Koennecke v. Seaboard Air Line Railway

May 4, 1915. The opinion of the Court was delivered by Plaintiff brought this action to recover damages for the alleged wrongful killing of her intestate by the defendant. The complaint states a cause of action under the State statute. There is no allegation that, at the time he was killed, deceased was employed in interstate commerce, or that defendant was engaged in such commerce. Nor are any facts alleged from which, by reasonable intendment, such employment or engagement can be inferred. Nor does defendant set up in its answer any facts which directly, or by reasonable intendment, bring the case under the Federal statute. The allegation of the complaint that deceased left a widow and four children, who were dependent upon him, is appropriate to an action under the Federal statute, and while the allegation of dependency is not strictly necessary, it is not wholly inappropriate to an action under the State statute; because damages recoverable under the State statute are such as the jury "may think proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought."Barksdale v. Ry., 76 S.C. 183, 56 S.E. 906.

Therefore, as neither plaintiff nor defendant set up or claimed any right or immunity under the Federal statute, there would have been no error, if all evidence tending to prove facts sufficient to bring the case under that statute had been excluded. Mims v. R. Co., Mss. ante, filed April 3, 1915, 100 S.C. 375, 85 S.E. 372. That such right or immunity must be specially set up or claimed at the propertime and in the proper way cannot be controverted. OxleyStove Co. v. Butler Co., 166 U.S. 648, 17 Sup. Ct. 709.

But, on cross-examination of one of plaintiff's witnesses, defendant brought out testimony, without objection, which tended to prove facts sufficient to bring the case under the Federal statute. So long as that testimony remained in the record, either side had the right to claim the benefit of the Federal statute, even without amendment of the complaint or answer. Toledo etc. R. Co. v. Slavin, 236 U.S. 454, 35 Sup. Ct. Rep. 306. But, when that testimony came out, plaintiff moved to amend her complaint by alleging facts to bring the case under the Federal law, and her motion was granted. Defendant resisted the motion to amend on the ground that the amendment would substantially change the plaintiff's claim by substituting one cause of action for another, and denied the power of the Court to grant such an amendment. Strictly and very technically speaking, it may be that the amendment substituted one cause of action for another; though it would, perhaps, be more nearly correct to say that the cause of action is the same, whether the action be brought and tried under the State or Federal law; and, since the principal differences between an action under the State and Federal law lie in the authority by which the right of action is given and in some of the rules of law applicable in the determination of the rights of the parties, they relate to form and procedure rather than to substance. So that it could rarely happen that a shifting from one to the other would work prejudicial surprise. But if the parties have not been previously warned by the pleadings that such shifting might take place, and if it should be made to appear that it would be a surprise and operate to cut off a claim or defense which could otherwise have been made, the Court would either not allow it, or allow it upon such terms as would prevent prejudice.

In Missouri etc. R. Co. v. Wulf, 226 U.S. 570, Ann Cas. 1914b, 134, 33 Sup. Ct. 135, plaintiff brought action in her individual capacity under the State law for damages for the death of her son. Defendant alleged that, at the time of his injury and death, deceased was employed and defendant engaged in interstate commerce. Thereafter, plaintiff was appointed administratrix of her son's estate, and was allowed to amend her petition by making herself a party plaintiff, as administratrix, and by alleging a cause of action both under the State and Federal law. She recovered under the Federal law. There, as here, the contention was made that, by the amendment, the plaintiff was allowed to substitute a new and entirely different cause of action. But the Court overruled that contention, and held that the change was in form rather than in substance and it was not equivalent to the commencement of a new action, so as to render it subject to the two years' limitation prescribed by the Federal act. The Court said: "It introduced no new or different cause of action, nor did it set up any different state of facts as the grounds of action, and, therefore, it related back to the beginning of the suit."

The amendment allowed in the case at bar was clearly within the power and discretion of the Court. Such an amendment may be allowed even during the trial, when it does not so materially change the claim or defense as to result in prejudice to the adverse party. Shelton v. Ry., 86 S.C. 98, 67 S.E. 899; Birt v. Ry., 87 S. S. 239, 69 S.E. 233; Hewlett v. R. Co., 93 S.C. 76,76 S.E. 32. Where such amendments are asked for during the trial, if the opposite party would be misled or surprised thereby to his prejudice, it is incumbent upon him to make the fact appear by affidavit or otherwise, to the satisfaction of the Court; and, if that is done, the Court would either refuse the amendment, or, granting it, would continue the hearing, or impose such other terms and conditions as it might deem necessary to prevent prejudice. Shelton v. Ry.,supra.

Defendant contends further that the Court erred in ordering the trial to proceed after the amendment was allowed, notwithstanding the statement made by its attorney that he was not prepared to meet the issue of the alleged dependency of the widow and children upon deceased. The record shows that defendant resisted the motion to amend chiefly on the assertion of the want of power in the Court to grant it, and that its main purpose was to obtain a nonsuit. Evidently, the statement of counsel that his only objection to proceeding with the trial was that he was not prepared to meet the issue of dependency did not satisfy the Court that he would suffer prejudice on that score; for the Court stated, time and again, that if counsel was taken by surprise and was not prepared to proceed with the trial, he would not force him to go on. When counsel first raised the objection that he was not prepared to meet the issue of dependency, plaintiff's attorneys consented to strike out the names of two of the children alleged to be dependent, and then claimed damages only for the widow, an unmarried adult daughter and a minor son, who were all shown by clear and undisputed testimony to have been dependent on deceased. Under all the circumstances, as they appear in the record, appellant had failed to satisfy this Court that the trial Judge abused his discretion. Though the plaintiff and her children all resided in the city of Columbia, where the case was tried, and had resided here with deceased for more than ten years, and the trial lasted three days, no effort at all appears to have been made by the defendant to procure any testimony rebutting or questioning that of the plaintiff on the issue of dependency, not even by cross-examination of her witnesses. We are impressed that defendant's objection was interposed rather for the purpose of obtaining a technical advantage, and a ground for a new trial, in the event of an adverse verdict, than for the purpose of getting time and opportunity to prepare to meet the alleged new issue, and that, if he had made any showing that he was taken by surprise to his prejudice and had earnestly asked for time to meet the issue, his request would have been granted.

Certainly, in a case like this, where the defendant must be presumed to know the facts surrounding the employment of deceased better than the plaintiff did, it will not be allowed to withhold the facts, until the trial is in progress, and then spring them on the plaintiff, without having alleged them in its answer, to the discomfiture of the plaintiff. Such procedure is repugnant to any proper conception of a just administration of law.

From what has already been said, there does not appear to be any sound reason why a plaintiff may not set up in his complaint the same cause of action under the State law and also under the Federal law, stating it separately, of course, and try it under the law which the proof shows to be applicable. Where the cause of action is so alleged the parties would come to trial prepared to meet the issues which might arise under either aspect of the case. There is no inherent difficulty in this method of procedure, and it will greatly facilitate the trial of such cases and promote the ends of justice. Doubtless in most cases the evidence will clearly settle the question whether the State or Federal law is applicable. But, when, under proper allegations of the complaint or answer, and the evidence adduced, there is an issue of fact whether the State or Federal law is applicable, the case should be submitted to the jury under proper instructions as to both aspects of it, so that the jury may render their verdict under the one or the other, as they may find the facts. N.C.R.R. Co. v. Zachary,34 Sup. Ct. 305, 232 U.S. 248, Ann. Cas. 1914C, 159;Howell v. R. Co., 99 S.C. 404, 83 S.E. 639. Such is our procedure in actions having such a double aspect that they may be regarded either as actions at common law or under a statute. Lee v. R. Co., 84 S.C. 125, 65 S.E. 1031. Nor is such procedure obnoxious to any provision of the Federal statute. Wabash R. Co. v. Hayes, 234 U.S. 86, 34 Sup. Ct. 729. In the case last cited, an action was brought under the Federal act. But, omitting the allegations which, if proved, would have made the Federal statute applicable, a cause of action was stated under the State law. The proof failed to show that the injury occurred in interstate commerce, and, at defendant's request; the Court instructed the jury that the Federal statute was not applicable. The case was then submitted to the jury under the State law, and the plaintiff recovered. The Federal Supreme Court sustained the judgment, holding that the State "Court merely gave effect to a rule of local practice, the application of which was not in anywise in contravention of the Federal act."

As there was testimony tending to support some of the specification of negligence in the complaint, the motion to direct a verdict for defendant was properly refused.

It would be unprofitable to discuss the numerous exceptions in detail. Upon examination of the charge, we find no prejudicial or reversible error therein, or in the refusal to charge. The Court might well have charged defendant's fourth and fifth requests that there was no evidence of negligence in that the train which killed deceased consisted of a great number of cars — more than twelve — or in that the engine was backing and pulling the train. Still we are not satisfied that the refusal was prejudicial. The jury are assumed to be men of common sense, and it is inconceivable that they would have found against defendant merely because the train consisted of any number of cars, or because the engine was backing, if the approach of the train had been signalled by headlight on the engine or in some other way. There was testimony that the headlight of the engine was not lighted, and that a proper lookout was not kept.

We cannot assent to the view that, under no circumstances, is it the duty of the crew of a switching engine moving in a switching yard to give signals of its approach for the benefit of other employees working in the yard, even though they may know that it is moving about the yard, and be under the duty of looking out for it. But if the law were as contended, the engine in question had not theretofore been moving about the yard. Its regular place of work was in another yard. It had just arrived in the yard where it ran over deceased, and its arrival may not have been expected.

While the undisputed evidence shows that rule U, which forbids the moving of engines or cars backward without lookout, was not applicable to yard service, it was conceded that it was applicable on the main line. Therefore, under the rule, the engine should have had a lookout while on the main line from Columbia to Cayce. As it was a question of fact whether this more extended movement than yard service had been completed, there was no prejudicial error in admitting the rule, for it was for the jury to say whether, under the circumstances, the lookout should have been kept on the backing engine after it entered the yard and until its extended movement was completed.

The questions involved in the other exceptions have been so frequently considered by the Court that they require no special consideration.

Judgment affirmed.