Roundtree v. Charleston & W.C. Ry. Co.

• Citation: 52 S.E. 231,72 S.C. 474
• Parties: ROUNDTREE v. CHARLESTON & W. C. RY. CO.
• Decision Date: 18 October 1905
• Court: South Carolina Supreme Court

52 S.E. 231

72 S.C. 474

ROUNDTREE v. CHARLESTON & W. C. RY. CO.

Supreme Court of South Carolina

October 18, 1905

Appeal from Common Pleas Circuit Court of Hampton County; Klugh Judge.

Action by J. E. Roundtree against the Charleston & Western Carolina Railway Company. From judgment for plaintiff, defendant appeals. Affirmed.

James W. Moore, for appellant. W. B. Smith and W. B. De Loach, for respondent.

GARY A. J.

This is an action for damages alleged to have been sustained by the plaintiff through the negligence of the defendant. The complaint alleges that the plaintiff, at the time of the injury, was employed by the defendant as a section hand on its line of railway; that, while he was trying to load a heavy truck on a flat car, he was overstrained and hernia was produced on account of the willful, wanton, and knowing negligence of the defendant in failing to provide a sufficient number of hands to lift so heavy a weight. The jury rendered a verdict in favor of the plaintiff for $1,500 damages and $450 punitive damages. The defendant made a motion for a new trial on the minutes of the court. The presiding judge granted an order that, unless the plaintiff should remit upon the record all except $1,500 of the verdict, there should be a new trial, as there was no testimony to sustain a verdict for punitive damages. The plaintiff remitted on the record all in excess of $1,500.

1. The defendant appealed upon exceptions, the first of which assigns error on the part of his honor, the presiding judge in refusing the motion for a nonsuit on the ground that there was no testimony tending to show that the plaintiff was injured while loading a truck, but was injured while loading the wheels of a truck. In refusing the motion for nonsuit, the presiding judge said: "Trucks being a technical expression, the meaning of which is known to railroad men, it may or may not mean the four wheels coupled together; and I will leave it to the jury to say whether the railroad was negligent in the manner alleged. As a matter of fact, I do not think it would be taking one by surprise to amend the complaint to conform to the proof."

Sections 190, 191, and 192 of the Code of Civil Procedure of 1902 are as follows:

"Sec. 190. No variance between the allegation in pleading and the proof shall be deemed material, unless it have actually misled the adverse party, to his prejudice, in maintaining his action or defense, upon the merits. Whenever it shall be alleged that a party has been misled, that fact shall be proved to the satisfaction of the court, and in what respect he has been misled; and thereupon the court may order the pleading to be amended, upon such terms as shall be just.

Sec. 191. Where the variance is not material, as provided in the last section, the court may direct the fact to be found according to the evidence, or may order an immediate amendment without costs.

Sec. 192. Where, however, the allegation of the cause of action or defense to which the proof is directed is not proved, not in some particular or particulars only, but in its entire scope and meaning, it shall not be deemed a case of variance within the last two sections, but a failure of proof."

The appellant contends that this case comes within the provisions of section 192. These sections were construed in the case of Ahrens v. Bank, 3 S. C. 401, 410, as follows "Under section 192 [190], no variance is to be regarded as material, unless it has actually misled the party, and in that case his remedy is to satisfy the court immediately, by proof by affidavit, that he has been so misled. The effect of such proof is not to prevent the court from allowing an amendment to such case, but to entitle the party prejudiced by such amendment either time or such other compensatory terms and conditions as may be reasonable. The object of the Code is to secure to parties acting in good faith the fullest right to rectify by amendment any defect in pleading the result of misapprehension, inadvertence, or accident, but at the same time to protect, as far as possible, the substantial rights of the party prejudiced by such amendment. If the party prejudiced by such...