Opinion
13004
October 17, 1930.
Before TOWNSEND, J., Richland. April, 1930. Affirmed.
Action by James H. Fowles as Receiver of Carolina Transit Co. against Broad River Power Co. and Columbia Railway Gas Electric Co. From an order denying motion to strike out certain portions of the complaint and to make the complaint more definite and certain defendants appeal.
The order of Judge Townsend was as follows:
This is a motion to make the complaint more definite and certain in the particulars specified in notice served 12th March, 1930.
The complaint in effect alleges: That in 1925 the defendant corporations, one of which is owned and controlled by the other, in order to relieve themselves from an obligation to the public to maintain and operate a street railway in the City of Columbia, "conspired" (?) or acted together to induce, and did by false and fraudulent representations made to the Carolina Transit Company by defendants' officers and agents, to the effect that the street railway then operated by defendants produced a gross income of $500.00 daily, and that they intended to discontinue operation of the same on 1st December, 1925; when, if the Carolina Transit Company procured the necessary equipment to operate a bus line, the business could be diverted to it, induced said Transit Company to incur obligations to the amount of $160,000.00 for the purchase of equipment, and other obligations in order to operate the bus line, and by promises to indemnify said transit company against any losses to be incurred by it in the purchase of such equipment and operation of such bus line, did induce the transit company to engage in the proposed venture; and did thereafter willfully, maliciously and fraudulently breach said contract with intent to defraud said transit company, of which the plaintiff is receiver, to its damage in the sum of $350,000.00.
There are other allegations somewhat redundant and evidentiary, but they are relevant to the above-stated cause of action on contract.
Following the decisions in Bradley v. Metropolitan Life Insurance Co., 155 S.E., — filed on the 17th inst., and in Mauldin v. Milford, 127 S.C. 509, 121 S.E., 547, and Citizens' National Bank v. Hawkins, 140 S.C. 43, 138 S.E., 541, the motion to make more definite and particular in the particulars first specified is refused.
Inasmuch as the number of defendants' officers and agents is not so large that defendants cannot readily ascertain which ones had dealings with the transit company, its promoters, officers and agents, I do not require the plaintiff to amend the complaint so as to state the names of such officers and agents.
Motion refused, with leave to defendants to answer or plead within ten days from this date.
Messrs. Elliott, McLain, Wardlaw Elliott, for appellants, cite: Causes of action improperly joined: 24 S.C. 39; 143 S.C. 264; 118 S.E., 617; 149 S.E., 164; 96 S.C. 243; Bliss Code; Pl. Secs. 125, 126; 134 S.E., 322.
Messrs. Thomas Lumpkin and Claude N. Sapp, for respondent, cite: Action is on contract and causes properly joined: 140 S.C. 46.
October 17, 1930. The opinion of the Court was delivered by
The defendants in this case moved to strike out certain portions of the complaint and to make the complaint more definite and certain. The matter was heard by his Honor, Judge Townsend, who passed an order, which will be reported, refusing the motions.
The one exception is as follows:
"His Honor erred in refusing defendants' motion to require the plaintiff to state separately the various alleged causes of action which are jumbled together in one cause of action, the error being that more than one cause of action is stated in the complaint and said motion should have been granted."
The appellants' contention is that the complaint jumbles a cause of action on contract with one in tort — that "the defendants are being sued for breach of the alleged contract to indemnify plaintiff for losses sustained through its (transit company's) bus operations, and for actual and punitive damages alleged to have resulted from false representations willfully made by defendants whereby plaintiff (transit company) was induced to go into the bus business." According to the argument of appellants' counsel, the purpose of the motion was to have the causes of action, if more than one, stated separately, in order that the defendants, if it were so desired, might require the plaintiff to elect on which cause he would proceed. The respondent did not appeal from the holding of the Circuit Judge that a cause of action on contract only was stated, and is, therefore, bound by this construction of the complaint. Indeed, counsel for respondent concede that any action based on tort is eliminated by the finding below, and that in fact if Judge Townsend had held that two causes of action were stated and plaintiff had been put to his election, he would have elected contract as the basis of his action. The nature of the suit having been thus fixed by the order of the Court, the respondent on trial of the case will be limited to action on contract.
The order appealed from is affirmed.
MESSRS. JUSTICES BLEASE and CARTER concur.
I concur in result. I think that the defendants were entitled to an order requiring separate statements of the causes of action and later to an order requiring the plaintiff to elect. The construction placed upon the order of Judge Townsend in the opinion of Mr. Justice Stabler gives the defendants all that they could possibly obtain if they had succeeded in both motions. I think that they are entitled to the costs of appeal.