Pieper v. Shahid , 101 S.C. 364 ( 1915 )

July 21, 1915. The opinion of the Court was delivered by This was an action for damages for personal injuries commenced by service of a summons and complaint, and attachment of an automobile under the law in such cases made and provided. After service of summons and complaint defendant's attorney filed a demurrer thereto on the ground that it did not state facts to constitute a cause of action in that it does not appear on the face of the complaint that plaintiff suffered any damages by reason of the acts of negligence alleged in the complaint. Upon the hearing of the demurrer, the Circuit Judge overruled the same, and defendant appealed.

The contention of the defendant in substance being that the title of the cause, instead of being W.H. Peiper as guardian ad litem for Violet A. Pieper, should have been Violet A. Peiper by her guardian ad litem, W.H. Peiper, and because of this difference in form, notwithstanding the fact that the body of the complaint clearly shows in what capacity W.H. Peiper is connected with the suit, and also shows that Violet A. Peiper was the party injured, and because of difference in form of title of the cause the substance set out in the complaint must be overlooked, and demurrer sustained and complaint dismissed.

We are of opinion that the exceptions must be sustained. As was said in McCreight v. Aiken, 21 S.C.L. (3 Hill) 338: "The legal relation of a committee to a lunatic is analogous to that of a guardian to his ward. For any trespass to the person or property of a minor an action must be brought in his name by his guardian and why should not an action be brought in the same way for a trespass on the person or property of a lunatic?"

"It is well settled in South Carolina that an action at law for the recovery of the property of a lunatic or damages for its detention must be brought in the name of the lunatic by his committee as in such action he only can recover who has the legal title." Cathcart v. Sugenheimer, 18 S.C. 128.

On the same principle and analogous thereto are the decisions:

"That in making a deed under power of attorney it must be made in the name of the principal and not in the name of the attorney." Prior v. Cotton, 17 S.C.L. (1 Bailey) 517; Welch v. Parish, 19 S.C.L. (1 Hill) 155; Welch v.Usher, 11 S.C. Eq. (2 Hill) Chan. 167; Webster andBrown v. Hammet, 2 S.C. 428; DeWalt v. Kinard, 19 S.C. 287;Johnson v. Johnson, 27 S.C. 311, 3 S.E. 606.

At the same time we are of the opinion that if an application had been made to the Circuit Judge to amend the captions of summons and complaint he would have allowed the amendment, and he certainly had the power to do so under Bank v. Efird, 96 S.C. 18, 78 S.E. 637.

The spirit of this Court is opposed to dismissals of cases on technical grounds and at the sacrifice of substance and substantial rights of parties litigants involved and for this reason while the judgment must be reversed, the cause will be remanded, in order that the plaintiff may be allowed to apply for an amendment to her pleadings, and by a simple transposition of words make the pleadings Violet A. Peiper by her guardian ad litem, W.H. Peiper, instead of W.H. Peiper, as guardian ad litem of Violet A. Peiper. The ends of justice will be attained by this, and the defendant will be fully advertised that he is to contest an alleged claim for injuries inflicted upon Violet A. Peiper by alleged acts of negligence on his part.

Reversed and remanded.

MESSRS. JUSTICES HYDRICK and GAGE concur in the opinion of the Court.