Opinion
14589
December 17, 1937.
Before BELLINGER, J., Richland, May, 1937. Affirmed.
Action by Sarah Spurlin, as executrix of the estate of Oscar L. Spurlin, deceased, against Colprovia Products Company. From an order refusing defendant's motion to make the complaint more definite and certain, defendant appeals.
The order of Judge Bellinger follows:
The plaintiff, as executrix of the estate of Oscar L. Spurlin, deceased, instituted her action against the defendant, charging that the defendant wrongfully caused the death of her testator, Oscar L. Spurlin, in the manner alleged in the complaint.
Upon proper notice, the defendant, Colprovia Products Company, moved before me to require the plaintiff to make her complaint more definite and certain in the following particulars:
1. "(a) In alleging in Paragraphs (3) and (5) whether Oscar L. Spurlin was a passenger in said truck as a guest without payment for such transportation or as a passenger without payment for such transportation.
"(b) That if the said complaint is required to be so amended and is or to be amended by alleging that the said Oscar L. Spurlin was a guest without payment for such transportation that the following allegations be required to be stricken therefrom:
"(1) So much of the allegations of Paragraph (5) as allege: `Without keeping a proper lookout; without having the same under proper control and without giving the proper warning and across a street which was muchly used for traffic, and that the said truck in which Oscar L. Spurlin was riding ran into and struck an automobile at said intersection, struck the curb of the sidewalk and turned over.'
"(2) The words `negligence' and `carelessness' in Paragraph (6) and Sub-Paragraphs (a), (d), (e), (f), and (g) of said Paragraph (6).
"(e) The words `negligence' and `carelessness' in Paragraph (7).
2. "Failing in said motion the undersigned as attorneys for the said defendant will immediately move for an order requiring the said complaint to be made more definite and certain, so that the precise nature of the charges are apparent and in order that it may intelligently plead thereto in the following respects, to wit:
"(a) In separating and dividing the two causes of action alleged or embraced therein into two separate and distinct cause of action with appropriate allegations and prayers as to each."
Taking up the first particulars of the motion to strike, the defendant desires that the plaintiff set forth in Paragraphs (3) and (5) of the complaint whether or not plaintiff's testate was a guest or a paid passenger riding in the truck of the defendant at the time of his death. As to whether or not the deceased was a guest or paid passenger should certainly be within the knowledge of the defendant, through its agents or servants, and that fact could be obtained by the defendant upon proper inquiry of its agents or servants. Plaintiff's testate, Oscar L. Spurlin, is the only one, other than the defendant's agents or servants, who knew of this fact; and Oscar Spurlin, now being dead, the agents or servants of the defendant in charge of the truck at the time of the death of Spurlin would be the only living ones having that information first hand. As is laid down in 49 C.J., 738, "A pleading will not be ordered to be made more definite and certain or specific where it appears that the moving party already has or can obtain sufficient knowledge or information, or is in position of knowing the facts superior to the position of the pleader or where the facts sought are peculiarly within the knowledge of the moving party."
The general rule, just stated, has been adopted by our Supreme Court in the case of Hughes v. Orangeburg Mfg. Co., 81 S.C. 354, 62 S.E., 404, 405, in which it is said: "If the facts are exclusively or peculiarly within the knowledge of the plaintiff, more particularity should be required than when the defendant is so circumstances as to have full information." (Italics added.)
The principle laid down in Hughes v. Orangeburg Mfg. Co., supra, has been reaffirmed in a number of other cases, including Rowland Warehouse Co. v. Sumter Packing Co., 160 S.C. 352, 158 S.E., 543. Anderson v. Singleton, 164 S.C. 94, 161 S.E., 873). Inman School District v. Law, 166 S.C. 304, 164 S.E., 839.
A further analysis of the motion of the plaintiff shows that it seeks to have the plaintiff state upon which class of negligence or carelessness she bases her cause of action. When the complaint is read as a whole, it will be seen that it sets out acts of the defendant which the plaintiff alleges to be negligent and careless, and those which she alleges to be acts willfully and wantonly committed. If the acts complained of are substantiated by testimony upon the trial of the case, it would be for the jury to determine, under proper instructions by the Court, whether the defendant has been guilty of simple or gross negligence and carelessness. See Furman v. Tuxbury Land Timber Company, 112 S.C. 71, 99 S.E., 111, 113. The complaint fully informs the defendant as to what it is charged with, and if the defendant comes into Court prepared to defend the action based on gross negligence and carelessness, it will be or should be prepared at the same time to defend against simple negligence or carelessness. In Furman v. Tuxbury Land Timber Company, supra, our Court says: "It follows that where plaintiff alleges and proves a willful tort, he may recover actual and punitive damages; and where he alleges a willful tort, he may, under that allegation, prove a negligent tort, growing out of the facts alleged, and recover actual damages therefor, without having specifically alleged that he was also negligently injured. This is so because the allegation of the greater wrong includes the lesser." (Italics added.) See, also, Anderson v. Ballenger, 166 S.C. 44, 164 S.E., 313.
Even assuming that the complaint had alleged Oscar L. Spurlin, the deceased, to have been riding in the truck of the defendant at the time of his death as a guest and not as a paid passenger, the defendant would not be entitled to have so much of Paragraph (5) of the complaint stricken out, as alleges that the defendant's truck was being operated "without keeping a proper lookout; without having the same under proper control and without giving the proper warning and across a street which was muchly used for traffic and that the said truck in which Oscar L. Spurlin was riding ran into and struck an automobile at said intersection, struck a curb of the sidewalk and turned over."
The "Guest Statute" of South Carolina, Section 5908, Code of Laws of South Carolina, 1932, sets out: "(1) Guests Without Payment. — No person transported by the owner or operator of a motor vehicle as his guest without payment for such transportation shall have a cause of action for damages against such automobile, its owner or operator for injury, death or loss, in case of accident unless such accident shall have been intentional on the part of said owner or operator or caused by his heedlessness or his reckless disregard of the rights of others." (Italics added.)
The allegations as to the "proper lookout," "proper control," and "proper warning" upon entering a street "muchly used," if substantiated by testimony would, if it is shown by the testimony that the deceased was a guest of the defendant, prove those things which would hold liable one in causing the death or injury of a guest passenger. On the other hand, if the evidence did show that the deceased was a paid passenger riding in the truck of the defendant, and if those allegations are substantiated by the testimony, then the plaintiff would be entitled to punitive damages, in addition to actual damages; for it would be shown then that the acts of the defendant were heedless and show a reckless disregard of the rights of others.
The "Guest Statute" has been construed in the recent case of Fulghum v. Bleakley, 177 S.C. 286, 181 S.E., 30, 33, and in passing on the phrase "reckless disregard of the rights of others," as used in the statute, adopted the meaning of that phrase as stated in the case of Proctor v. Southern Railway Co., 61 S.C. 170, 39 S.E., 351, which was as follows: "Act or conduct in reckless disregard of the rights of others is improper or wrongful conduct, and constitutes wanton misconduct, evincing a reckless indifference to consequences to the life, or limb, or health, or reputation or property rights of another."
In the trial of the case, if there is testimony introduced touching upon the allegation, it would then become a question of fact for the jury, under Fulghum v. Bleakley, supra, in which the Court said: "We think that the testimony * * * made a question of fact for the jury as to the defendant's reckless disregard of the plaintiff's rights, in the operation of his car at the time and place of the collision."
The objection raised by the defendant that the complaint states two causes of action, and that they should be separated, is not tenable. The action set forth in the complaint is clearly and solely brought under the provisions of the Code pertaining to civil actions for wrongful acts causing death. Code 1932, §§ 411, 412. And by reference to Paragraph (8) of the complaint, it is clearly pointed out by the plaintiff what her cause of action is, when she states therein: "That this action is being brought by the executrix of the estate of Oscar L. Spurlin, deceased, for the benefit of those entitled to recover under what is commonly known as Lord Campbell's Act, said persons being Sarah Spurlin, his wife, and Harold M. Spurlin, James T. Spurlin, and Oscar L. Spurlin, Jr., his children, who are of the age of 31, 27 and 21, respectively."
I am, therefore, of the opinion and hold that there is but one cause of action stated, and that the defendant's motion to require the plaintiff to set forth separately the two causes of actions alleged by the defendant to be stated in the complaint, is untenable, and, therefore, refused.
It is, therefore, ordered that the motion of the defendant to require the plaintiff to make her complaint more definite and certain is refused.
It is further ordered that the defendant shall have ten days after the service of this order upon it or its attorneys to answer, demur, or otherwise plead to the complaint, as it may be advised.
Messrs. Sloan Sloan and Tobias Turner, for appellant, cite: As to appeal from order refusing motion to make more definite: 11 S.C. 122; 65 S.C. 222; 66 S.C. 12; 14 S.C. 339; 15 S.C. 418; 34 S.C. 169; 8 S.C. 112; 13 S.C. 182; 25 S.C. 116; 60 S.C. 521; 119 S.C. 171; 111 S.E., 881; 125 S.C. 297; 132 S.C. 507; 168 S.C. 63. Complaint: 148 S.C. 410; 18 S.C. 471; 35 S.C. 307; 40 S.C. 413; 55 S.C. 541; 148 S.C. 249; 45 S.C. 642; 43 S.C. 221; 53 S.C. 173. Cause of action defined: 1 C.J., 954; 97 S.C. 29; 106 S.C. 143; 37 S.C. 42; 125 S.C. 297.
Messrs. C.T. Graydon and Jeff D. Griffith for respondent.
December 17, 1937. The opinion of the Court was delivered by
This action was commenced in the Court of Common Pleas for Richland County on January 18, 1937, and was brought to recover damages for the alleged wrongful death of the plaintiff's testate, which resulted from injuries claimed to have been received by him while "riding as a passenger" in a truck of the defendant. The appeal is from an order of his Honor, Judge Bellinger, refusing the defendant's motion "to make the complaint herein more definite and certain" and "to strike therefrom irrelevant and redundant matters." The particulars in which it was sought to require the plaintiff to do this are fully set forth in the Court's decree, and will not be repeated here.
It appears that so much of the order as denied the appellant's request to require the plaintiff to make her complaint more definite and certain in the particulars stated under (1) of the motion, is not appealable before final judgment. Boyle Company v. Automobile Insurance Company of Hartford, 168 S.C. 63, 166 S.E., 886. But even if it were so appealable, there was no error. As pointed out by the circuit Judge, the fact whether the plaintiff's testate was a guest without payment of transportation charges or a paid passenger riding on the truck is solely within the knowledge of the defendant. Hughes v. Orangeburg Manufacturing Company, 81 S.C. 354, 62 S.E., 404.
We have held, however, that: "If a motion is made to require the plaintiff to make his complaint definite and certain by stating the cause of action separately, when the allegations of the complaint are appropriate to two or more causes of action, the refusal of such motion necessarily involves the merits." Hawkins v. Wood, 60 S.C. 521, 39 S.E., 9, 10. Such order therefore affects a substantial right, and is appealable before final judgment.
The contention of the appellant here is that the "allegations of the complaint are appropriate to two causes of action, to wit: a cause of action embraced under the guest statute, and a cause of action not embraced thereunder," and that the Circuit Judge erred in overruling the defendant's motion to require the plaintiff to divide the two causes of action, and to state them separately.
We think the Circuit Judge properly disposed of this question. As alleged by the plaintiff, the action was brought for the benefit of those entitled to recover under what is commonly known as Lord Campbell's Act. Code 1932, §§ 411, 412. At common law, as has been pointed out in many decisions, there was no right of action for an injury causing death. Hence, the death statute gives a right of action where none existed before. As indicated in the Circuit decree, the plaintiff has no way of knowing whether her decedent, at the time he received the injuries resulting in his death, was riding upon the truck as a guest or as a paid passenger. If it should be shown on trial of the case that he was a guest without payment of transportation charges, then the allegations of "negligence" and of "carelessness" would be regarded as surplus age and the right of plaintiff to recover for the death of her decedent would be determined under the provisions of the guest statute. However, if that fact, if fact it be, should not appear from the evidence, then the provisions of the guest statute, Code 1932, § 5908, would not apply. Upon full consideration we are satisfied with the conclusions reached by Judge Bellinger, and we approve the result of his decree.
The order appealed from, which will be reported, is affirmed.
MESSRS. JUSTICES BONHAM, BAKER and FISHBURNE concur.
MR. JUSTICE CARTER did not participate on account of illness.