Schumpert v. Southern Ry. Co.

• Decision Date: 16 March 1903
• Citation: 43 S.E. 813,65 S.C. 332
• Parties: SCHUMPERT v. SOUTHERN RY. CO. et al.
• Court: South Carolina Supreme Court

43 S.E. 813

65 S.C. 332

SCHUMPERT v. SOUTHERN RY. CO. et al.

Supreme Court of South Carolina

March 16, 1903

Appeal from Common Pleas Circuit Court of Newberry County; Gary Judge.

Action by James C. Schumpert against the Southern Railway Company and John Hutchison. Judgment for plaintiff. Defendants appeal. Affirmed.

T. P Cothran, for appellants. Johnstone & Welch, for respondent.

JONES J.

The plaintiff brought this action to recover damages for personal injuries sustained by him in a head-end collision at Belton S. C., February 18, 1901, between two trains of the defendant company, on one of which plaintiff was engineer and on the other the defendant Hutchison was engineer. The circuit court, after trial and verdict, rendered judgment against both defendants for $10,000, which is now sought to be reversed upon the following grounds:

1. Alleged error in refusing to sustain the demurrer to the complaint. For this question it will be sufficient to set out the thirteenth and fourteenth allegations of the complaint "(13) That the said loss, injury, and damage to the plaintiff was caused in the following manner, to wit: First. In the failure of the defendant Southern Railway Company to properly make the air-brake attachments and connections upon train No. 68, after, as before set out, the several cars composing this train had been shifted at Williamston, and in thus failing to do its duty as laid down and prescribed in the rules of said company covering such matters, as it was in law duty bound to have done. Second. In the use and occupancy by the Anderson Branch engine and cars of said main line upon the time and schedule of the regular train No. 68, without taking the necessary and required protections and precautions as prescribed in the said rules covering such matters, and in the law the defendants were duty bound to have done. Third. And in meeting train No. 68 with the said Anderson Branch engine and cars upon the said main line, when it was or should have been known that the said train was approaching the said station of Belton, and was due to approach the same. (14) That the aforesaid loss and injury and damage to the plaintiff done and occasioned in the manner aforesaid was caused by the joint and concurrent willful misconduct, gross negligence and inattention to duty on the part of the defendants. ***" The ground of demurrer is that the complaint does not state facts sufficient to constitute a cause of action, in that the complaint charges that the acts complained of were both willful and negligent, this being an impossibility. When analyzed, this objection goes to the manner of stating traversable facts, and not to any omission of an averment necessary to constitute a cause of action. Considered with reference to an action for willful tort, the complaint states a cause of action, for the acts of wrong are stated and are characterized as willful. Considered as action for mere negligence, a cause of action is stated, for the acts complained of are stated and characterized as carelessly or negligently done. The objection merely presents a case of repugnancy or inconsistency in the manner of statement, and is to be remedied, if at all, by a motion to make definite and certain, and not by general demurrer for insufficiency, which, according to Bliss on Code Pleading, § 413, is proper when the complaint "shows that no legal wrong has been done, or that the law will not redress it, or that the party has mistaken his remedy, or when there has been an omission of some material averment necessary either to establish the wrong or to so connect the parties with it as to entitle the plaintiff to redress." The act of 1898, now incorporated in the Code of Civil Procedure as section 186a, prevents from securing any very scientific method of pleading in actions ex delicto, when two or more acts of negligence or other wrongs are set forth in the complaint as causing or contributing to the injury for which the suit is brought. Under this statute, acts of negligence and acts of willful tort may be commingled in one statement as causing the injury, and the adverse party cannot require a separate statement of such acts of negligence, or willful tort or other wrongs, nor an election upon which the plaintiff will go to trial. Boggero v. Southern Ry., 64 S.C. 104, 41 S.E. 819; Proctor v. Southern Ry., 64 S.C. 494, 42 S.E. 427.

2. The exceptions to the refusal of the motion for nonsuit and some of the exceptions to the charge raise the question whether the master and servant are liable as joint tort feasors for the tort of the servant committed within the scope of his employment and while in the master's service. The complaint alleged that plaintiff's injury was the result of the "joint and concurrent willful misconduct, gross carelessness and negligence, and inattention to duty on the part of the said defendants." The evidence tended to show that the injury was occasioned by a collision between the train on which the defendant Hutchison was engineer and the train on which plaintiff was engineer, resulting from the negligence or misconduct of Hutchison in moving his engine and train from the Anderson Branch line upon the main line, without protection against the regular freight train on which plaintiff was engineer, which at the time of the collision was within its time, and due at any moment. A rule of the defendant company required that "engines working within these limits may use the main track, keeping out of the way of all regular trains, but they must not occupy the main track on the time of such regular trains, except under proper protection." There was some evidence tending to show, and the jury made special finding, that plaintiff was operating his engine and train with the care due under the circumstances, and that train No. 58, with Hutchison as engineer, was upon the main line without flagman, and without protection, in violation of the rule and the custom. Appellants do not dispute the proposition that the master is liable for the negligence of the servant within the scope of his employment, nor do they dispute that the servant is also liable for his own tort. The contention is that there is no joint liability unless the master directs or is present, actively co-operating with the servant in the commission of the tort. There is undoubtedly some authority for this view, as shown by the cases cited in appellants' brief, and by reference to the citations found in 15 Ency. Pl. & Pr. 560, 561, and the note in 28 L. R. A. 441, 442. The leading case for such view is Parsons v. Winchell, 5 Cush. 592, 52 Am. Dec. 745, wherein the court held that master and servant are not jointly liable for servant's negligence in the master's absence in so driving a team as to cause an injury to another. In the view of that court, "the act of a servant is not the act of the master, even in legal intendment or effect, unless the master previously directs or subsequently adopts it. In other cases he is liable for the acts of his servant, when liable at all, not as if the acts were done by himself, but because the law makes him answerable therefor." The principal reason assigned for this view is that, if master and servant were made jointly liable, the master could not call on the servant for contribution in case he should satisfy the execution. But as it appears in the note to the

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