Doctor v. Robert Lee, Inc.

• Decision Date: 02 September 1949
• Docket Number: 16258.
• Citation: 55 S.E.2d 68,215 S.C. 332
• Parties: DOCTOR v. ROBERT LEE, Inc.
• Court: South Carolina Supreme Court

55 S.E.2d 68

215 S.C. 332

DOCTOR v. ROBERT LEE, Inc.

No. 16258.

Supreme Court of South Carolina

September 2, 1949

Herbert & Dial, Columbia, for appellant.

T B. Bryant, Jr. Orangeburg, Felder, Rosen & Horger Orangeburg, for respondent.

TAYLOR, Justice.

This appeal arises out of an action commenced the 7th day of July 1948, for damages allegedly suffered when the plaintiff's automobile was in a collision with a water tank of the defendant, Robert Lee, Inc., which was alleged to have been negligently placed across South Carolina Highway No. 45 immediately south of Eutaw Springs. The defendant moved before the Honorable W. H. Grimball in the Circuit Court for an order making C. A. Harvin, Jr., of Summerton, South Carolina, and American Fidelity and Casualty Insurance Company, parties defendants on the grounds that the said C A. Harvin Jr., was the owner of and operating, as an independent contractor, a tractor, pulling the said water tank with which the car of the plaintiff collided, and if there was negligence, it was that of said C. A. Harvin, Jr. or his agent and that the said C. A. Harvin, Jr., was operating under a certificate of convenience and necessity issued by the South Carolina Public Service Commission, and the American Fidelity and Casualty Insurance Company had issued its policy of insurance covering the said C. A. Harvin, Jr., as provided for by the statutes of South Carolina, and that they are therefore proper and necessary parties defendants in order to avoid a multiplicity of suits.

Further that the primary liability, if any, lies upon the said C. A. Harvin, Jr., and the said insurance carrier and further that should it be determined that there is any liability of the defendant to the plaintiff that the said defendant would be entitled to recover over against the said C. A. Harvin, Jr., and said insurance carrier.

After hearing arguments from both sides, the Honorable W. H. Grimball filed his order dated December 31, 1948, refusing said motion, stating: 'I have given careful consideration to the question presented and am of the opinion that the proposed defendants are not necessary parties to the determination of the rights of the parties to this cause.'

The defendants now appeal to this Court upon exceptions which present the question of whether or not it was error not to order the defendants, C. A. Harvin, Jr., and his insurance carrier, made parties defendants.

Section 404, Vol. I, 1942 Code for South Carolina, provides: 'Who may be defendants.--Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the questions involved therein, and in an action to recover the possession of real estate, the landlord and tenant thereof may be joined as defendants; and any person claiming title or a right of possession to real estate may be parties plaintiff or defendant, as the case may require, to any such actions.'

And Section 657, Subdivision 1, reads as follows: 'Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants, and it may determine the ultimate rights of the parties on each side, as between themselves.'

Appellant relies strongly upon the case of Miller & Barnhardt v. Gulf and Atlantic Insurance Company, 132 S.C. 78, 129 S.E. 131, to sustain his contention that the additional parties defendants should be brought in to avoid a multiplicity of suits.

However in the recent case of Simon, et al. v. Strock, 209 S.C. 134, 39 S.E.2d 209, 211, 168 A.L.R. 596, this Court, discussing Sections 404 and 409 of the 1942 Code, said: 'Sections 404 and 409, Code of 1942, have 'been liberally construed for the purpose of bringing before the court all parties who may be necessary to a complete determination or settlement of all questions...