Opinion
14884
May 29, 1939.
Before LIDE, J., Horry, November, 1938. Affirmed.
Action by W.H. Jordan, Sr., as administrator of the estate of Joseph Ernest Proctor, deceased, against the State Highway Department for the death of plaintiff's intestate by drowning as the result of an automobile crashing into the guard rail of a bridge constructed and maintained by defendant. From an order, denying defendant's motion to dismiss the complaint and granting plaintiff's motion to permit service and filing of an amended complaint on certain conditions, and an order denying defendant's motion for nunc pro tunc entry of the former order as of a date prior to that on which it was filed, defendant appeals.
The orders of Judge Lide are as follows:
November 5, 1938:
This case has had an unusually checkered career. The following is a brief resume of its past history. On September 30, 1936, the original complaint was served seeking to recover from the State Highway Department damages for the alleged wrongful death of plaintiff's intestate, who was drowned in Lumber River on the night of December 23, 1935, by reason of the crashing of the automobile in which he was riding with the guard rail of a bridge constructed and maintained by the defendant over Lumber River in Horry County, as the result of the alleged defective construction, repair and maintenance of the highway and bridge by the defendant. Thereafter defendant gave notice that a motion would be made in open Court at Georgetown on October 19, 1936, to strike certain allegations of negligence from the complaint. By order of Judge Dennis dated April 1, 1937, and served on plaintiff's counsel on July 12, 1937, the motion to strike was granted, and it was ordered that the complaint be amended "accordingly" and served upon the defendant's attorney.
On July 8, 1937, the plaintiff served as of course an amended complaint containing all the matter required to be stricken out in an by the order of Judge Dennis dated April 1, 1937. On July 23, 1937, the defendant served on plaintiff's counsel notice that on the 27th day of July, 1937, a motion would be made before Judge Dennis for an order setting aside the amended complaint served July 8, 1937, upon the ground that the time for amendment as of course had expired prior to the attempted service. By his order dated October 16, 1937, and filed October 25, 1937, Judge Dennis granted the motion to set aside the service of the amended complaint as of course upon the ground that the service thereof came too late.
On November 24, 1937, plaintiff served notice of a motion before Judge Dennis for an order extending the time for the perfection of an appeal from his order dated October 16, 1937, and also from his order dated April 1, 1937.
On November 24, 1937, the plaintiff also served notice of a motion before Judge Dennis for an order permitting him to serve an amended complaint in accordance with the copy of amended complaint attached to the notice. This proposed amended complaint by no means conformed to the order of April 1, 1937, as it contained new and other matters not permitted thereby, although it was more nearly in accordance with that order than the previously proposed amended complaint.
Judge Dennis by his order dated December 17, 1937, extended the time for perfecting the appeal from the order dated October 16, 1937, but refused to extend time for perfecting the appeal from the order of April 1, 1937, and also refused plaintiff's motion to allow the service of the amended complaint attached to the notice of his motion served November 24, 1937.
The cause came on to be heard before the Supreme Court and resulted in the affirmance of the judgment of Judge Dennis. Upon a petition for a rehearing a change was made in certain language found in the latter part of the opinion as at first filed. Of course the opinion as modified by the order on the petition for rehearing is controlling. The opinion in its final form is reported in 188 S.C. 83, 198 S.E., 174. The Supreme Court held that counsel for the plaintiff misconceived the law in attempting to serve the amended complaint as of course instead of complying with the terms of the order of April 1, 1937, requiring the service of the amended complaint omitting the allegations stricken out by that order, and that when the service of the proposed amended complaint as of course was dismissed by the order dated October 16, 1937, there was then no pleading before the Court, "except the original complaint as deleted", there having been no motion to dismiss this complaint or order dismissing the same.
Subsequently to the filing of the remittitur the plaintiff served notice of a motion before me for an order to allow him to amend the original complaint pursuant to the order of Judge Dennis dated April 1, 1937, copy of such amended complaint being attached to the notice of motion. As stated in the brief in behalf of defendant, the proposed amended complaint is in accordance with the order of Judge Dennis dated April 1, 1937, the same being the original complaint minus the deleted portions.
Immediately thereafter counsel for the defendant gave notice of a motion before me dismissing the original complaint. Both motions were fully argued before me at my chambers at Marion on the 10th day of August, 1938, and thereafter thoroughly prepared briefs were furnished me by counsel for the respective parties, and the matter has had my careful and rather prolonged consideration.
The defendant contends that the matter in res adjudicata, because Judge Dennis refused in and by his order dated December 17, 1937, to permit plaintiff's counsel to serve the amended complaint attached to the notice of November 24, 1937, but it is quite apparent that that proposed amended complaint was not the deleted complaint which remained when the order of April 1, 1937, became effective, because it certainly contained other allegations not in the original complaint or authorized by that order. It is true that Judge Dennis in his order dated December 17, 1937, refers to this as the first effort to comply with the order of April 1, 1937. But there was no holding by him that it was in fact a compliance with such order. Hence I do not think the matter is res adjudicata.
The defendant further contends that the opinion of the Supreme Court should be construed as in effect stating that the defendant was entitled to have the original complaint dismissed as a matter of course, although since there had been no motion directed to that specific end the deleted complaint was still nominally before the Court. In other words, they contend that the dismissal of the original complaint is required as a pro forma matter.
On the other hand counsel for the plaintiff contend that under the liberal provisions of Sections 494 and 495, Code 1932, they should be permitted to serve their amended complaint, that is, the original complaint minus the deleted portions, and that the Supreme Court would not have remanded the case solely to require a perfunctory motion to be made to dismiss the original complaint as deleted. And after reflection upon the matter my conclusion is that the Supreme Court did intend to allow the plaintiff the opportunity to make this motion and that the defendant would not be automatically entitled to a dismissal of the complaint.
It is quite true as shown by the decision of the Supreme Court that plaintiff's counsel should have complied with Judge Dennis' order of April 1, 1937, instead of endeavoring to serve an amended complaint under the provisions of the Code allowing amendments of course, especially as the proposed amended complaint disregarded the terms of the order of Judge Dennis. At the same time, when all the facts and circumstances are taken into consideration I feel that in my discretion the motion to dismiss the complaint should be refused and the motion of the plaintiff granted upon the condition hereinafter stated. Kitchen v. Southern Ry., 68 S.C. 554, 48 S.E., 4, 1 Ann. Cas., 747; Johnston v. Standard Oil Co., 155 S.C. 179, 152 S.E., 176.
Where allegations are stricken from a complaint, while of course it is entirely proper and perhaps better practice to require the complaint to be amended by rewriting it, omitting the matter stricken out, yet this is not at all necessary, because the cause might proceed on the original complaint itself, with the objectionable matter deleted or erased. As was held by the Supreme Court in the case at bar, the original deleted complaint is still before the Court. Should the plaintiff be deprived of his day in Court for the trial of the cause of action set forth in such deleted complaint? I think not.
It is true that the very diligent and capable counsel for the defendant have argued with a good deal of force that by reason of the lapse of time and change of conditions they will be hampered in the defense of this action. They particularly call attention to the fact that conditions with reference to this highway and bridge have been changed since the occurrence referred to in the complaint. But of course upon a trial of the case the conditions existing at the time of the occurrence will alone be relevant. And in this day of rapid and constant improvement of highways the State Highway Department could scarcely postpone its construction work even to await the trial of a case which might be reached at the first term after issue joined.
Judgment was duly entered in favor of the defendant herein against the plaintiff herein for costs amounting to $58.00, this judgment having been entered on August 8, 1938. And certainly this judgment should be paid before any further proceedings in the cause should be allowed. It is therefore, ordered. That the defendant's motion to dismiss the complaint herein be, and the same is hereby overruled and refused, and that the plaintiff's motion to be allowed to serve an amended complaint in precise accordance with the order of Judge Dennis of April 1, 1937, that is to say, the original complaint minus the portions thereof ordered to be stricken out by Judge Dennis in and by the said order, be, and the same is hereby, granted, upon the condition precedent, however, that the judgment aforesaid for costs be paid in full with interest; and provided further, that such payment be made and the said amended complaint thereupon served within twenty days from the date of the filing of this order, exclusive of the date of filing, and upon the failure of plaintiff so to do within the said period the complaint shall ipso facto be finally and forever dismissed.
Upon the service of the amended complaint in conformity with this order, the defendant shall of course have twenty days thereafter, exclusive of the date of service, in which to plead the same.
January 26, 1939:
On the 5th day of November, 1938, the undersigned as Judge of the Twelfth Circuit, prepared and signed an order in the above-stated case refusing defendant's motion to dismiss the complaint, and granting plaintiff's motion to be permitted to file and serve an amended complaint, "upon the condition precedent, however, that the judgment aforesaid for costs be paid in full with interest; and provided further, that such payment be made and the amended complaint thereupon served within twenty days from the date of the filing of this order, exclusive of the date of filing, and upon the failure of plaintiff so to do within the said period the complaint shall ipso facto be finally and forever dismissed."
On the same date, to wit, November 5, 1938, I forwarded by mail to E.S.C. Baker, Esq., at Conway, S.C. he being of counsel for the plaintiff, an original and two copies of this order requesting him to review the same and if he found no inaccuracies therein to file the original and give one of the copies to counsel for the defendant. I also stated in my letter transmitting the order that I believed there were two companion cases, and if counsel desired like orders in those cases he might prepare the same and forward to me for signature. Mr. Baker did prepare the orders in these two cases and forwarded them to me, and they were signed by me and returned to him during the week following. These orders bear the same date as that in this case, to wit, November 5, 1938, but were actually signed a few days later.
The orders were not filed, however, until the 29th day of December, 1938, and on the same day copies thereof were served on Messrs. Wright Burroughs, of counsel for the defendant. On the following day, to wit, December 30, 1938, Mr. Baker delivered to Messrs. Wright Burroughs, attorneys, a check for $59.39, payable to their order, the same being the full amount of the judgment for costs referred to in the order herein. The check was accepted by Messrs. Wright Burroughs and forwarded by them to the attorney general. A satisfaction of the judgment was duly executed on January 4, 1939. On January 9, 1939, the amended complaint herein was served on Messrs. Wright Burroughs, as attorneys for the defendant.
The cause comes before me again on the petition of the State Highway Department of South Carolina, defendant herein, upon which its counsel moved for an order directing the Clerk of this Court to enter nunc pro tunc as of November 14, 1938, my order made in this cause dated November 5, 1938, and finally and forever dismissing the complaint. The notice of motion asked that the order be entered nunc pro tunc as of November 6, 1938, but I allowed the same to be amended so as to read November 14, 1938.
The motion was duly heard before me at my chambers at Marion on the 23d inst., and after full argument by counsel for the respective parties was taken under advisement.
The contention of the defendant is that it was the duty of counsel for the plaintiff to file the order dated November 5, 1938, at once, or at least within a reasonable time, and that having failed so to do the order should be treated just as if it had been so filed, and hence that the service of the amended complaint was too late. The result, of course, would be the final dismissal thereof which would be a complete bar to plaintiff's alleged cause of action.
It is quite true that while there is no specific rule of Court on the subject, it is contemplated that counsel shall file orders transmitted to them forthwith, or at least without undue delay. Waring v. Johnson, 161 S.C. 522, 159 S.E., 829, 830. But, as stated in the case cited, "nearly all general rules have exceptions."
The order in the instant case was not filed until more than fifty days had elapsed after it was forwarded to counsel, which might ordinarily be deemed an excessive delay; but after considering the explanation of counsel for the plaintiff, and bearing in mind the significant fact that defendant does not appear to have suffered any prejudice by the delay, I do not feel that under the circumstances the Court would be warranted in imposing the drastic penalty which would result from granting the motion, to wit, the final dismissal of the amended complaint.
This conclusion, it seems to me, is fortified by the admitted fact that counsel for the plaintiff paid to counsel for the defendant the judgment for costs. It is true that it is forcefully argued for the defendant that the plaintiff was liable for this judgment in any event, and that the performance of his duty in this respect cannot operate by way of estoppel. But it should not be overlooked that the order expressly provides as a condition precedent to the filing of the amended complaint that this judgment should be paid, and when counsel for the defendant received the check they undoubtedly apperceived that the judgment was being paid under and by reason of the order, and they gave no intimation that they would make the present contention. Having received payment of the judgment under these circumstances. I am of opinion that both waiver and estoppel are applicable, and that the motion of the defendant should be denied for this reason also.
The interesting suggestion is made that the doctrine of estoppel does not apply to the State, and the case of Baker v. State Highway Department, 166 S.C. 481, 165 S.E., 197, is cited. It was held in that case that the State Highway Department's acceptance of a cashier's check for an automobile license did not constitute payment, for the reason inter alia that a department of the State could not be estopped by inviting car owners to make remittances by check, since all persons are held to have notice of the extent of the powers of public officers, who cannot accept anything but money in payment of public obligations. But I do not think this doctrine applies in any way to the case at bar, for certainly where a department of the State is permitted by law to be sued in a certain class of cases its status as a litigant therein is, in my judgment, subject to the same rules governing other litigants, unless, indeed, the statutes should otherwise provide. And hence it cannot accept the benefits incident to the performance of a condition precedent required by an order of Court and deny to the adverse party the rights predicated thereon. It is, therefore, ordered, That the motion aforesaid be, and the same is hereby overruled and refused, and the petition of the defendant dismissed. And it is further ordered, That the defendant shall have the full term of twenty days from the date of the filing of this order, exclusive of such date, in which to plead to the amended complaint herein. (It was agreed by counsel that the order in this case should be deemed controlling in the two companion cases.)
Messrs. John M. Daniel, Attorney General, J. Ivey Humphrey and M.J. Hough, Assistant Attorneys General, and Wright Burroughs, for appellant, cite: Amendment of pleadings: 48 S.C. 179; 26 S.E., 228; 137 S.C. 15; 127 S.E., 212. Service of amended pleadings: 59 S.C. 472; 38 S.E., 118. Power of Courts to correct judgment: 42 S.C. 132; 20 S.E., 30; 154 S.C. 456; 151 S.E., 745; 10 A.L.R., 526; 10 A.L.R., 565; 89 N.W., 117; 161 S.C. 522; 159 S.E., 829; 2 Hill, 475; 21 S.C. 11. As to withdrawal of papers from record: 64 S.C. 338; 42 S.E., 153; 136 F., 168; 23 Cyc., 840. Estoppel: 104 S.C. 332; 88 S.E., 896; 67 S.C. 432; 46 S.E., 39; 35 S.C. 88; 14 S.E., 674; 79 S.C. 478; 61 S.E., 99; 154 S.C. 424; 151 S.E., 788; 97 S.E., 718; 106 S.E., 869; 19 A.J., 643; 62 S.E., 713; 91 S.E., 920; 129 S.C. 89; 123 S.E., 494; 96 S.C. 393; 71 S.E., 815; 102 S.C. 361; 86 S.E., 771; 42 S.C. 348; 20 S.E., 157; 39 S.E., 160; 13 S.C. 355; 13 S.C. 371; 27 S.C. 53; 2 S.E., 630; 161 S.C. 450; 159 S.E., 807; 168 S.C. 285; 167 S.E., 500; 182 S.C. 135; 188 S.E., 789; 10 R.C.L., 692; 140 S.C. 388; 138 S.E., 870; 150 S.E., 489; 97 S.E., 718; 100 S.E., 310; 60 S.C. 465; 38 S.E., 629; 76 S.E., 450; 12 S.E., 314; 44 S.E., 267; 98 S.E., 742; 79 S.C. 478; 61 S.E., 99; 154 S.C. 424; 151 S.E., 788; 39 S.E., 160.
Messrs. E.S.C. Baker and G. Lloyd Ford, for respondent, cite: Amendment to pleadings: 68 S.C. 554; 48 S.E., 4; 58 S.C. 466; 36 S.E., 852; 155 S.C. 179; 152 S.E., 176; 59 S.C. 472; 38 S.E., 118; 72 S.C. 433; 52 S.E., 120. Abuse of discretion: 108 S.C. 49; 93 S.E., 243. Estoppel: 125 S.C. 89; 118 S.E., 178.
May 29, 1939. The opinion of the Court was delivered by
We adopt the statement of the case as it appears in the Transcript of Record, as follows:
"The history of the litigation up until the occurrence of matters involved in this appeal is set forth in detail in a former decision of the Supreme Court found in 188 S.C. 83, 198 S.E., 174, and will not be repeated here.
"Following the sending down of the remittitur the defendant entered up against the plaintiff judgment for costs in the office of Clerk of Court for Horry County, South Carolina. The plaintiff on July 29, 1938, served notice of motion before Judge Lide for an order permitting the service and filing of an amended complaint in accordance with the order of Judge Dennis dated April 1, 1937; and on July 30, 1938, the defendant served notice of a motion before Judge Lide to dismiss the complaint. Both motions were heard by him on August 11, 1938, and were decided by him in an order dated November 5, 1938. Defendant's motion was overruled and plaintiff's motion was granted `upon the condition precedent, however, that the judgment aforesaid for costs be paid in full with interest; and provided further, that such payment be made and the said amended complaint thereupon served within twenty (20) days from the date of filing of this order, exclusive of the date of filing, and upon the failure of plaintiff so to do within the said period, the complaint shall ipso facto be finally and forever dismissed.'
"The order and two copies thereof were mailed by Judge Lide to E.S.C. Baker, Esq., of plaintiff's counsel, on November 5, 1938, with a letter which invited suggestions as to any clarifying amendment which might be needed. The letter proceeded: `If, however, you find it all right, please file the original and give one of the copies to counsel for the defendant.'
"This order was received by Mr. Baker on November 7, 1938, who prepared orders in the two companion cases with slight changes but like in effect the first order, and forwarded the same to Judge Lide in Walhalla, South Carolina, on November 8, 1938. The originals of all three orders were in Mr. Baker's hands by November 14, 1938. The originals of these three orders were filed and copies thereof served on opposing counsel on December 29, 1938.
"The judgment for costs, entered up as aforesaid, was paid by counsel for plaintiff-respondent on December 30, 1938. This was received and accepted by counsel for defendant-appellant after the service of the order of Judge Lide, dated November 5, 1938. Thereafter wards, satisfaction of the said judgment was duly executed by counsel for defendant-appellant and delivered to counsel for plaintiff-respondent, and the said judgment has been duly cancelled of record.
"On January 6, 1939, defendant served notice of a motion before Judge Lide for an order directing the Clerk of Court to enter the foregoing order nunc pro tunc as of November 6, 1938. Upon the hearing of the motion the notice was amended to provide for entry as of November 14, 1938. The Clerk of Court was regularly made a party to the proceeding for the nunc pro tunc entry.
"Under date of January 26, 1939, Judge Lide signed an order refusing defendant's motion for the nunc pro tunc entry. From that order, as well as from the order dated November 5, 1938, due and timely notice of appeal was given. The amended complaint in accordance with the terms of the order of Judge Dennis dated April 1, 1937, was served on January 9, 1939."
The appellant by many exceptions challenges the correctness of Judge Lide's rulings in his order of November 5, 1938, and also his order of January 26, 1939. This Court has repeatedly held that it will not disturb a ruling made by a Circuit Judge, when the matter is one within his discretion unless it plainly appears that as a matter of law such discretion was erroneously exercised.
Judge Lide in each of these orders carefully and fully reviewed the history of the case and of the motions before him and very clearly and logically discusses the questions now raised by the exceptions. We think Judge Lide has properly disposed of these matters and further discussion would serve no useful purpose.
All exceptions are overruled and the orders appealed from are affirmed.
Let the orders of Judge Lide be reported.
MR. CHIEF JUSTICE STABLER and MESSRS. JUSTICES BONHAM, BAKER and FISHBURNE concur.
MR. JUSTICE CARTER did not participate on account of illness.