Scott v. Atlantic Coast Line R. Co.

Supreme Court of South Carolina

Scott v. Atlantic Coast Line R. Co.

89 S.E. 1038, 105 S.C. 385, 1916 S.C. LEXIS 233

CourtSupreme Court of South Carolina

DecidedSeptember 12, 1916

Docket9504

StatusPublished

Cited by2 cases

This text of 89 S.E. 1038 (Scott v. Atlantic Coast Line R. Co.) is published on Counsel Stack Legal Research, covering Supreme Court of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Scott v. Atlantic Coast Line R. Co., 89 S.E. 1038, 105 S.C. 385, 1916 S.C. LEXIS 233 (S.C. 1916).

Pincite

Opinions

September 12, 1916. The opinion of the Court was delivered by There is no doubt that the defendant was taken by surprise, and to allow the trial to proceed under such circumstances is simply to allow the plaintiff when he fails to make out his case by the specifications of negligence set out in his complaint, or when they are met by evidence of defendant, and under some view of the evidence a new and independent act of negligence is established to amend so as to conform to the proof would work untold prejudice and wrong to the defendant.

The defendant was called upon to answer certain specifications of negligence. Under the pleadings it would have been justified in showing that it did injure the plaintiff, but in a different way than that alleged, and this would have been a complete defense. To allow the amendment asked for under the circumstances of the case would be far-reaching in its effect and bring about in every case a motion to amend after the testimony was in so as to introduce a new and independent specification of negligence. The defendant would have to prepare a defense not to meet the specifications of negligence set out, but all manner of conjectural negligence that could be imagined and retained in the mind of the plaintiff's attorney until he got ready to spring it, and ask for an amendment after all the evidence was in.

Judge Shipp was in error in allowing the amendment, and not withdrawing case from the jury when he was informed it took counsel for defendant by surprise, and was correct afterwards in granting the new trial. Neither do I see how he has jurisdiction to hear and determine the other grounds made for a new trial. This Court could remand it to him to ascertain what probable ruling he might have made, but he is now without jurisdiction, *Page 388 power, or authority to determine the motion made before him in the minutes of the Court.

I think the judgment should be affirmed.

It is so ordered.

MR. CHIEF JUSTICE GARY and MR. JUSTICE FRASER concur in the opinion of the Court.

MR. JUSTICE HYDRICK. I concur in affirming the order appealed from.

Free access — add to your briefcase to read the full text and ask questions with AI

September 12, 1916. The opinion of the Court was delivered by There is no doubt that the defendant was taken by surprise, and to allow the trial to proceed under such circumstances is simply to allow the plaintiff when he fails to make out his case by the specifications of negligence set out in his complaint, or when they are met by evidence of defendant, and under some view of the evidence a new and independent act of negligence is established to amend so as to conform to the proof would work untold prejudice and wrong to the defendant.

The defendant was called upon to answer certain specifications of negligence. Under the pleadings it would have been justified in showing that it did injure the plaintiff, but in a different way than that alleged, and this would have been a complete defense. To allow the amendment asked for under the circumstances of the case would be far-reaching in its effect and bring about in every case a motion to amend after the testimony was in so as to introduce a new and independent specification of negligence. The defendant would have to prepare a defense not to meet the specifications of negligence set out, but all manner of conjectural negligence that could be imagined and retained in the mind of the plaintiff's attorney until he got ready to spring it, and ask for an amendment after all the evidence was in.

Judge Shipp was in error in allowing the amendment, and not withdrawing case from the jury when he was informed it took counsel for defendant by surprise, and was correct afterwards in granting the new trial. Neither do I see how he has jurisdiction to hear and determine the other grounds made for a new trial. This Court could remand it to him to ascertain what probable ruling he might have made, but he is now without jurisdiction, *Page 388 power, or authority to determine the motion made before him in the minutes of the Court.

I think the judgment should be affirmed.

It is so ordered.

MR. CHIEF JUSTICE GARY and MR. JUSTICE FRASER concur in the opinion of the Court.

MR. JUSTICE HYDRICK. I concur in affirming the order appealed from.

Cite This Page — Counsel Stack

Bluebook (online)

89 S.E. 1038, 105 S.C. 385, 1916 S.C. LEXIS 233, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scott-v-atlantic-coast-line-r-co-sc-1916.

Opinions

I think the judgment should be affirmed.

Related

Cite This Page — Counsel Stack