Poulnot v. Telegraph Co. , 69 S.C. 545 ( 1904 )


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  • Following the case ofProctor v. Ry. Co., 64 S.C. 495, it is said in Steedman v.R.R. Co., 66 S.C. 544: "The effect of the act of 1898 is to require that when the same act is described as negligent and as wilful, the pleading shall be treated and considered as if these two inconsistent statements had been made separately in setting out the two distinct causes of action." Two distinct causes of action were alleged in the complaint — one a tort based on the charge of negligence, the other a tort based on the charge of wilfulness and wantonness. In such case, where there is no evidence of wilfulness or wantonness, a nonsuit may be granted as to the cause of action depending on that charge, leaving the cause of action supported by evidence of negligence to be submitted to the jury. "The plaintiff may be nonsuited as to one cause of action and recover as to the rest." 3 Wait's Practice, 160. In this case the motion for nonsuit was as to the whole case, without distinguishing the two causes of action, and confining the motion to the cause of action based on the charge of wilfulness and wantonness. As there was evidence of negligence, the motion made by defendant could not be granted.

    I concur, therefore, in affirming the judgment.

Document Info

Citation Numbers: 48 S.E. 622, 69 S.C. 545

Judges: MR. JUSTICE GARY.

Filed Date: 8/16/1904

Precedential Status: Precedential

Modified Date: 1/13/2023