Proctor v. Southern Ry.

• Decision Date: 04 September 1902
• Citation: 42 S.E. 427,64 S.C. 491
• Parties: PROCTOR v. SOUTHERN RY.
• Court: South Carolina Supreme Court

42 S.E. 427

64 S.C. 491

PROCTOR v. SOUTHERN RY.

Supreme Court of South Carolina

September 4, 1902

Appeal from common pleas circuit court of Greenwood county Townsend, Judge.

Action by John M. Proctor against the Southern Railway. From the circuit order refusing motion to amend complaint, plaintiff appeals. Affirmed.

Graydon & Giles, for appellant. T. P. Cothran, for appellee.

JONES J.

The appeal herein is from an order refusing to grant an amendment to the complaint. The paragraph of the complaint sought to be amended is as follows: "(4) That the plaintiff, seeing that the said engine and train of freight cars attached thereto had come to a full stop, then drove his wagon and team back into the said public road, and attempted to pass the said engine and train of freight cars attached thereto while standing; but as soon as the plaintiff approached near and opposite to the said engine, he being in the said public road, the defendant, its agents, servants, and employés, who were in charge of said engine and train of freight cars attached thereto, and being in full and plain view of the plaintiff and his wagon and team, with intent to frighten and scare the plaintiff's team and injure the plaintiff willfully and wantonly and recklessly, and not regarding the rights of the plaintiff in that regard, let off steam from said engine, so that the said team of mules became frightened and unmanageable, and were made to run away, and threw the plaintiff out of said wagon, and the wheels of said wagon were made to pass over the body of the plaintiff, inflicting serious and painful wounds and bruises on the plaintiff's back, foot, and injuring the plaintiff internally so that he became ill and sick, and for a long time was unable to attend to his business, and was confined to his bed, and suffered intense pain from the injuries to his left kidney; and he fears that from the effects of said injuries he will never be well and strong again." The amendment proposed was to strike out the words "with intent to frighten and scare the plaintiff's team and injure the plaintiff willfully, wantonly, and recklessly, and not regarding the rights of the plaintiff in that regard, let off steam from said engine," and insert in lieu thereof the following words: "willfully, wantonly, recklessly negligently, and carelessly, and without regard to the rights of the plaintiff, let off steam from said engine in an unusual and unnecessary manner and in large quantities." On the former appeal in this case (61 S.C. 170, 39 S.E. 351) this court held the complaint only alleged a willful tort and that the plaintiff could not recover for mere negligence. The object of the proposed amendment was to change the complaint so as to permit a recovery not only for a willful tort, but for negligence. The order refusing the amendment was in these words: "In the above-stated action a motion was made before me at Greenwood, S. C., at the August term, 1901, to amend the complaint in several particulars. The first I allow with hesitation, but the second--the really important one--I cannot allow. At the hearing I thought that the amendment might be allowed under the act of 1898 (22 St. at Large, p. 693), and reserved my opinion, in order that I might consider the matter more thoroughly. On examination of said act, however, and of recent opinion of the supreme court in this same case, I conclude that the amendment asked for cannot be allowed, and it is so ordered."

Appellant contends that the single question presented by this appeal is, "Did the presiding judge err in holding that he had no power to allow the plaintiff to amend his complaint?" We do not so construe the order, for in the same order another amendment was allowed. All that the judge meant by the language used was that the particular amendment proposed was not one which he could properly allow. In this, we think he was right. The Code does not authorize the insertion of a new cause of action by way of amendment. The amendment proposed should be material to the case which has been defectively stated, and must not substantially change the cause of action. Section 194 of the Code of Civil Procedure, which has been construed and applied in numerous cases, among which see Trumbo v. Finley , 18 S.C. 305; Whaley v. Stevens, 21 S.C. 221; Kennerty v. Phosphate Co., Id. 240, 53 Am. Rep. 669; Skinner...