Ellison v. Simmons, 17789

• Citation: 238 S.C. 364,120 S.E.2d 209
• Decision Date: 29 May 1961
• Docket Number: No. 17789,17789
• Court: United States State Supreme Court of South Carolina
• Parties: Fred Calvin ELLISON and William Roy Ellison, Executors of the Estate of Fred G. Ellison, Respondents, v. Woodrow SIMMONS, Appellant.

Page 209

120 S.E.2d 209

238 S.C. 364

Fred Calvin ELLISON and William Roy Ellison, Executors of

the Estate of Fred G. Ellison, Respondents, v. Woodrow SIMMONS, Appellant.

No. 17789.

Supreme Court of South Carolina.

May 29, 1961.

Hood & Hood, Anderson, for appellant.

Sherard & McIntosh, E. Harry Agnew, Anderson, for respondent.

MOSS, Justice.

This action was brought by Fred Calvin Ellison and William Roy Ellison, as executors of the estate of Fred G. Ellison, deceased, the respondents herein, against Woodrow Simmons, the appellant herein, to recover damages for the wrongful death of Fred G. Ellison. The action was brought pursuant to Section 10-1951 et seq., 1952 Code of Laws of South Carolina, for the benefit of the widow and three adult children of the deceased. The answer of the appellant contained a general denial and alleged as a defense that the death of the respondents' testate was caused and occasioned by his contributory negligence and willfullness. The case was tried before the Honorable J. B. Pruitt, Resident Judge of the Tenth Circuit, and a jury, and resulted in a verdict in favor of the respondents for actual and punitive damages.

The record shows that on February 5, 1959, an automobile owned and driven by the appellant collided with an automobile owned and driven by Fred G. Ellison, respondents' testate, and as a result of injuries sustained Fred G. Ellison died. The appellant, as a result of the collision, received personal injuries and his automobile was demolished. As is heretofore stated, the respondents instituted this action, in their representative capacity, to recover damages for the wrongful death of the said Fred G. Ellison. In this action the appellant did not counterclaim. However, in the trial of the instant case, the appellant attempted to offer evidence that he had entered suit against the Ellison Estate for personal injuries and the demolishment of his automobile. Upon objection being made to the admission of such testimony by counsel for the respondents, the trial Judge sustained such objection and refused to allow the appellant to show that he had a suit pending against the Ellison Estate for damages.

The trial Judge likewise refused to charge a request of the appellant that in a wrongful death action the appellant was not allowed, by law, to interpose a counterclaim but must bring a separate action for any damages alleged to have been sustained by him. The appellant alleges that the trial Judge was in error in his refusal to admit evidence that he had brought a separate suit against the Ellison Estate, and in his refusal to charge the jury, pursuant to request, that he was not allowed by law to interpose a counterclaim in the instant action but must bring a separate suit for injuries and damages allegedly suffered by him.

In the case of Complete Auto Transit, Inc. v. Bass, 229 S.C. 607, 93 S.E.2d 912, 913, this Court held that the owner of a tractor-trailer did not have the right to assert a counterclaim for damage to his truck in an action brought by the executrix against the owner for wrongful death. In this case it was said:

'The issue before us, then, is whether or not, under the law of this State, respondent had the right to assert, in the action by the executrix against it for wrongful death, a counterclaim for damage to its truck. The precise question has not heretofore been passed upon by this court; but, as the learned circuit judge pointed out in his order now under appeal, the reasoning in Bennett v. Spartanburg Railway, Gas & Electric Co., 97 S.C. 27, 81 S.E. 189, clearly indicates that it should be answered in the negative.'

It is thus apparent that the appellant had no cause of action for damage to his person or property against the respondents in their capacity as representatives of the beneficiaries of the cause of action for wrongful death, and could not assert such a cause of action by way of counterclaim.

Since the appellant could not interpose a counterclaim in this action, was it proper for him to offer evidence that he had an action pending against the Ellison Estate for his damages? In determining a dispute concerning the relevancy of proffered evidence, the question to be resolved is as to whether there is a logical or rational connection between the fact which is sought to be proved and a matter of fact which has been made an issue in the case.

In the case of Dickson's Drug Store, Inc. v. Davis, 197 S.C. 294, 15 S.E.2d 332, it was held that testimony is relevant which renders it properly applicable in determining the truth and falsity of matters in issue between the parties to the suit. In Francis v. Mauldin et al., 215 S.C. 374, 55 S.E.2d 337, it was held that all that is required to render evidence admissible is that fact shown thereby legally tends to prove, or make more or less probable, some matter in issue, and bear directly or indirectly thereon.

The case of Central New York Coach Lines v. Syracuse Herald Co., 277 N.Y. 110, 13 N.E.2d 598, 599, was an action by a bus company for damages caused to its bus in a collision between the bus and the defendant's vehicle while being driven by defendant's employee who was killed in the collision. The decision turned upon the question whether a wrongful death action formerly instituted by the deceased employee's administrator against the bus company, in which the company filed a counterclaim for damages to its bus, resulting in a verdict in favor of the plaintiff, was res judicata as to the present action. In holding that it was not, the Court stated that since the administrator's action, as originally brought, was for the sole benefit of the statutory beneficiaries, no claim of the bus company against the general estate of the decedent tended 'to diminish or defeat the plaintiff's recovery', making the counterclaim attempted to be set up invalid in itself.

We quote from the case of Complete Auto Transit, Inc. v. Bass, supra:

'Appellant suggests that the only real difference between the functions of the executrix as representative of the estate on the one hand and as representative of the statutory beneficiaries of the cause of action for wrongful death on the other is in relation to the distribution of the proceeds of recovery in her hands. But the distinction is deeper than that. For example, recovery against her on the cause of action for property damage would not operate to reduce by a penny her recovery on the cause of action for wrongful death. Nor could recovery by her on the cause of action for wrongful death offset her liability under a judgment against her for the property damage. The two claims,--her own against respondent for wrongful death, and respondent's against her for property damage,--are in nowise reciprocal. In reality, she functions under two separate and distinct trusteeships having no relationship to each other beyond the fact that their origin is referable to the death of the same person.'

The fact that appellant had pending a cause of action against the respondent as representative of the estate of the testate, could not operate to diminish or reduce respondents' recovery on the cause of action for wrongful death of their testate. The evidence of the pendency of the appellant's independent action was inadmissible. However, we should point out that the appellant had full opportunity to make out his defense of contributory negligence and willfullness, and he was not precluded from so doing by the inadmissibility of the evidence relating to the fact that he had a separate action pending for his injury and...