Mims v. Atlantic Coast Line R. Co.
| Decision Date | 03 April 1915 |
| Docket Number | 9042. |
| Citation | 85 S.E. 372,100 S.C. 375 |
| Parties | MIMS v. ATLANTIC COAST LINE R. CO. ET AL. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Richland County; R. W Memminger, Judge.
Action by Lizzie M. Mims, as administratrix of the estate of John J Mims, deceased, against the Atlantic Coast Line Railroad Company and another. From a judgment for plaintiff defendants appeal. Affirmed.
P. A Willcox, of Florence, L. W. McLemore, of Sumter, and Barron, McKay, Frierson & Moffatt, of Columbia, for appellants.
Nelson, Nelson & Gettys, of Columbia, and J. H. Clifton, of Sumter, for respondent.
This was an action by plaintiff, as administratrix, for the benefit of herself and her four minor children, to recover damages for the death of her husband on December 19, 1910, caused by the alleged joint and concurrent carelessness, negligence, recklessness, willfulness, and wantonness of the defendants. This is the second appeal in the case. In the first case, at the close of all the testimony, his honor, Judge Spain, granted a nonsuit, which upon appeal was reversed. The decision on the first appeal is reported in 95 S.C. 370, 78 S.E. 1031. The suit was brought under what is commonly known as the Lord Campbell's Act. The allegations of the complaint and answer do not show that plaintiff's intestate was engaged in interstate commerce at the time he was killed, and during the time of the first trial, and in the appeal therefrom, no mention is made by the defendants of the act of Congress known as the federal Employers' Liability Act. Not only was no mention made of the federal act during the first trial and appeal, although it was as available to the defendants on the first trial as the second, but it appears at the second trial the defendants obtained leave over objection of the plaintiff and were permitted to amend their answer by setting up the defense of willful and gross contributory negligence on the part of the plaintiff's intestate under the South Carolina statute. The second trial was had before Judge Memminger and a jury, and resulted in a verdict in favor of plaintiff for $16,000. As soon as plaintiff's case was closed, the counsel for defendants announced that train 46, which plaintiff's intestate was inspecting while killed, was engaged in interstate commerce, and that they would introduce testimony to show that, in the inspection of this train and otherwise, the plaintiff was engaged in commerce between the states, and consequently the statute under which plaintiff was bringing her case had been suspended by the act of Congress of the United States, known as the federal Employers' Liability Act April 22, 1908. The court refused to allow the defendants at that time, under the pleadings, to raise this issue, and refused to admit any testimony in regard thereto. The court also refused to direct a verdict in favor of defendants as asked for. After entry of judgment, defendants appeal.
Exceptions 1 and 2 allege error on the part of the presiding judge in refusing to allow certain testimony, which the appellants contend would show that, when plaintiff's intestate was killed, he was engaged in interstate commerce, and in refusing to allow testimony which defendants' counsel stated they would offer for the purpose of bringing the case under the Employers' Liability Act, and the remarks of the judge at that time. His honor took the position that the testimony was irrelevant and not responsive to the pleadings and not an issue in the case; that the case had been passed upon by the Supreme Court and an amendment over objection of plaintiff allowed just before proceeding with the second trial. After the plaintiff's testimony was all in, for the first time it seems to have occurred to the defendants that they wanted to avail themselves of the federal statute (Employers' Liability Act). The facts in every case should be pleaded.
Whenever the pleadings show facts pleaded that the case is one that can be tried either under the federal or state law, then the court can try it under either law. When the pleadings show facts that bring it under the federal law, it must be tried under the federal law; and, when the pleadings show it is brought under the state law, it must be tried under that law.
The complaint was filed April 5, 1911, and alleges deceased was killed December 19, 1910, and alleges defendants controlled and operated its railroad in the counties of Sumter and Richland and cities of Sumter and Columbia, S. C., and it nowhere alleges that the defendants operated its road in any other state than South Carolina, and there is no allegation in the complaint whereby it could be inferred that defendant railroad was engaged in interstate commerce, but the complaint clearly...
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