Collins v. Johnson
| Citation | 242 S.C. 112,130 S.E.2d 185 |
| Decision Date | 13 March 1963 |
| Docket Number | No. 18039,18039 |
| Court | United States State Supreme Court of South Carolina |
| Parties | James L. COLLINS, Plaintiff-Appellant, v. James Monroe JOHNSON, Defendant-Appellant, and Queen City Coach Company, Defendant-Respondent. |
James P. Mozingo, III, D. Kenneth Baker, Darlington, E. E. Saleeby, Hartsville, for plaintiff-appellant.
McEachin, Townsend & Zeigler, Florence, for defendant-appellant and defendant-respondent.
It appears from the record that on May 6, 1961, a passenger bus owned by Queen City Coach Company, the respondent herein, and operated by James Monroe Johnson, an appellant herein, was in collision with an automobile owned and operated by James L. Collins, an appellant herein, on U. S. Highway No. 52 between Society Hill and Darlington, South Carolina, resulting in property damage to the passenger bus of the respondent and property damage and personal injuries to the appellant Collins.
Queen City Coach Company, on September 27, 1961, instituted an action in Florence County against James L. Collins to recover for damage done to its bus in said collision, allegedly resulting from his actionable negligence and willfulness. Collins filed an answer in said action denying that he was guilty of negligence or willfulness in the operation of his automobile. He further alleged that even if he were negligent or willful that the damage to the bus of the respondent was caused by the sole negligence of the driver thereof and that such driver was guilty of contributory negligence and willfulness. Collins did not counterclaim in said action but along with his answer he did serve a notice of a motion for a change of venue to Darlington County.
James L. Collins, on February 20, 1962, instituted an action in Darlington County against the respondent and James Monroe Johnson, agent and servant of the respondent, to recover damages to his automobile and for his personal injuries allegedly resulting from the actionable negligence and willfulness of Johnson acting in the scope of his employment as driver of said bus.
The respondent, on March 7, 1962, moved to abate the Darlington County action brought by Collins against it on the ground that an action had been previously commenced by it against Collins in the Court of Common Pleas for Florence County, arising out of the identical accident that is the subject of Collins' complaint, and that any claim by Collins against the respondent must be asserted by way of counterclaim in the action pending in Florence County, and if Collins desires he can bring in James Monroe Johnson as a party in that action and counterclaim against him.
When the motion of the respondent to abate came on for hearing before the Circuit Court, by agreement of counsel, a similar motion was made and heard in behalf of James Monroe Johnson.
Judge James A. Spruill, Jr., by his order dated March 22, 1962, sustained the plea in abatement made by respondent but denied the motion for abatement as made by James Monroe Johnson. In said order the Court found that the parties agreed that Collins could have filed a counterclaim in the Florence County action and could have likewise interpleaded Johnson and filed a cross complaint against him. Collins and Johnson have appealed to this Court from the aforesaid order.
The question for determination is whether the Court below erred in granting the motion of the respondent to abate the Darlington County action and to require the appellant Collins to file a counterclaim in the Florence County action. The practical question for determination is where an action for damages arising by tort from a collision between automobiles has been instituted by one of the parties he may successully plead the pendency of this action in bar to a later action brought against him by the opposing party in another county and have it abated, thereby requiring the defendant in the prior action, plaintiff in the second action, to set up his claim for damages by way of counterclaim in the prior action.
Counsel for the respondent contends that Section 10-652 of the Code, in a factual situation as the record here develops, provides for a mandatory counterclaim and does not afford the appellant, who was first sued, the alternative of filing a counterclaim or filing an independent action. It is the position of the appellant Collins that this section is not mandatory and that the party first sued has the option as to whether he will file a counterclaim or an independent action. The appellant relies on Section 10-705 of the Code which deals with counterclaims in tort actions.
This Court has said in a number of cases that one of the primary purposes for adopting the Code system of pleading was to avoid, as far as possible, a multiplicity of suits, and to enable parties to determine their differences in one action, thereby achieving resolution in a single law suit of all disputes arising out of common matters. Coastal Produce Ass'n v. Wilson, 193 S.C. 339, 8 S.E.2d 505; Victor Fertilizer Co. v. Southern Railway Company et al., 202 S.C. 294, 24 S.E.2d 499. The question arises as to whether the Code sections above referred to have, under the facts here admitted, accomplished this laudable purpose.
Section 10-705 of the Code provides:
'In all actions sounding in tort the defendant shall have the right to plead a similar cause of action against the plaintiff by way of counterclaim if the cause of action of the plaintiff and defendant arise out of the same state of facts.'
Section 10-652 of the Code provides:
'The answer of the defendant must contain:
'(1) A general or specific denial of each material allegation of the complaint controverted by the defendant or of any knowledge of information thereof sufficient to form a brlief; and
'(2) A statement of any new matter constituting a defense or counterclaim in ordinary and concise language without unnecessary repetition.'
The appellant Collins relies on the construction of Section 10-652 of the Code as is contained in the concurring opinion of Justice Woods in the case of Kirven v. Virginia-Carolina Chemical Company, 77 S.C. 493, 58 S.E. 424, 426. The main opinion was by Justice Gary with Justice Woods filing a special concurring opinion. In this opinion he interprets Section 10-652 of the Code as follows:
Chief Justice Pope filed a dissenting opinion in which his interpretation of the statute in question was the opposite of that of Justice Woods. It is thus apparent that Justice Woods considered the statute to be permissive as to the filing of a counterclaim, while Chief Justice Pope considered it to be mandatory. His language is as follows:
'* * * Attention is called to this for the purpose of emphasizing the word 'must' in the act now under consideration. The Legislature having used the term, this court must take for granted that it was used advisedly and for the purpose of remedying some existing evil. It has no authority to held that the term was used inadvertently. The act also provides that the defendant may set up as many defenses of counterclaims as he has, however inconsistent they are with each other. This is to give him the benefit of all his claims. Construing this clause with the whole act the strong implication is, if he fails to set up any one of his defenses or counterclaims, he is after judgment precluded from again asserting what might have been his right. This is the only construction consistent with the mandatory injunction as to what the answer shall contain. Of course, it does not apply to defenses or claims not included in the statute. The law gives the defendant an opportunity, but does not attempt to compel him to take advantage of it; that is, it does not attempt to say that he shall set up all of his claims and defenses.
Under our statute one action makes a finality. Pomeroy in his work on Remedies (section 804) says, in the absence of statutory provision, it is not necessary to plead counterclaims in defense. Impliedly, however, where statute does require it, all claims and defenses must be set up.'
It is provided in Section 10-703 of the Code that the counterclaim mentioned in Section 10-652 of the Code must be one existing in favor of a defendant against a plaintiff between whom a several judgment might be had in the action and arising out of one of the following causes of action: '(1) A cause of action arising out of the contract or transaction set forth in the complaint as the foundation of plaintiff's claim or connected with the subject of the action; * * *.' Section 10-704 of the Code gives the defendant the right to set forth...
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