Addy v. Bolton, 19291
| Decision Date | 27 September 1971 |
| Docket Number | No. 19291,19291 |
| Court | South Carolina Supreme Court |
| Parties | Frank L. ADDY, Plaintiff, v. Miss Mary Elise BOLTON et al., Defendants-Appellants, and C. Y. Thomason Company, Defendant-Respondent. |
William B. Patrick, Jr., of Burns, McDonald, Bradford, Erwin & Few, Greenwood, for defendants-appellants.
James D. Jefferies, of Jefferies, Arnold & Wise, Greenwood, for defendant-respondent.
Mary Elise Bolton, Mildred B. Craig and Julian E. Bolton, the appellants herein, are the owners of a store building located on Main Street in the City of Greenwood. The appellants leased this building to Frank L. Addy and Mary P. Addy, wherein they operated a retail jewelry store. During the existence of the lease it became necessary that certain repairs be made to this store building, and the appellants engaged the C. Y. Thomason Company, a general contractor, the respondent herein, to make the needed repairs. In making the necessary repairs the respondent used an oxygen acetylene torch for the purpose of welding certain steel beams in the building. This welding operation started a fire in said building causing damage to the stock of merchandise situated therein and owned by Frank L. Addy and Mary P. Addy.
The Addys instituted this action against the appellants and the respondent to recover for the damage to and loss of their stock of merchandise, asserting that such fire was due to their joint and concurrent negligent, careless and reckless acts.
The appellants, by their answer, alleged that the fire and the damage resulting therefrom was caused by the sole negligence of the respondent. The appellants also filed a crossaction against the respondent demanding judgment in an amount equal to any judgment which may be rendered against them in favor of the Addys, together with the costs of the action and attorney fees for defending such. The respondent answered the cross action and denied any liability to the appellants and interposed a counterclaim demanding judgment against them in an amount equal to any judgment obtained against it by the Addys.
This case came on for trial before the Honorable James Hugh McFaddin, presiding judge, and a jury, at the 1967 Term of the Court of Common Pleas for Greenwood County. At the close of all the testimony, the trial judge directed a verdict against the appellants on their cross action and the respondent on its counterclaim. The jury returned a verdict in the amount of $18,000.00 actual damages against the respondent, thus exonerating the appellants of any liability. The appellants moved for a directed verdict, for judgment Non obstante veredicto, and in the alternative, for a new trial on their cross action against the respondent. These motions were refused and this appeal followed.
There was no written contract between the appellants and the respondent for the making of the repairs to the building, nor does this record reveal any express agreement on the part of the respondent to hold the appellants harmless from any and all claims for damages to persons or property arising out of or in any way connected with the repairs to the building. However, the appellants content that even though there was no express contract of indemnity between themselves and the respondent, under the facts of this case such a contract was created by operation of law and under such an implied contract of indemnity they are entitled to recover from the respondent the fees paid their attorneys in the successful defense of this action. We should point out in this connection that the jury found the respondent negligent and awarded damages that have now been paid by it.
We think this appeal can be disposed of by a determination of the single question of whether the appellants, in the absence of an express contract of indemnity, are entitled to recover their costs and attorneys' fees incurred in the successful defense of this action under an implied contract, or because they were put to the necessity...
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