of the matters and things which the plaintiff may attempt to prove against him because without such knowledge the defendant would be unable to prepare his defenses and submit proof thereof at the trial. McCullough v. The American Workmen, 200 S.C. 84, 20 S.E.2d 640. It is also a familiar principle that what is essential to be proved is essential to be alleged. Boling v. Clinton Cotton Mills, et al., 163 S.C. 13, 161 S.E. 195. However, Section 10-693 of the 1952 Code of Laws of South Carolina, provides that no variance between the allegations in a pleading and the proof shall be deemed material unless it shall have actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits. This statute further provides that whenever it shall be alleged that a party has been so misled, that that fact shall be proved to the satisfaction of the Court, and in what respect he has been misled. The trial Judge held when appellants made a motion for a directed verdict on the ground that the complaint failed to allege that the delicts charged against them were done by their agents or servants, that 'As counsel for the defendants frankly admitted, that upon reading of the complaint anybody would know that it wasn't intended to charge that the defendants went out there and did this work personally. * * * Consequently there was no surprise involved.' Additionally, it appears that the appellants are not now in position to question the sufficiency of the allegations of the complaint as to whether the delicts were committed by their agents or servants, in view of the allegations of their answer, wherein they denied that their agents and servants, at any time, entered upon any of the lands belonging to or owned by the respondent. Hence, the issue was squarely raised by the pleadings as to whether the agents or servants of the appellants committed the trespass upon the lands of the respondent. The trial Judge confined the evidence to this issue which was made by the pleadings.

In the case of Brown v. Carolina Midland Ry., 67 S.C. 481, 46 S.E. 283, 284, the plaintiff brought an action to recover from the defendant damages resulting from a fire alleged to have originated within the limits of the right of way of the railroad. The defendant appealed from a judgment in favor of the plaintiff, asserting that the trial Judge committed error in holding that the complaint stated a cause of action for the reason, '(b) In that said complaint does not allege that the fire 'originated in consequence of the act of any of the defendant's authorized agents or employes." The Court affirmed the ruling of the trial Judge, and said:

'The second assignment of error will be found in 'b'. While again, the complaint does not use the very words of the statute, it nevertheless alleges that the fire originated in consequence of the act of the defendant, and this is equivalent to alleging that the fire 'originated in consequence of the act of any of the defendant's authorized agents or employes.' The act of an authorized agent or employe is the act of the principal. 'Qui facit per alium facit per se'.'

Since the appellants expressly denied in their answer, and affirmatively alleged, that the persons committing the trespass upon the lands of the respondent were not their agents and servants, testimony going to show that this was not in accord with the true facts was properly received, even if offered in advance of evidence of the appellants. The respondent had...