Hall v. Waters

• Decision Date: 22 July 1925
• Docket Number: 11808.
• Citation: 128 S.E. 860,132 S.C. 117
• Parties: HALL v. WATERS ET AL.
• Court: South Carolina Supreme Court

128 S.E. 860

132 S.C. 117

HALL v. WATERS ET AL.

No. 11808.

Supreme Court of South Carolina

July 22, 1925

Appeal from Common Pleas Circuit Court of Richland County; M. L Bonham, Judge.

Action by M. J. Hall against T. W. Waters and G. D. Lott, as partners trading under the firm name and style of the Palmotte Quarries Company. From an order directing defendants to strike a particular defense from their answer, and to file an amended answer, they appeal. Affirmed.

The following is the order and opinion of the trial judge:

This matter came before me to be heard upon notice served by the plaintiff that he would move before me to have the fourth defense of the defendants' answer stricken out, and at the same time ask for an order requiring the defendants to serve an amended answer omitting the part that is objectionable. It appears that James Hall, an infant, through his guardian ad litem, M. J. Hall, who is the plaintiff in the present action, brought an action against the defendants in this present action for personal injuries to the said James Hall. Upon that action coming to trial, a verdict was rendered in favor of the defendants. Thereafter, M. J. Hall the father of the said James Hall, brought this, an action for loss of services of his son and to be reimbursed for medical attention. In their answer to this action brought by the parent, M. J. Hall, the defendants set up as their fourth defense, as follows:

" For a fourth defense: The defendants allege that on or about the ______ day of January, 1923 James Hall, through his guardian ad litem, M. J. Hall, the plaintiff in this action, brought an action against the defendants, alleging that he was injured through the negligence and willfulness of the defendants substantially in the same way as is alleged in the complaint in this action and suing the defendants for damages in a large sum for the same injury set forth in the complaint herein; and that upon the trial of the said case verdict and judgment were rendered in favor of the defendants, and that the plaintiff herein participated in said suit as the guardian ad litem in behalf of his son, the said James Hall, was present during the entire trial, and controlled said proceedings, and the defendants plead said verdict and judgment as a defense to the action herein, and allege that in the action of the said James Hall, by his guardian ad litem, the complaint and evidence were in all material respects the same as herein and that the adjudication in said case is binding on the plaintiff herein and conclusive of his rights in this action; and further that inasmuch as the plaintiff's right to recover is necessarily based on the tortious act of the defendants, and it having adjudicated that the defendants were not at fault, or that James Hall was not injured through any fault of theirs, that the plaintiff in this action, who can claim only through negligence operating on James Hall, cannot recover."

The plaintiff now comes in and asks that...