Lentz v. Carolina Scenic Coach Lines

• Decision Date: 18 April 1946
• Docket Number: 15830.
• Parties: LENTZ v. CAROLINA SCENIC COACH LINES et al.
• Court: South Carolina Supreme Court

38 S.E.2d 11

208 S.C. 278

LENTZ v. CAROLINA SCENIC COACH LINES et al.

No. 15830.

Supreme Court of South Carolina

April 18, 1946

Osborne, Butler & Moore, of Spartanburg, and J Raymond Flynn, of Union, for appellants.

C. T. Graydon and John Grimball, both of Columbia and Young & Long, of Union, for respondent.

STEVE C. GRIFFITH, Acting Associate Justice.

This action was instituted in Union County to recover damages for the alleged wrongful death of plaintiff's intestate.

It is alleged in the complaint that all of the defendants constitute a partnership, operating busses as public carriers under their trade name of Carolina Scenic Coach Lines; that one of the defendants, Hamish Turner individually, operates busses as a public carrier under the trade names of Carolina Stages and Carolina Scenic Trailways. For convenience the former will be referred to hereinafter as the 'partnership defendants' and the latter as the 'individual defendant'.

Upon the service of the complaint the partnership defendants and the individual defendant filed separate motions to make the complaint more definite and certain in the following particulars:

'1. By alleging specifically whether it is claimed plaintiff's intestate was a passenger on a bus of defendants or on a bus of these defendants' co-defendant Carolina Stages, Hamish Turner, owner.

'2. By alleging specifically and with particularity in what respects it is claimed that these defendants are liable to the plaintiff, as distinguished from general and confused statements of the alleged liability of both these defendants and these defendants' co-defendant, Carolina Stages, Hamish Turner, owner.'

These motions came on for hearing before His Honor T. S. Sease, who passed an order granting the motions as to Specification No. 1, and refusing the motions as to Specification No. 2.

Thereupon, plaintiff filed an amended complaint, to comply with the order of Judge Sease, wherein she alleged, after setting out that the partnership defendants operate as Carolina Scenic Coach Lines, and the individual defendant, as Carolina Stages and Carolina Scenic Trailways, 'that the defendants used the names Carolina Scenic Coach Lines, Carolina Scenic Trailways, and Carolina Stages, all designating bus lines, as trade names, and that the true ownership of each and every line is unknown to these plaintiffs; that the defendants trade or operate in the names hereinbefore set forth and that the plaintiff sues the busses herein referred to that were involved in the accident hereinafter set forth.

'3. That Jacob F. Lentz became a passenger on one of the busses of Carolina Scenic Coach Lines, this plaintiff is informed and believes, although at the inquest over the body of Jacob F. Lentz, the driver of said bus swore that the same belonged of the Carolina Scenic Trailways, on or about the 19th day of August, 1944, and was actually a passenger upon said bus at the time of the injury to the said Jacob F. Lentz hereinafter described.'

Upon the filing of the amended complaint the partnership defendants and the individual defendant again filed separate motions in which they sought to have the Circuit Court to order:

First, That the amended complaint be dismissed for failure to comply with Judge Sease's order;

Second, failing in the above, that certain allegations of the amended complaint be stricken;

Third, That the amended complaint be made more definite and certain in particulars specified.

Along with those motions the defendant also filed separate demurrers to the amended complaint on the ground that it does not state facts sufficient to constitute a cause of action, reserving their rights to press their motions.

These motions and demurrers were heard by His Honor Wm. H. Grimball, who, after observing that 'there is much to be said on both sides', but without further discussion, overruled the motions and demurrers.

The defendants have appealed to this Court upon forty-three exceptions. In the view that we take of the matter, the questions raised by this appeal are not nearly so numerous, and will be adequately covered by what is hereinafter said.

At the outset, plaintiff takes the position that an appeal does not lie from an order refusing a motion to strike a part of a pleading. Our cases have consistently so held, and the exceptions relating to that matter will not be considered. Bowden v. Powell, 194 S.C. 482, 10 S.E.2d 8, and cases therein cited.

The parties agree that a motion to make more definite and certain is not appealable until final judgment unless the motion involves the merits or deprives the movant of a substantial right (Weldon v. Southern Ry., 167 S.C. 526, 166 S.E. 723, Spurlin v. Colprovia Products Co., 185 S.C. 449, 194 S.E. 332), but they do not agree as to whether the motions here come within the class that are appealable prior to final judgment. Inasmuch as this case is properly here on appeal from the order overruling the demurrers, we will pass upon the exceptions relating to the motions to make more definite and certain, without deciding whether or not they are appealable at this time. This Court, as a matter of grace, has heretofore passed upon such exceptions under similar circumstances. Miles v. Charleston Light & Water Co., 87 S.C. 254, 69 S.E. 292.

Coming to a consideration of the questions to be decided, as we view the matter the errors imputed to Judge Grimball in refusing defendants' motions to dismiss the amended complaint for failing to comply with Judge Sease's order, and the errors charged to both of the Circuit Judges in refusing to make each complaint more definite and certain, are all embraced in, and will be disposed of by, answering the one question, Does the amended complaint allege with sufficient definiteness what defendants or defendant are sought to be held liable?

The complaint alleges, in substance, that plaintiff's intestate, while riding on one bus, passed another bus going in the opposite direction, and a passenger in the latter bus threw a bottle out of a bus window which came through a window of the bus in which plaintiff's intestate was riding, striking him and resulting in his death. So the question that we are to determine is, Does the complaint allege who owned the busses? Judge Sease has held that the plaintiff must allege who owned the bus on which the deceased met his death, and it is necessary to determine who owned the bus from which the bottle was thrown in passing upon the other motions in the case.

From a reading of that portion of the complaint hereinbefore quoted we think it clear that it is definitely alleged that from the plaintiff's information and belief the bus on which the deceased rode was the bus of the partnership defendants. It is alleged that he 'became a passenger on one of the busses of Carolina Service Coach Lines, this plaintiff is informed and believes, * * * and was actually a passenger upon said bus at the time of the injury * * *.'

It had been previously alleged that Carolina Scenic Coach Lines is the trade name of the partnership defendants. It is true that it had been previously alleged that the defendants use three trade names, of which two are the trade names of the individual defendant, and that the true ownership of each line is unknown to plaintiff. It is also true that the complaint alleges that at the inquest over the body of the deceased the driver of the bus on which the deceased last rode testified that that bus was the property of the Carolina Scenic Trailways, the trade name of the individual defendant. Both of the last mentioned allegations, we think, were unnecessary and should be considered surplusage. But taking all of the allegations together they are fairly summed up in meaning, that from the best information plaintiff has obtained she believes that the bus referred to was a bus of the partnership defendants, although some doubt exists by reason of the practices of the defendants and the testimony of one of their agents. In other words, the doubt has been created by the defendants. Apparently these allegations were made so that in the event the proof shows that the individual defendant was the owner of the bus he could not claim surprise. We think that the allegations were unnecessary even for that purpose, because the individual defendant is a member of the partnership, and, consequently, could not claim surprise from proof peculiarly within his knowledge.

We conclude, therefore, that the amended complaint alleges that the bus on which the deceased rode was the bus of the partnership defendants, and complies with Judge Sease's order.

As to the ownership of the other bus, this complaint alleges in almost identical manner that it was the bus of the partnership defendants. Consequently, the motions of the defendants to make the complaint more definite and certain were properly overruled, as these motions were based upon the idea that the complaint was subject to the construction that one of the busses belonged to the partnership defendants and the other to the individual defendant. And inasmuch as we construe the complaint as alleging that both busses are owned by the partnership defendants, and all acts of negligence are charged against those defendants, the motions are without merit.

Furthermore, all of the allegations sought to be made more definite and certain refer to facts that are peculiarly within the knowledge of the defendants, and under such circumstances, it is well settled, that the opposing party is not required to plead with particularity or certainty. Spurlin v. Colprovia Products Co., 185 S.C. 449, 194 S.E. 332, Beard v. Paul Motor Co., 166 S.C. 289, 164 S.E. 837.

This brings us to a consideration of the exceptions imputing error to the Circuit...