July 17, 1901. The opinion of the Court was delivered by
This was an action brought by the plaintiff to recover damages for injuries sustained by reason of the alleged wilful, wanton and reckless conduct of the servants and agents of the defendant company. The allegations of the complaint, which should be fully set out by the Reporter in his report of the case, may be stated briefly as follows: that on the 13th day of September, 1899, the plaintiff while driving his wagon, drawn by two mules, along the public road, which ran very near the railroad track of the defendant company, seeing a freight train approaching, drove out of the public road and away from the defendant's track, for the purpose of allowing the said train to pass not so near plaintiff's wagon as it would have been if the plaintiff had remained in the public road, when the officers and agents in charge of said freight train stopped said train; that plaintiff seeing that the train had stopped, drove his wagon back into the public road, with a view to pass said train while it was stopped; but as soon as the plaintiff had approached near and opposite to the engine drawing the train, he being in the public road, those in charge of the train, being in full and plain view of the plaintiff and his wagon, with intent to frighten and scare plaintiff's mules and injure the plaintiff, wilfully, wantonly and recklessly, and not regarding the rights of the plaintiff, let off steam from the engine, blew the whistle, so that the mules became frightened and unmanageable, and were made to run away, whereby plaintiff was thrown from the wagon, which caused serious injuries to plaintiff, specified in the complaint. The defendant answered, denying each and every allegation in the complaint.
The case came on for trial before his Honor Judge Benet, and a jury, and after the pleadings were read, his Honor,
as seems to be his custom, delivered a preliminary charge to the jury, in which, as we understand it, he stated to the jury fully and clearly the issues which they were called upon to try, but, as we shall see presently, in his general charge, he stated the issues differently, and as we think erroneously, in one respect at least. At the close of the testimony, and after hearing the argument of counsel and the general charge of the Circuit Judge, the case was submitted to the jury, who found a verdict in favor of the plaintiff for the sum of $740, and from the judgment entered on the said verdict (a motion for a new trial having been made and refused) the defendant appeals upon the several grounds set out in the record, which need not be set out here, as it is claimed by counsel for appellant in his argument here — justly, we think — that the various grounds raise practically but two questions, which are stated by counsel as follows: First. Did the Circuit Judge err in declaring to the jury that the plaintiff had fixed the amount of his damages at $1,995, to avoid a removal of the case to the Federal Court: Second. Did the Circuit Judge err in charging the jury that the plaintiff might recover upon proof of ordinary negligence?
To better understand the first of these questions, it will be necessary to state that the Circuit Judge, in his general charge to the jury, after stating the nature and extent of the injuries which the plaintiff, in his complaint, alleged he had received, proceeded to use the following language: "and for these alleged injuries he claims damages to the extent of $1,995 — that otherwise odd sum being manifestly, of course, to come within the amount for which a suit of this character can be allowed in this Court, and not removed to the Federal Court. If they had asked for more, for $2,000, probably the railroad company would have had a petition to remove it to the other Court; so that the amount alleged in the complaint may be explained in that way." Why such a matter should have been injected into this case, we are utterly at a loss to conceive. It was wholly foreign to any issue which the jury were called upon
to try; it was not mentioned or alluded to in any way either in the pleadings or the testimony, and we do not see that it had any proper place in the case. A plaintiff, who brings an action for damages, may fix the amount which he claims at any sum he pleases, and the only legal bearing or effect that it can possibly have is to forbid the jury from giving any more damages than the amount claimed in the complaint. What may have been the motives of the plaintiff in fixing the amount mentioned, is a matter solely for him, and is not, properly, to be inquired into by any one else. While, therefore, we cannot approve of the practice of thus injecting into a case any matter which is wholly foreign to the issues joined in such case, the question to be determined by this Court is whether there was any error of law in thus incorporating into a charge to the jury matters wholly irrelevant to any issue in the case. It is contended that such language was calculated to prejudice the minds of the jurors against the defendant; but while this may be the effect in some cases, yet in this case it seems pretty clear that no such effect was produced, for the amount found by the jury was but little more than one-third of the amount to which they had a right to go — provided, they thought the facts proved were sufficient to warrant such a finding. This seems to negative the idea that the jury were prejudiced against the defendant by the language used by the Circuit Judge, in reference to the motive which probably influenced the plaintiff in fixing the amount of his damages at the sum stated in the complaint. We cannot say, therefore, that there was any error of law on the part of the Circuit Judge in using the language which is made the basis of the exception raising the first question.
The second question is of a much more serious character. In every system of pleading with which we are acquainted, not even excepting the liberal system of Code pleading, one fundamental rule has always been acknowledged, and that is, a plaintiff who brings an action for damages for an alleged wrong done to him must state the facts constituting such wrong in intelligible language, so that the
defendant may be able to understand what he is charged with having done, and thus enabled to meet the charge either with a denial or some satisfactory explanation. This rule is based upon common right and common sense; and while the system of Code pleading is designed to obviate the asperities of some of the artificial and technical rules of the former system of pleading, we do not understand that it was intended to abrogate any of the fundamental rules based upon common right. Hence, when a person is brought into Court, charged with having done certain acts which it is alleged caused wrong and injury to the plaintiff, he can not be called upon to answer for other acts of a different character which are not charged in the complaint. Even the recent act of 1898, 22 Stat., 693, entitled "An act to regulate the practice in the Courts of this State, in actions ex delicto
for damages," was not designed to have, and cannot have, the effect of abrogating the rule above stated. For in the first section that statute simply declares that in such an action it is not necessary to make any separate statement of the facts which would entitle him to recover actual or exemptory damages, and he shall not be required "to elect whether he will go to trial for actual or other damages, but shall be entitled to submit his whole case to the jury under the instructions of the Court." And as is well said by Mr. Justice Pope, in Glover v.Railway Company, 57 S.C. at page 234, the object of that statute, or at least the first section of it, was to alter "the practice in this State in actions ex delicto
for damages, and that since this act, so much of the case ofSpellman v. Railroad, 35 S.C. 486, as indicated that the pleadings in our Courts in damage suits should point out whether punitive or actual damages were sought, and that the recovery in such suits should correspond to the issue thus raised, is no longer authority in this State." Indeed, the first section of the act of 1898 has no application to the case now under consideration, for that section applies only to the manner in which the claims for actual and exemplary damages should be made, and in this case no such question is presented
The second section of the act of 1898 does, however, apply; and, as we think, so far from abrogating the rule upon which we rely, does, in fact, recognize such rule, by the language, which we italicize, in that section, which reads as follows: "That in all cases where two or more acts of negligence or other wrongs are set forth in the complaint, as causing or contributing to the injury for which such suit is brought, the party plaintiff in such suit shall not be required to state such several acts separately, nor shall such party be required to elect upon which he will go to trial, but shall be entitled to submit his whole case to the jury under the instruction of the Court, and to recover such damages as he has sustained, whether such damages arose from one or another or all of such acts or wrongs alleged in the complaint."
It is manifest that this section does not authorize a recovery for any act of wrong not "alleged in the complaint,"
but may recover for any act or wrong which isalleged in the complaint, although such acts or wrongs may not be separately stated. It is clear that the object of this section was to obviate the necessity of alleging acts of wrong separately, and to relieve the plaintiff from being required to elect, where one or more acts of wrong are alleged in thecomplaint, upon which he would proceed to trial. Now, in this case, there is no allegation whatever that the plaintiff was injured by the ordinary negligence (as the Circuit Judge terms it in his charge) of the defendant, and no fact is alleged which would tend to show such negligence. On the contrary, the allegation is that the defendant did the acts complained of "with intent to frighten and scare the plaintiff's team and injure the plaintiff wilfully, wantonly and recklessly, and not regarding the rights of the plaintiff in that regard." This, so far from being an allegation of the want of due care on the part of the defendant, which would constitute "ordinary negligence," is, on the contrary, an allegation that the defendant purposely — not negligently — did the acts complained of with intent to injure the plaintiff. So that the practical question presented is whether there was
error on the part of the Circuit Judge in instructing the jury that, even if they were not satisfied that the defendant did the acts complained of in the manner and with the intent alleged in the complaint, they still might find for the plaintiff, if they were satisfied that the injuries complained of were due "to the negligence, want of due care, of the railroad company." It seems to us clear that such an instruction would be erroneous; for it would be in effect, saying that, where a defendant is charged with one wrong, the jury may hold him liable if a wholly different wrong from that charged is proved against him — that if a person is charged with wilful and intentional wrong, and such charge is not sustained by the testimony, still he may be held liable if the jury are satisfied that he has committed an entirely different and distinct wrong with which he is not charged. In other words, that a person who is brought into Court to answer to one charge may be held liable under another an different charge for which he has not been called upon to answer. This, it seems to us, would be in direct violation of the fundamental rules of law, as well as of common justice and right, as well as in direct conflict with the analogies of the law afforded by the cases upon this very subject of negligence. For it is well settled that in an action to recover damages for injuries sustained by reason of the alleged negligence of a railroad company, the plaintiff will not be permitted to rely upon any act of negligence not alleged in the complaint — Fell v. Railroad Co., 33 S.C. 198; and the same doctrine is recognized in the comparatively recent case ofSpires v. Railroad Co., 47 S.C. at page 30, where Mr. Justice Gary, in delivering the opinion of the Court, uses this language: "If the complaint had alleged specific acts of negligence * * * then the plaintiff would be restricted to the introduction of such testimony only as would tend to prove the acts of negligence alleged in the complaint." This is for the obvious reason that it is neither fair nor just to require a party, who is brought into Court and called upon to answer for certain specified misconduct, to answer for other
misconduct of a totally different character with which he has not been charged, as he cannot reasonably be expected to be prepared to answer, as no such charge has been brought against him. The view which we have adopted is specially applicable to a case like the present, where the nature of the wrong charged in the complaint is not only different from that for which the jury were erroneously instructed, the defendant could be held liable, but is also attended by very different consequences. For in a case where the wrong charged in the complaint is wilful and done with intent to injure the plaintiff (as it is here), contributory negligence on the part of the plaintiff cannot be pleaded as a defense. See, in addition to the authorities cited by appellant's counsel, 7 Encycl. of Law (2 ed.), at page 443, where it is said: "The doctrines of contributory negligence have no application in cases where the injury is inflicted by the wilful act or omission of the defendant; in such cases, contributory negligence is not a defense, and in its legal sense cannot exist." And this doctrine has been expressly recognized in this State in the case of Darwin v. Railroad Company, 23 S.C. 531. There is also another material difference, and that is, under a charge like that made in this complaint, the plaintiff may recover not only his actual damages, but also punitive, vindictive or exemplary damages; whereas, under a charge of mere "ordinary negligence," the defendant may plead contributory negligence as a defense, and the plaintiff is not entitled to recover punitive, vindictive or exemplary damages, but is limited to a recovery of his actual damages. That the Circuit Judge did instruct the jury that they might find for the plaintiff, even if they were not satisfied that the charges as stated in the complaint were established, but were satisfied that the plaintiff's injuries were caused simply by the "ordinary negligence" of the defendant, may be seen by an inspection of his charge, which, for this purpose, should be set out by the Reporter in his report of the case, where we find the following language: "If you are satisfied that the injuries were due directly to the wanton conduct of the
railway company, or to the reckless conduct of the railway company,or to the negligence of the railway company, the plaintiff would be entitled to damages. If simply to thenegligence, want of due care of the railway company, he would be entitled to actual damages. If due to the wanton conduct, the wilful conduct, with intent to injure plaintiff * * * he would be entitled to punitive damages" (italics ours). Again, the Circuit Judge used this language: "The plaintiff alleges that the blowing of the whistle and the letting off of steam was done recklessly. That means, done without care. Recklessly generally means gross negligence. It is a little stronger than carelessness in its usual application but still an allegation of reckless conduct would justify a jury in finding that the conduct was ordinary negligence, want of due care, if the plaintiff failed to prove gross negligence, wanton, wilful misconduct, and what is meant by due care is simply that measure of caution and carefulness which was proper under the circumstances." Here it is clear that the Circuit Judge confounded two separate and distinct and, in fact, opposite things — recklessness and the want of ordinary care — and this, we think, was error. In 16 A. E. Encycl. of Law, 392-395 (a passage which is quoted with approval by Mr. Justice Gary, in Pickens v.Railroad Company, 54 S.C. at page 505), it is said: "The element which distinguishes actionable negligence from criminal wrong or wilful tort, is inadvertence on the part of the person causing the injury. He may advert to the act of omission of which he is guilty, but he cannot advert to it as a failure of duty — that is, he cannot be conscious that it is a want of ordinary care — without subjecting himself to the charge of having inflicted a wilful injury, because one who is consciously guilty of a want of ordinary care is, by implication of law, chargeable with an intent to injure; malice `being but the wilful doing of a wrongful act' * * * Negligence and wilfulness are the opposites of each other. They indicate radically different mental states. The distinction between negligence and wilful tort is important to be observed, not
only in order to avoid a confusion of principles, but it is necessary in determining the question of damages, since in the case of an injury by the former (negligence), damages can only be compensatory, while in the latter (wilful wrong), they may also be punitive, vindictive or exemplary" — to which we may add another reason, that in the one case contributory negligence may be pleaded as a defense, while in the other it cannot be. See, also, 7 Encycl. of Law (2d ed.), at page 443, where it is said: "Wilfulness and negligence are the opposites of each other, the one signifying the presence of intention or purpose, the other its absence. This distinction has not always been observed, consequently there are cases that use the terms `gross' or `wilful' negligence to designate wilful injuries." Now, while these passages refer, in terms, to "wilfulness" as contradistinguished from "negligence," yet it seems to us that the same may be said of "recklessness," especially where, as in this case, it was expressly charged in the complaint that the acts of wrong complained of were done "with intent to frighten and scare the plaintiff's team and injure the plaintiff, wilfully, wantonly and recklessly, and not regarding the rights of the plaintiff in that regard." Now, it is quite true that negligence may be so gross as to amount to recklessness, but when it does, it ceases to be mere negligence, and assumes very much the nature of wilfulness; so much so, that it has been more than once held in this State that a charge of reckless misconduct will justify the jury, if the same be proved, in awarding punitive, vindictive or exemplary damages, while it never has been held, so far as we are informed, that the jury, under a charge of mere negligence, would be justified in awarding vindictive or exemplary damages. One in charge of so powerful and dangerous a piece of machinery as a locomotive is bound to use care in operating it, so as to avoid, as far as practicable, doing injuries to others; and if he uses such machine recklessly and without regard to the rights of others, his conduct may as well be characterized by the term "wilful" as by the term "reckless."
for the difference, in this regard, between recklessness and wilfulness is scarcely appreciable.
The cases of Glover v. Railway Company, 57 S.C. 228, and Appleby v. Railway Company, 60 S.C. 48, cited by respondent, are not in point; for in both of these cases negligence and carelessness were distinctly alleged in both of the complaints, while here there is no allegation of negligence, and on the contrary the allegation is that the wrong complained of was done purposely and with intent to injure the plaintiff. The language contained in the fifth paragraph of the complaint cannot be regarded as an allegation of the facts constituting plaintiff's cause of action, but simply as a statement of the cause of the damages sustained by reference back to the facts constituting — "as aforesaid" — plaintiff's cause of action.
The judgment of this Court is, that the judgment of the Circuit Court be reversed, and the case remanded to that Court for a new trial.