April 3, 1915. The opinion of the Court was delivered by This was an action by plaintiff as administratrix for the benefit of herself and her four minor children to recover damages for the death of her husband on December 19, 1910, caused by the alleged joint and concurrent carelessness, negligence, recklessness, wilfulness and wantonness of the defendants. This is the second appeal in the case. On the first trial at the close of all the testimony his Honor, Judge Spain, granted a nonsuit, which, upon appeal, was reversed. The decision on the first appeal is reported in95 S.C. 370, 78 S.E. 1031. The suit was brought under what is commonly known as the Lord Campbell's Act (Civil Code 1912, sec. 3955). The allegations of the complaint and answer do not show the plaintiff's intestate was engaged in interstate commerce at the time he was killed, and during the time of the first trial, and in the appeal therefrom no *Page 385 mention is made by the defendants of the act of Congress known as the Federal Employer's Liability Act. (Act Congress, April 22, 1908, c. 149, 35 Stats. 65, U.S. Comp. St. Supp. 1911, p. 1322.) Not only was no mention made of the Federal act during the first trial and appeal although it was as available to the defendants on the first trial as the second, but it appears at the second trial the defendants obtained leave over objection of the plaintiff and were permitted to amend their answer by setting up the defense of wilful and gross contributory negligence on the part of the plaintiff's intestate under the South Carolina statute. The second trial was had before Judge Memminger, and a jury, and resulted in a verdict in favor of plaintiff for $16,000.
As soon as plaintiff's case was closed, the counsel for defendants announced that train 46, which plaintiff's intestate was inspecting while killed, was engaged in interstate commerce, and that they would introduce testimony to show that in the inspection of this train and otherwise the plaintiff was engaged in commerce between the States, and consequently the statute under which plaintiff was bringing her case had been suspended by the act of Congress of the United States known as the Federal Employers' Liability Act, April 22d 1908. The Court refused to allow the defendants at that time under the pleadings to raise this issue and refused to admit any testimony in regard thereto. The Court also refused to direct a verdict in favor of defendants as asked for. After entry of judgment, defendants appeal.
Exceptions 1 and 2 allege error on the part of the presiding Judge in refusing to allow certain testimony, which the appellants contend would show that when plaintiff's intestate was killed he was engaged in interstate commerce, and in refusing to allow testimony which defendants' counsel stated they would offer for the purpose of bringing the case under the Employers' Liability Act, and the remarks of the Judge at that time. His Honor *Page 386 took the position that the testimony was irrelevant, and not responsive to the pleadings and not an issue in the case. That the case had been passed upon by the Supreme Court and an amendment over objection of plaintiff allowed just before proceeding with the second trial. After the plaintiff's testimony was all in, for the first time it seems to have occurred to the defendants that they wanted to avail themselves of the Federal statute Employers' Liability Act. The facts in every case should be pleaded. Whenever the pleadings show facts pleaded that the case is one that can be tried either under the Federal or State law then the Court can try it under either law. When the pleadings show facts that bring it under the Federal law it must be tried under the Federal law, and when the pleadings show it is brought under the State law it must be tried under that law.
The complaint was filed April 5, 1911, and alleges deceased was killed December 19, 1910, and alleges defendants controlled and operated its railroad in the counties of Sumter and Richland, and cities of Sumter and Columbia, S.C. and it nowhere alleges that the defendants operated its road in any other State than South Carolina, and there is no allegation in the complaint whereby it could be inferred that defendant railroad was engaged in interstate commerce, but the complaint clearly alleges that at the time of the death of the deceased it was engaged in intrastate business. The defendants answered without alleging that at the time the deceased was killed while in their employment that he was engaged in the inspection of a car which was engaged in interstate commerce. These facts must have been known, or should have been known, to them if they existed. They try the case in 1912 before Judge Spain, defendants obtain a nonsuit, which, upon appeal, is reversed, and the case is ripe for a trial before Judge Memminger and a motion to amend answer is made and allowed, and still no effort made to set up this defense and advertise the plaintiff of this defense. It does seem to us that justice and fair *Page 387 dealing under all of the circumstances of the case should have been required the defendants if they intended to invoke the benefits, which they thought would ensue to them under the act of Congress to plead the facts applicable to bring it under the act. It would be an injustice at this stage of the case to allow this defense. The plaintiff alleged he was engaged in intrastate commerce when he was killed. The first trial showed that he was. When his Honor, in the exercise of his discretion, allowing the defendants to amend their answer permitting them all they asked for, there was no hint or suggestion that he was engaged in interstate commerce. If he was, the information was, or should have been, known to them, and if they desired to raise this issue they should have set forth such allegations in their answer as to raise an issuable fact, but this they failed to do, but knowing that the plaintiff by her pleadings based her case on the State law, and after a trial under that law and an appeal without any reference or suggestion even or allegation being made to the Federal Employers' Liability Act or that the deceased at the time of his injury was engaged ininterstate commerce waits until close of plaintiff's testimony in the second trial, and without even seeking to amend their answer, attempt to bring into the case by introducing evidence and seek a direction of a verdict upon a ground not pleaded. The plaintiff alleges that she has a cause of action against the defendants and is entitled to a trial either under the State or Federal law, the pleadings made out a case to be tried under the State law, and under the pleadings his Honor was correct in ruling as he did. It is not necessary to plead either a State or Federal statute, but it is necessary to plead facts which bring it under one or the other, and when the pleadings show that it was interstate commerce the State or Federal Courts try it and Federal law governs, when the pleadings show it was intrastate commerce the State law governs. The defendants should have pleaded the Federal act or at least such facts as would render *Page 388 the act applicable, and inasmuch as they did not do so, and the pleadings made out a case based on the State law, the exclusion of the evidence by his Honor complained of was proper as it was not responsive to any issue raised by the pleadings. If there had been an allegation in the answer that brought it within the Federal Employers' Liability Act it would have been controlled by the act, although the provisions may not have been referred to in express terms in the pleadings, and proof would be allowed in the case, but in this case there is no such allegation, and his Honor committed no error, and these exceptions are overruled.
Exception 3 is overruled as we see no error on the part of his Honor, it was not in his Honor's opinion a part ofres gestae and other witnesses practically testified to the same thing sought to be proved by Dr. China as to what part of the res gestae must in a large measure be left to the sound judicial discretion of the trial Judge.
Exceptions 4 and 5 are overruled. The facts in this case were practically the same as in the former trial and on former appeal it was held to be error to grant a nonsuit on case made out. This certainly became the law of this case, and a res adjudicata as to the points and question presented in the appeal, and his Honor was not in error in refusing the same, and he had sound reason for refusing the same upon the law decided and the evidence developed.
Exception 6 is overruled. His Honor overruled the motion for direction of verdict and assigned his reason therefor, it was not a part of his charge and could not be prejudicial to the defendants. It was not such a judicial indiscretion as was committed by the trial judge in Latimer v. Electric Co., 81 S.C. 374-375,62 S.E. 438, or in Irby v. Express Co., 96 S.C. 354,80 S.E. 613, or Stokes v. Murray, 99 S.C. 217, 84 S.E. 33, *Page 389 but is analogous to the case of Reardon v. Insurance Co.,79 S.C. 525, 60 S.E. 1106. All exceptions are overruled.
Judgment affirmed.
MR. CHIEF JUSTICE GARY concurs in the result and MESSRS. JUSTICES HYDRICK, FRASER and GAGE concur in the opinion of MR. JUSTICE WATTS.