Pendleton v. Columbia Ry. Gas & Electric Co.

• Decision Date: 30 June 1925
• Docket Number: 11794.
• Citation: 128 S.E. 711,132 S.C. 507
• Parties: PENDLETON v. COLUMBIA RY., GAS & ELECTRIC CO. ET AL.
• Court: South Carolina Supreme Court

128 S.E. 711

132 S.C. 507

PENDLETON v. COLUMBIA RY., GAS & ELECTRIC CO. ET AL.

No. 11794.

Supreme Court of South Carolina

June 30, 1925

Appeal from Common Pleas Circuit Court of Richland County; R. W Memminger, Judge.

Action by R. L. Pendleton against the Columbia Railway, Gas & Electric Company and another. From orders refusing motions to require plaintiff to make complaint more certain, and to elect between separate and joint acts of negligence alleged defendants appeal. On motion to dismiss appeal. Appeal dismissed in part and motion refused in part.

R. B Herbert, of Columbia, for appellants.

Frank G. Tompkins and Heyward Brockinton, both of Columbia, for respondent.

COTHRAN J.

This is a motion by the plaintiff, respondent, to dismiss the appeal of the defendants, appellants, from an order of the circuit court refusing the motions of the defendant: (1) To require the plaintiff to make his complaint more definite and certain, by setting out specifically the city ordinances and rules referred to in the complaint, the breach of which, generally stated, is charged as negligence; (2) to require the plaintiff to make his complaint more definite and certain by setting out specifically the improvements and appliances referred to in the complaint, the failure to furnish which, generally stated, is charged as negligence; (3) to require the plaintiff to elect as between the separate and several acts of negligence charged to the defendants and the joint acts of negligence charged to them. The motion to dismiss is made upon the ground that the order refusing the defendant's motion is not appealable and that the appeal is frivolous.

1. As to so much of the order as refused to require the plaintiff to make his complaint more definite and certain: It has been uniformly held that such an order is not appealable before final judgment (Fladger v. Beckman, 42 S.C. 547, 20 S.E. 790; Pickett v. Fidelity Co., 52 S.C. 584, 30 S.E. 614; Dawkins v. Columbia Co., 82 S.C. 166, 63 S.E. 746; Miles v. Light Co., 87 S.C. 254, 69 S.E. 292), unless the order involves the merits, as was held in Hawkins v. Wood, 60 S.C. 521, 39 S.E. 9, Jumper v. Lumber Co., 119 S.C. 171, 111 S.E. 881, and Matheson v. Telegraph Co., 125 S.C. 297, 118 S.E. 617, which were cases where the matter involved was the right of the defendant to have the causes of action separately stated, one involving the merits, and in which the orders for that reason were held appealable before final judgment.

It is conceivable that a case might be presented in which the order refusing the motion to make more definite and certain might be immediately appealable, for instance, where the complaint makes a general charge of negligence, and the defendant moves to have the complaint made more definite and certain, by alleging the particular acts of negligence relied upon; for, in the absence of such motion, the plaintiff may offer evidence of any act of negligence, against which the defendant may not be prepared to defend. Spires v. Railway Co., 47 S.C. 28, 24 S.E. 992.

We think, however, that the order did not involve the merits, and that the case falls within the rule announced in the cases of Lynch v. Spartan Mills, 66 S.C. 12, 44 S.E. 93; Moore v. Power Co., 68 S.C. 201, 46 S.E. 1004; Hughes v. Mfg. Co., 81 S.C. 354, 62 S.E. 404; Epstin v. Berman, 78 S.C. 327, 58 S.E. 1013; Cooper v. Railway Co., 78 S.C. 562, 59 S.E. 704; Hix v. Belton Mills, 69 S.C. 273, 48 S.E. 96.

2. As to so much of the order as refused to require the plaintiff to elect between the separate and several acts of negligence charged to the defendant and the joint acts of negligence charged to them: The rule appears to be this: If a complaint contains separate and independent acts of negligence on the part of two or more tort-feasors, capable severally of producing the result complained of,...