The opinion of the Court was delivered by
Mr. Justice BeEasE.
This is an action in tort, growing out of the death of Otis R. Jenkins, plaintiff’s intestate, who, -while riding on an engine of one of the defendant’s trains, was killed in a head-on collision, occurring on the night of October 30,. 1926, near Kingsville, this state. In the complaint, the defendant was charged with several acts of negligence, one being that
the engineer of the train, which the intestate was firing at the time of his death, was asleep. The employment of Jenkins at the time by the defendant as a fireman, engaged in interstate commerce, was also alleged, and it was set forth in the complaint that the suit was brought under the provisions of the Federal Employers’ Liability Act (45 U. S. C. A., §§ 51-59). The plaintiff also set up in his complaint allegations to the effect that the death of the intestate was due to, and caused by the' recklessness, willfulness, and wantonness of the defendant, and its agents and servants.
The defendant, in its answer, alleged that the intestate was not its employee at the time of his injuries and death, but that' he was riding on the engine without authority and in violation of law, “and was a trespasser, and that under the •law no duty was owing to him in the operation of the said train except not to injure him willfully, when discovered, and this 'defendant denies that the injuries complained of were due to any willfulness or negligence on the part of this defendant.”
The trial in the Court of Common Pleas of Charleston County, with Hon. W. H. Townsend, 'Circuit Judge, presiding, resulted in a verdict against the defendant for $10,-000 actual damages and $5,000 punitive damages.
• For the purpose of making certain and clear the issues involved in the case, and to have this certainty reflected in the verdict, the Court required the jury to make special findings in addition to their general verdict. In answer to specific questions prepared and submitted by the Court, the jury found: First, the plaintiff’s intestate was not in the employ of the defendant when he was killed. Second, his death was proximately caused by the negligence and willfulness of the defendant. Third, he was not guilty of contributory negligence.
There was ample evidence, in our opinion, to sustain the findings made by the jury and the verdict rendered.
The testimony on the part of the defendant showed that Jenkins had been a student fireman, had completed his ap
prenticeship, and, previous to the accident, had made a few trips as a fireman, for which he had received pay. On the trip in which he lost his life, he was not acting under orders,' but, without obtaining proper permit therefor, and in violation of the rules of the defendant, he volunteered his services to the regular fireman and asked the privilege of firing the engine. As the intestate was not acting in the line of his duty when he was killed (the contention of the defendant in this particular being sustained by the finding of the jury), plaintiff’s theory of the right to recover under the Federal Employers’ Liability Act passed out of the case.
The appeal here involves the submission of the case to the jury under the instructions of the presiding Judge, presenting two phases of liability: (1) The right of recovery under the Federal Employers’ Liability Act; and (2) the right of recovery under the allegations of willfulness, as stating a cause of action within the provisions of the state statutes.
The railroad company owed to the intestate, even if he was not an employee and had no right to be on the engine, the duty not to willfully and wantonly injure him.
Burns v. Southern Railway Co.,
63 S. C., 46, 40 S. E., 1018;
Bremer v. Railroad Co.,
318 Ill., 11, 148 N. E., 862, 41 A. L. R., 1345, and note at page 1354;
New York C. R. Co., v. Mohney,
252 U. S., 152, 40 S. Ct., 287, 64 L. Ed., 502, 9 A. L. R., 496.
The failure of the defendant to perform its duty is clear from the very frank admission in the argument of its counsel, as follows: “No effort was made at the trial, and none will be made here, to condone the conduct of the engineer in going to sleep at his post. As the railroad superintendent, a witness for the defense, himself said, for an engineer to go to sleep at the throttle on the main line was ‘about as bad as it could be.’ ”
The main question in the case is whether the pleadings are such that they permit the remedy.
At the close of the testimony, the plaintiff asked leave
to amend his complaint to conform to the proof, so as to have the case submitted to the jury under our law (Lord Campbell’s Act [Code Civ. Proc. 1922, §§ 367-370]), as well as under the Federal Employers’ Liability Act. The presiding Judge thought, and so expressed himself, that the amendment asked for was unnecessary; and he held that the allegations of the complaint were entirely sufficient to state two causes of action — one under the Federal Employers’ Liability Act, and another under Lord. Campbell’s Act; on the allegation of willfulness, if the evidence failed to prove the intesstate’s alleged status as an employee of the defendant, engaged at the time in interstate commerce. -
The ruling of the Circuit Judge is based not only on sound reason, but it is sustained by the authorities.
Koennecke v. Seaboard Air Line Ry. Co.,
101 S. C., 86, 85 S. E., 374, 376;
S. A. L. Railway Co. v. Koennecke
(same case), 239 U. S., 352, 36 S. Ct., 126, 60 L. Ed., 324;
Seyle v. Terminal Company,
106 S. C., 215, 90 S. E., 1016;
Wabash R. R. Co. v. Hayes,
234 U. S., 86, 34 S. Ct., 729, 58 L. Ed., 1226;
Missouri, etc., Railroad Co. v. Wulf,
226 U. S., 570, 33 S. Ct., 135, 57 L. Ed., 355, Ann. Cas, 1914-B, 134;
Shaffer v. Western Maryland Railroad Co.,
93 W. Va., 300, 116 S. E., 747.
In
New York C., etc., Railroad Co. v. Kinney,
260 U. S., 340, 43 S. Ct., 122, 123, 67 L. Ed., 294, it was held: “The declaration was consistent with a wrong under the law of the State or of the United States as the facts might turn out. * * * ‘The facts constituting the tort were the same, whichever law gave them that effect.’ ”
Our decisions, which have dealt with the propriety of allowing amendments to conform the pleadings to the facts proved, have also held that the failure to prove the fact of employment in interstate commerce does not justify the direction of a verdict, where the facts, as developed in a trial, show a cause of action under the law of the State.
Blake v. Southern Railway Co.,
126 S. C., 407, 120 S. E., 360. We agree, however, with the presiding Judge that the amendment proposed by the plaintiff was not at all necessary.
The complaint alleged'that the defendant’s acts were willful, which, without the allegation that the intestate was employed in interstate commerce, was appropriate to .a cause of action under the state law.
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The opinion of the Court was delivered by
Mr. Justice BeEasE.
This is an action in tort, growing out of the death of Otis R. Jenkins, plaintiff’s intestate, who, -while riding on an engine of one of the defendant’s trains, was killed in a head-on collision, occurring on the night of October 30,. 1926, near Kingsville, this state. In the complaint, the defendant was charged with several acts of negligence, one being that
the engineer of the train, which the intestate was firing at the time of his death, was asleep. The employment of Jenkins at the time by the defendant as a fireman, engaged in interstate commerce, was also alleged, and it was set forth in the complaint that the suit was brought under the provisions of the Federal Employers’ Liability Act (45 U. S. C. A., §§ 51-59). The plaintiff also set up in his complaint allegations to the effect that the death of the intestate was due to, and caused by the' recklessness, willfulness, and wantonness of the defendant, and its agents and servants.
The defendant, in its answer, alleged that the intestate was not its employee at the time of his injuries and death, but that' he was riding on the engine without authority and in violation of law, “and was a trespasser, and that under the •law no duty was owing to him in the operation of the said train except not to injure him willfully, when discovered, and this 'defendant denies that the injuries complained of were due to any willfulness or negligence on the part of this defendant.”
The trial in the Court of Common Pleas of Charleston County, with Hon. W. H. Townsend, 'Circuit Judge, presiding, resulted in a verdict against the defendant for $10,-000 actual damages and $5,000 punitive damages.
• For the purpose of making certain and clear the issues involved in the case, and to have this certainty reflected in the verdict, the Court required the jury to make special findings in addition to their general verdict. In answer to specific questions prepared and submitted by the Court, the jury found: First, the plaintiff’s intestate was not in the employ of the defendant when he was killed. Second, his death was proximately caused by the negligence and willfulness of the defendant. Third, he was not guilty of contributory negligence.
There was ample evidence, in our opinion, to sustain the findings made by the jury and the verdict rendered.
The testimony on the part of the defendant showed that Jenkins had been a student fireman, had completed his ap
prenticeship, and, previous to the accident, had made a few trips as a fireman, for which he had received pay. On the trip in which he lost his life, he was not acting under orders,' but, without obtaining proper permit therefor, and in violation of the rules of the defendant, he volunteered his services to the regular fireman and asked the privilege of firing the engine. As the intestate was not acting in the line of his duty when he was killed (the contention of the defendant in this particular being sustained by the finding of the jury), plaintiff’s theory of the right to recover under the Federal Employers’ Liability Act passed out of the case.
The appeal here involves the submission of the case to the jury under the instructions of the presiding Judge, presenting two phases of liability: (1) The right of recovery under the Federal Employers’ Liability Act; and (2) the right of recovery under the allegations of willfulness, as stating a cause of action within the provisions of the state statutes.
The railroad company owed to the intestate, even if he was not an employee and had no right to be on the engine, the duty not to willfully and wantonly injure him.
Burns v. Southern Railway Co.,
63 S. C., 46, 40 S. E., 1018;
Bremer v. Railroad Co.,
318 Ill., 11, 148 N. E., 862, 41 A. L. R., 1345, and note at page 1354;
New York C. R. Co., v. Mohney,
252 U. S., 152, 40 S. Ct., 287, 64 L. Ed., 502, 9 A. L. R., 496.
The failure of the defendant to perform its duty is clear from the very frank admission in the argument of its counsel, as follows: “No effort was made at the trial, and none will be made here, to condone the conduct of the engineer in going to sleep at his post. As the railroad superintendent, a witness for the defense, himself said, for an engineer to go to sleep at the throttle on the main line was ‘about as bad as it could be.’ ”
The main question in the case is whether the pleadings are such that they permit the remedy.
At the close of the testimony, the plaintiff asked leave
to amend his complaint to conform to the proof, so as to have the case submitted to the jury under our law (Lord Campbell’s Act [Code Civ. Proc. 1922, §§ 367-370]), as well as under the Federal Employers’ Liability Act. The presiding Judge thought, and so expressed himself, that the amendment asked for was unnecessary; and he held that the allegations of the complaint were entirely sufficient to state two causes of action — one under the Federal Employers’ Liability Act, and another under Lord. Campbell’s Act; on the allegation of willfulness, if the evidence failed to prove the intesstate’s alleged status as an employee of the defendant, engaged at the time in interstate commerce. -
The ruling of the Circuit Judge is based not only on sound reason, but it is sustained by the authorities.
Koennecke v. Seaboard Air Line Ry. Co.,
101 S. C., 86, 85 S. E., 374, 376;
S. A. L. Railway Co. v. Koennecke
(same case), 239 U. S., 352, 36 S. Ct., 126, 60 L. Ed., 324;
Seyle v. Terminal Company,
106 S. C., 215, 90 S. E., 1016;
Wabash R. R. Co. v. Hayes,
234 U. S., 86, 34 S. Ct., 729, 58 L. Ed., 1226;
Missouri, etc., Railroad Co. v. Wulf,
226 U. S., 570, 33 S. Ct., 135, 57 L. Ed., 355, Ann. Cas, 1914-B, 134;
Shaffer v. Western Maryland Railroad Co.,
93 W. Va., 300, 116 S. E., 747.
In
New York C., etc., Railroad Co. v. Kinney,
260 U. S., 340, 43 S. Ct., 122, 123, 67 L. Ed., 294, it was held: “The declaration was consistent with a wrong under the law of the State or of the United States as the facts might turn out. * * * ‘The facts constituting the tort were the same, whichever law gave them that effect.’ ”
Our decisions, which have dealt with the propriety of allowing amendments to conform the pleadings to the facts proved, have also held that the failure to prove the fact of employment in interstate commerce does not justify the direction of a verdict, where the facts, as developed in a trial, show a cause of action under the law of the State.
Blake v. Southern Railway Co.,
126 S. C., 407, 120 S. E., 360. We agree, however, with the presiding Judge that the amendment proposed by the plaintiff was not at all necessary.
The complaint alleged'that the defendant’s acts were willful, which, without the allegation that the intestate was employed in interstate commerce, was appropriate to .a cause of action under the state law. The answer of the defendant denied that-the intestate had been employed; it alleged that he was a trespasser, and, as a trespasser, “no duty was owing to him in the operation of the train except not to injure him willfully”; and it denied that he had been injured willfully. The defenses of contributory negligence and willfulness, which.would have had no place in the answer under the Federal law, were also alleged. These allegations of the complaint and answer, considered together, made the issues, which were submitted to- the jury, within the principles declared by our Court in
Koennecke v. Railroad Company, supra,
where it was said: “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.”
It appears to us, too, that the defendant’s contention that the two causes of actions were inconsistent, and that the plaintiff should have been required to elect between them, is also untenable. Whether Jenkins was firing the engine as an employee of the defendant, or was without such standing, had to be determined by the facts developed in the trial of the case. He made previous trips,-and for these services he had received pay; and the testimony of the engineer shows that this witness had admitted at the coroner’s inquisition that the dead boy was on duty firing the engine when the collision took place. The facts brought out in the trial were evidentiary to establish the willful tort of the defendant as a proximate cause of the death of Jenkins, and if they failed to show his employment in interstate commerce, they presented, nevertheless, a proper case for recovery under the state law. In the event of possibly conflicting
inferences from the testimony, as the trial Judge evidently felt that there were, it was proper to submit the whole case to the jury.
The view entertained by the Circuit Judge, which we approve, is strongly supported by the holdings of the Supreme Court of Massachusetts in' the case of
Corbett v. Boston & Maine Railroad,
219 Mass., 351, 107 N. E., 60, 62, 12 A. L. R., 683. We are so much impressed by the opinion of Chief Justice Rugg, delivered in that case, that we quote extensively therefrom:
“It is a familiar principle that, where inconsistent courses are open to an injured party and it is doubtful which ultimately may lead to full relief, he may follow one even to defeat, and then take another, or he may pursue all concurrently, until it finally is decided which affords the remedy. The assertion of one claim which turns out to be unsound, so long as it goes no further, is simply a mistake. It is not and does not purport to be a final choice, nor an election. A party is -not obliged to select his procedure at his peril. (Citing authorities.) This rule has been followed frequently in actions where it was doubtful whether the remedy of the plaintiff was under our Employers’ Liability Act or at common law. (Citing authorities.) It is equally applicable to the cases at bar. The principle is not changed in any material respect, because the question relates to remedies afforded by the statutes of. different sovereign powers, each exclusive within its own domain. The relief is sought in the same forum, -for the State Court has jurisdiction of the cause of action, whichever statute may be controlling. (Citing authorities.)
“There are strong practical considerations in the administration of justice which lead- to the same result. It oftentimes would be a great hardship upon the parties to compel them to trjr out first the question whether the Federal Act applies, and, if it in the end shall be decided that it does not, then to test by further litigation their rights under the State Statute. The short period of limitations pro
vided in each Act often might expire before a final decision could be reached. If adverse to the plaintiff on the ground of error in the form of relief sought, he thus might be barred from a just recovery.
“* * * It would be a saving of expense both to the parties and to the commonwealth if the two actions could be prosecuted together, so that by one trial the facts could be ascertained and the causes ended by the determination of the governing principles of«law. Where the settlement of an issue of fact depends upon conflicting evidence, it seems more likely that the truth will be ascertained by adducing all' the evidence at one time before a single tribunal and enabling it to find out the real situation under an adequate statement of the governing rules of law applicable to all phases, than to require two distinct and successive inquiries before separate tribunals where only a single aspect of the incident could be open to investigation at one time.
“There are important points of dissimilarity between the rights conferred' and the burdens imposed under the two statutes. The rules of evidence may be different. The principles of law by which liability may be established under the two statutes are somewhat divergent. Difficulties will be presented in the trial which will require great care and a strong grasp by the presiding Judge, and demand careful discrimination by jurors. But these are not insurmountable obstacles, nor do they appear to counterbalance the advantages which will accrue in permitting a conjoint prosecution of the two causes in appropriate instances.”
In the case at bar, the defendant raised the issue that the intestate was a trespasser. When it did this, it conceded its responsibility for his death, if it should be proved that he was willfully injured. The case was fairly submitted to the jury. The charge of Judge Townsend was clear and comprehensive. While the causes of action were jumbled, in the' pleading, they were separately submitted, and the special findings of fact required, enabled the Court to know that they had been separately considered. The verdict, both as
to
actual and punitive damages, was responsive to the issues specifically presented by the defendant’s answer. All the various exceptions made by the appellant have been, we think, fully covered in our discussion, and we have not considered it necessary to consider each of them separately. We find no good reason for disturbing the judgment of the lower Court.
It is the judgment of this Court that all the exceptions be overruled, and that the judgment of the Court of Common Pleas of Charleston County be$ and the same is hereby, affirmed.
Mr. Chief Justice Watts and Messrs. Justices StabeEr and Carter concur.