The opinion of the Court was delivered by
Wright, A. J.
The exception made in the Court below that the action brought is one ex eontraetu, for a specific money demand, for the breach of the contract between the United States government and the appellant, and that the plaintiff was limited in his proof to the contract as alleged and the damages which may have resulted from a breach of it, cannot prevail. It is true that the [136]*136notice,, both on the summons and complaint, as to the form of the judgment which the plaintiff will demand, applies, under the Code, to actions arising ex contractu, and not to those which are founded on tort, or where a recovery is sought on any other than a demand for the payment of a specific sum of money. It is plain that the summons and the complaint, between which there was no variance, should have concluded with a notice under the second subdivision of Section 152 of the Code.
The summons and the complaint were both served together. The form of the latter shows beyond dispute that the action was not brought for the breach of the.contract between the government and the appellant, but for the money due to the respondent through the defect and unsoundness of their road and the negligence of* their agents. It was impossible that the appellant could have been misled as to the nature of the action, for the form and phraseology of the complaint, while they clearly disclosed the claim to reparation in money for the injury received through the negligence of the appellant, sought no recovery for any breach of the contract to which it refers. The course, too, pursued in the answer and defense prevents even a presumption of its having been misled by the complaint;. If, as the company avers, the action was on the contract, and that under it there was no privity between Hammond and itself, a demurrer would have been the most appropriate mode by which the question could have been raised. We do not see in the complaint any allegation on which the respondent founds his right to a recovery for the breach of the contract. It is not referred to as the foundation of his action. It may be that his complaint would not have been open to any exception if he had omitted all reference to it. It was introduced to show that he was not an intruder on the train of the company. It was merely preliminary to the statement of his real cause of action, and, if necessary to its support, he could have offered proof of it without setting it out in his complaint. The fourth paragraph of his complaint avers his reception on the train with the consent of the appellant, to be conveyed from Florence to Charleston ; and, not regarding its duty to carry him safely and securely, it so negligently conveyed him as to cause personal injury and loss, for which he seeks compensation. If, by the terms of the contract, he was, as mail agent, to be carried'without charge to the government, and erred by stating in his complaint that he was to be carried free of charge, it could in [137]*137no way debar his right to recover, if he proved negligence on the part of the company and injury to himself in the performance of the duty it assumed when it received him on the train to be transported between the points already named. We are by no means, however, satisfied that under the contract the company received no compensation for his carriage — for the services to be performed for the government, in consideration of the gross sum paid it, included not only his transportation but that “ of the mail bags and post-office blanks and accredited special agents.” The words “free of charge” must have been intended to mean that no additional compensation was to be claimed for these essential incidents of the contract. Further, whether he was to be carried with or without charge to the government cannot change the liability of the company if he was rightfully in the ear supplied for the use of the government in the transportation of the mails, under his care and custody.
A liberal construction must be given to the form of pleading established by the Code, which was intended to simplify the system and free it from the nice and intricate distinctions which prevailed at common law, where the resort to amendment was but rarely allowed.
If the defendant has not been misled, and could not have been misled, in framing his defense to meet and counteract the allegations of the complaint by reason of their want of precision in presenting the real cause of action, then the plaintiff should not be prevented from submitting evidence to sustain the averments on which he relies for a recovery. In Chambers vs. Lewis, 10 Abb., 206, affirmed 11 Abb., 270, it is said: “ The allegations of the complaint'determine whether the action is brought on the contract or on tort.” In Scott vs. Pilkington, 15 Abb., 280, it is said: “Under-the Code, no trouble arises as regards the form of the action, whether it be on the case or on contract.” “ If the facts established in the complaint give a right of action, the plaintiff can recover on that complaint.” — See Waits’ Annot..Code, pages 182, 518. It is enough if the allegations show distinctly the cause of action. If, then, as it appears here, the appellaut was well informed by the complaint of the nature of the action which it was required to answer, is the character of the relief which the respondent demanded, when not objected to by motion on the part of the appellant, to debar his recovery because not claimed in con[138]*138formity with the language of the Code? It is not possible to suppose that the appellant was surprised by the nature of the evidence by which the respondent proposed to maintain his action. It was apprised by the complaint of the cause of action, and the testimony offered was in direct reference to it. The objection that the complaint and answer do not agree as to the cause of action cannot be raised at the trial.— Willet vs. Stewart, 43 Barb., 98. With greater reason it would seem that, though they both conclude with a form applicable under the Code to a demand for a specific sum of money, yet when the complaint informs the defendant of the real nature of the cause of action, this should prevent an exception after the case has gone to trial. The Code, in regard to pleadings, allows a most liberal interpretation. Section 182 provides “that in the construction of a pleading for the purpose of determining its effect, its allegations shall be liberally construed, with a view of substantial justice between the parties.”
In the case of Ahrens vs. State Bank, (3 S. C., 410,) the Court considered the Sections of the Code in regard to “mistakes in pleading and amendments,” and expressed its conclusions as to their purpose and intent. In delivering the opinion of the Court, Mr. Justice Willard.says: “Under Section 192, no variance is to be regarded materia], unless it has actually misled the party; and in that case his remedy is to satisfy the Court immediately, by proof by affidavit, that he has been misled. The effect of such proof is not to prevent the Court from allowing an amendment to such case, but to entitle the party prejudiced by such amendment either time or such other compensatory terms and conditions as may be reasonable.
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The opinion of the Court was delivered by
Wright, A. J.
The exception made in the Court below that the action brought is one ex eontraetu, for a specific money demand, for the breach of the contract between the United States government and the appellant, and that the plaintiff was limited in his proof to the contract as alleged and the damages which may have resulted from a breach of it, cannot prevail. It is true that the [136]*136notice,, both on the summons and complaint, as to the form of the judgment which the plaintiff will demand, applies, under the Code, to actions arising ex contractu, and not to those which are founded on tort, or where a recovery is sought on any other than a demand for the payment of a specific sum of money. It is plain that the summons and the complaint, between which there was no variance, should have concluded with a notice under the second subdivision of Section 152 of the Code.
The summons and the complaint were both served together. The form of the latter shows beyond dispute that the action was not brought for the breach of the.contract between the government and the appellant, but for the money due to the respondent through the defect and unsoundness of their road and the negligence of* their agents. It was impossible that the appellant could have been misled as to the nature of the action, for the form and phraseology of the complaint, while they clearly disclosed the claim to reparation in money for the injury received through the negligence of the appellant, sought no recovery for any breach of the contract to which it refers. The course, too, pursued in the answer and defense prevents even a presumption of its having been misled by the complaint;. If, as the company avers, the action was on the contract, and that under it there was no privity between Hammond and itself, a demurrer would have been the most appropriate mode by which the question could have been raised. We do not see in the complaint any allegation on which the respondent founds his right to a recovery for the breach of the contract. It is not referred to as the foundation of his action. It may be that his complaint would not have been open to any exception if he had omitted all reference to it. It was introduced to show that he was not an intruder on the train of the company. It was merely preliminary to the statement of his real cause of action, and, if necessary to its support, he could have offered proof of it without setting it out in his complaint. The fourth paragraph of his complaint avers his reception on the train with the consent of the appellant, to be conveyed from Florence to Charleston ; and, not regarding its duty to carry him safely and securely, it so negligently conveyed him as to cause personal injury and loss, for which he seeks compensation. If, by the terms of the contract, he was, as mail agent, to be carried'without charge to the government, and erred by stating in his complaint that he was to be carried free of charge, it could in [137]*137no way debar his right to recover, if he proved negligence on the part of the company and injury to himself in the performance of the duty it assumed when it received him on the train to be transported between the points already named. We are by no means, however, satisfied that under the contract the company received no compensation for his carriage — for the services to be performed for the government, in consideration of the gross sum paid it, included not only his transportation but that “ of the mail bags and post-office blanks and accredited special agents.” The words “free of charge” must have been intended to mean that no additional compensation was to be claimed for these essential incidents of the contract. Further, whether he was to be carried with or without charge to the government cannot change the liability of the company if he was rightfully in the ear supplied for the use of the government in the transportation of the mails, under his care and custody.
A liberal construction must be given to the form of pleading established by the Code, which was intended to simplify the system and free it from the nice and intricate distinctions which prevailed at common law, where the resort to amendment was but rarely allowed.
If the defendant has not been misled, and could not have been misled, in framing his defense to meet and counteract the allegations of the complaint by reason of their want of precision in presenting the real cause of action, then the plaintiff should not be prevented from submitting evidence to sustain the averments on which he relies for a recovery. In Chambers vs. Lewis, 10 Abb., 206, affirmed 11 Abb., 270, it is said: “ The allegations of the complaint'determine whether the action is brought on the contract or on tort.” In Scott vs. Pilkington, 15 Abb., 280, it is said: “Under-the Code, no trouble arises as regards the form of the action, whether it be on the case or on contract.” “ If the facts established in the complaint give a right of action, the plaintiff can recover on that complaint.” — See Waits’ Annot..Code, pages 182, 518. It is enough if the allegations show distinctly the cause of action. If, then, as it appears here, the appellaut was well informed by the complaint of the nature of the action which it was required to answer, is the character of the relief which the respondent demanded, when not objected to by motion on the part of the appellant, to debar his recovery because not claimed in con[138]*138formity with the language of the Code? It is not possible to suppose that the appellant was surprised by the nature of the evidence by which the respondent proposed to maintain his action. It was apprised by the complaint of the cause of action, and the testimony offered was in direct reference to it. The objection that the complaint and answer do not agree as to the cause of action cannot be raised at the trial.— Willet vs. Stewart, 43 Barb., 98. With greater reason it would seem that, though they both conclude with a form applicable under the Code to a demand for a specific sum of money, yet when the complaint informs the defendant of the real nature of the cause of action, this should prevent an exception after the case has gone to trial. The Code, in regard to pleadings, allows a most liberal interpretation. Section 182 provides “that in the construction of a pleading for the purpose of determining its effect, its allegations shall be liberally construed, with a view of substantial justice between the parties.”
In the case of Ahrens vs. State Bank, (3 S. C., 410,) the Court considered the Sections of the Code in regard to “mistakes in pleading and amendments,” and expressed its conclusions as to their purpose and intent. In delivering the opinion of the Court, Mr. Justice Willard.says: “Under Section 192, no variance is to be regarded materia], unless it has actually misled the party; and in that case his remedy is to satisfy the Court immediately, by proof by affidavit, that he has been misled. The effect of such proof is not to prevent the Court from allowing an amendment to such case, but to entitle the party prejudiced by such amendment either time or such other compensatory terms and conditions as may be reasonable. Section 194 was intended to guard against the application of Sections 192 and 193 to cases which are not, properly speaking, cases of variance, but where the party has proved on trial a state of facts foreign to the allegations of the pleadings, and having the effect to leave the facts alleged in the pleadings unproved in their ‘entire scope and meaning.’ It is obvious that variance involving nothing more than technical differences between the allegations and proof can only be. made material in the mode pointed out in Section 192.” That the appellant here could not have been misled as to the true character of the complaint, is evident from the fact that it was prepared with testimony “to show that it hád not neglected any duty, and that the plaintiff had not suffered damage at its hands,” and did actually offer testimony in aid of such defense.
[139]*139The most of the instructions asked by the appellant, and refused by the Court below, have been disposed of by what we have already said.
In relation to the fifth, it is sufficient to say that the charge was substantially in accord with its requests.
In regard to the sixth, it was not necessary for the plaintiff below to prove every specific injury to his person because alleged in his complaint. Under the averment of being bruised and wounded, he was properly allowed to prove all personal injuries which were the consequence of the wrong complained of by the negligence of the respondent.
The exception to so much of the charge of the Judge, as stated, that the only question for the jury “was whether or not the railroad company injured Mr. Hammond through negligence, and that the contract had nothing to do with the case,” is not well taken. In addition to what we have already said bearing on this point, it will only be necessary to refer to the case of Collett vs. The London and North Wales Railroad Company, (Ad. & Ellis, 71 E. C. L., 984,) which in all particulars was similar to this. The declaration sets out the statute under which the conveyance of the mails by railways was required; that the plaintiff was an officer of the post-office, whom the Postmaster General required of the defendant they should carry and convey in and upon the carriage containing the mails. That, therefore, it became, and was, the duty of the defendants to use due and proper care and skill in and about carrying the plaintiff Yet, not regarding their duty, they did not use proper care and diligence in conveying him, but so negligently conducted themselves in and about conveying him that plaintiff became and was dangerously hurt, &c. A demurrer was filed, principally because it was not stated with certainty by what right or authority, or on what grounds, the Postmaster General had required of the defendants, as in the declaration mentioned. The demurrer was overruled.
Lord Campbell, C. J., said: “The duty to use due and proper care and skill in conveying does not arise in respect of any contract between the company and the persons conveyed by them, but is one which the law imposes; if they are bound to carry, they are bound to carry safely.”
Patterson, J„ said: “It has been contended that if there is any contract on the part of the defendants, it is with the'Postmaster [140]*140General. But there is certainly a duty imposed upon them in respect of the plaintiff to convey safely; and it would be strange if the Postmaster General is to sue for injuries to the plaintiff caused by neglect of this duty. Such injury is properly the subject of an action on the case by the plaintiff.”
The motion is dismissed.
Moses, C. J., and Willard, A. J., concurred.