Israel v. Carolina Bar-B-Que, Inc.

• Decision Date: 17 December 1986
• Docket Number: BAR-B-QU,No. 0922,B-Q,INC,0922
• Citation: 292 S.C. 282,356 S.E.2d 123
• Court: South Carolina Court of Appeals
• Parties: Charlotte H. ISRAEL, Respondent, v. CAROLINA, and Andrew Berry, Trustee of Berrywoods Trust, Defendants, appellants being Carolina Bar-ue, Inc. and Berry Brothers Trust, against which verdict was rendered, referred to in judgment as Andrew Berry, Trustee of Berry Brothers, Inc., Appellants. . Heard

Page 123

356 S.E.2d 123

292 S.C. 282

Charlotte H. ISRAEL, Respondent, v. CAROLINA BAR-B-QUE, INC., and Andrew Berry, Trustee of Berrywoods Trust, Defendants appellants being Carolina Bar-B-Que, Inc. and Berry Brothers Trust, against which verdict was rendered referred to in judgment as Andrew Berry Trustee of Berry Brothers Inc., Appellants.

No. 0922.

Court of Appeals of South Carolina.

Heard Dec. 17, 1986.

Decided April 6, 1987.

Berry Brothers Trust, pro se.

Andrew Berry, trustee, Orangeburg; Charles E. Carpenter, Jr., and R. Davis Howser, Richardson, Plowden, Grier & Howser, Columbia, for appellants.

James F. Walsh, Jr., Orangeburg, for respondent.

GARDNER, Judge.

Charlotte H. Israel (Israel) sued for injuries she received on April 3, 1982, when a large limb from a tree on property owned by Andrew Berry, Trustee, fell over and onto the car in which Israel was seated and which was parked in the parking area of a drive-in restaurant located on property of Carolina Bar-B-Que, Inc., (BBQ). The jury awarded an $80,000 verdict against both defendants; on post-verdict motions for a new trial nisi, the verdict was reduced to $60,000. We reverse as to BBQ and affirm as to Berry.

The Berry lot is 173 by 135 feet, on which there were a number of trees. ¹ Some large water oaks, planted in or about 1911, were located about 25 to 30 feet from the BBQ property line. These trees had received a radical pruning in 1971. Pictures of record show visible signs of decay and rot in one of these trees.

Some smaller oaks, planted about 1955, were located some 4 to 10 feet from the property line, between the large water oaks and the BBQ parking lot. These trees were described as being bushy with some limbs overhanging BBQ property, and having trunks of no more than 12 inches in diameter. A picture of record shows these trees in their relation to the BBQ parking lot. BBQ's owner occasionally pruned branches off those trees which overhung his parking lot.

It appears undisputed that the limb which hit the car came from one of the large water oaks; the limb was described as having a diameter of between 12 and 25 inches. The limb was so large that the Israel car was, in effect, totally destroyed.

BBQ's manager testified that no limbs from the large tree were overhanging BBQ's property. He testified further that he noticed no decayed limbs on these trees. BBQ's owner testified similarly and further that the branches of the large trees were no closer than 15 feet from the BBQ property, and the limb which fell ran "parallel to the lot." He surmised that the high winds that day "pushed [the limb] out" onto the BBQ property. He also testified that when he later removed the trees on this lot, he discovered only one tree in "bad shape" and it was not the tree from which the limb fell.

Police Officer Terry M. Stevens investigated the accident and was Israel's key witness. He testified that the limb was a large limb about 25 feet long and that he saw a tree from which the limb apparently came. He, however, admitted that he could not testify that there was a decayed portion of the limb visible from the BBQ lot. We quote from the cross examination of Stevens:

Q. I am referring to the limb--

A. All right.

Q. --that you say apparently fell from the tree. was thEre a decayed portion on the limb--

A. Yes, sir.

Q. --that would have been visible from the ground prior to the time that the limb fell?

A. That's kind of hard to say. As far as, you know, looking up. From where I was it would depend upon as to the position that the limb was in on the tree.

Q. So you don't know whether or not there was a decayed portion that could have been seen from the ground prior to the time that the limb fell?

A. No, sir, I don't. I cannot say that because I don't know the exact location, how it was stationed on the tree.

Stevens was standing on the BBQ lot. His testimony that the limb could not have been seen related to only the BBQ lot and not the Berry property; the tree could have been inspected from all views from the Berry property.

The only issues of merit presented are whether (1) the trial judge erred by allowing an amendment during trial by changing the name of Defendant Berry, Trustee of Berrywoods Trust, to Berry, Trustee of Berry Brothers Trust and (2) the trial judge erred in not directing a verdict as to the liability both as to BBQ and Berry.

First, we find no error in the trial judge's amending the capacity in which Berry was sued. The suit was commenced against Berry, Trustee of Berrywoods Trust. During the trial of the case, Israel's counsel made a motion to amend the pleadings to include as a defendant Andrew Berry, Trustee of Berry Brothers Trust, in addition to Andrew Berry, Trustee of Berrywoods Trust. Berry objected to this motion on the grounds that he was trying the case against Berrywoods Trust. The trial judge granted the motion to amend, by substituting Berry Brothers Trust for Berrywoods Trust, ruling "I am not catching anybody by surprise."

Later, the trial judge, although he decided against Berry on this issue, stated in his order settling the record:

At the time of the motion, I conceived of the motion as a clerical change to correct the identity of an incorrectly named party. Now, upon review of the actual motion as made and as granted, I recognize that instead of simply making a clerical correction I did in fact add an additional party defendant to the case in the middle of the trial and this may have been error.

The ruling of the trial judge was at the time controlled by Section 15-13-920, ² Code of Laws of South Carolina (1976), which provides in pertinent part:

The court may, before or after judgment in furtherance of justice and on such terms as may be proper, amend any pleading, process or proceeding by (a) adding or striking out the name of any party....

This section has been construed to allow amendments during or after trial only if the amendment does not substantially change the nature of the cause of action or the defense. Gasque v. Voyager Life Ins. Co. of South Carolina, 288 S.C. 629, 344 S.E.2d 182 (Ct.App.1986); Grist v. Caldwell, 123 S.C. 240, 116 S.E. 448 (1923). It has been held that it is within the discretion of the court to allow an amendment to a complaint converting it from an action against a co-partnership to one against the individual members thereof. Baker v. Hornik, 51 S.C. 313, 28 S.E. 941 (1898). And there are many cases authorizing an amendment to show a correct corporate name where an incorrect name had previously been used. Sentell v. Southern Railway Co., 67 S.C. 229, 45 S.E. 155 (1903); see also Section 15-13-920 and the cases cited in case note 23.

Berry admitted that as trustee for Berry Brothers Trust, it was his responsibility to manage and control the property. Berry was not taken by surprise; he knew the factual situation of the case; he knew it involved the falling limb from property which he managed and controlled. He was not taken by surprise by the factual situation of the case, which was not changed by changing the capacity in which Berry was sued; and the nature of his defense was not changed.

Berry was the trustee in charge of management and control of the property although he was one of two or more trustees of the Berry Brothers Trust, who held the legal title of the property as co-tenants. We quote from 86 C.J.S. Tenancy in Common Section 143 (1975) the following:

Tort. In an action sounding in tort, either all or any of the tenants in common as tort-feasors may be sued. Accordingly, where a tort has been committed by one tenant in common, for himself and as agent for his cotenants, within the scope of his agency, all of such cotenants are liable and may be made parties defendant. On the other hand, where one of several tenants in common is in control of common property at the time of alleged negligence resulting in injuries to a third person, such tenant may be sued separately. [Emphasis added.]

We find no merit to Berry's contention that Berry, as trustee for Berry Brothers Trust, was not served with a summons. Berry continued to defend the suit after the trial judge permitted the amendment to change the capacity in which Berry was sued. The voluntary appearance of a defendant is equivalent to personal service of a summons upon him. See Section 15-9-70, Code of Laws of South Carolina (1976), ³ which was in effect at the time of the trial of this case; Stickland v. Consolidated Energy Products Co., 274 S.C. 554, 265 S.E.2d 682 (1980).

Under the above authorities, we find no error in the complained of amendment during the course of the trial and so hold.

This court in passing upon motions for directed verdict and post-verdict motions for a new trial absolute must view the evidence and all reasonable inferences therefrom in a light most favorable to the non-moving party. Smith v. Harris-Teeter Supermarkets, Inc., 285 S.C. 445, 330 S.E.2d 316 (Ct.App.1985).

We now address Berry's contention concerning liability. At common law Berry would not have been liable for a falling tree or limb. But under modern authorities, we think the liability does exist. We quote from Prosser and Keaton On the Law of Torts, Chapter 10, Section 57, at 391 (5th ed. 1984), the following:

The rule of non-liability for natural conditions was obviously a practical necessity in the early days, when land was very largely in a primitive state. It remains to a considerable extent a...