Ex parte Goodyear Tire & Rubber Co., 18562
| Decision Date | 03 October 1966 |
| Docket Number | No. 18562,18562 |
| Parties | Ex parte GOODYEAR TIRE AND RUBBER COMPANY, Respondent. In re Deloris CANNON, by her Guardian ad Litem, Yvonne Cannon, Respondent, v. GOODYEAR TIRE AND RUBBER COMPANY, General Motors Corporation (ChevroletDivision), and W. Ray Long, Executor of the Estate of Gordon E. Long, Respondents, of whom W. Ray Long, Executor of the Estate of Gordon E. Long, isAppellant. Yvonne CANNON, Respondent, v. GOODYEAR TIRE AND RUBBER COMPANY, General Motors Corporation (ChevroletDivision), and W. Ray Long, Executor of the Estate of Gordon E. Long, Respondents, of whom W. Ray Long, Executor of the Estate of Gordon E. Long, isAppellant. Emma T. CANNON, Administratrix of the Estate of Melvin Cannon, Respondent, v. GOODYEAR TIRE AND RUBBER COMPANY, General Motors Corporation (ChevroletDivision), and W. Ray Long, Executor of the Estate of Gordon E. Long, Respondents, of whom W. Ray Long, Executor of the Estate of Gordon E. Long, isAppellant. |
| Court | South Carolina Supreme Court |
Nelson, Mullins, Grier & Scarborough, Columbia, for appellant.
McKay, McKay, Black & Walker, Whaley & McCutchen, Columbia, for respondent.
This is an appeal from an order of the circuit court granting a petition by Goodyear Tire and Rubber Company for an opportunity to inspect an allegedly defective automobile tire in the possession of W. Ray Long, executor of the estate of Gordon E. Long, deceased. The controversy arises from a collision between an automobile operated by Melvin Cannon and one operated by Gordon E. Long, which occurred in Lexington County on Octobr 28, 1963. Both drivers were killed, and Deloris Cannon and Yvonne Cannon, passengers in the Cannon automobile, were injured. Separate actions for the wrongful death of Melvin Cannon and for the injuries to Deloris and Yvonne were commenced against W. Ray Long, as executor of the estate of Gordon E. Long, and others. Goodyear was joined as a defendant upon allegations that it negligently manufactured and sold a defective tire, with which the Long automobile was equipped, and that the rupture of this tire was a cause of the fatal collision. Long, as executor, filed a cross-action against his co-defendant, Goodyear, upon similar allegations, and only he has appealed from the order allowing an inspection.
Goodyear's request of the executor for permission to inspect the tire in his possession having been refused, it commenced this special proceeding by service of a petition and rule to show cause why inspection should not be allowed. The petition was wittingly framed to invoke the equity jurisdiction of the court. It contains appropriate allegations as to the necessity for an inspection and the absence of a remedy at law, and appeals to the power of the chancery court to promote justice between litigants.
The court found that this proceeding is in equity, tht Goodyear cannot adequately prepare its defense in the law actions unless allowed an inspection of the tire before trial, including an opportunity for expert evaluation and study, and concluded that the relief sought should be granted as within the court's 'intrinsic and general powers to do justice.'
The appeal rests squarely upon the claim that the court exceeded its power by granting an inspection of the tire. Otherwise, the findings and conclusions below are unchallenged. Reliance is upon the decisions of this court in Welsh v. Gibbons, 211 S.C. 516, 46 S.E.2d 147, 175 A.L.R. 228, and Bailey v. Lyman Printing and Finishing Co., 245 S.C. 13, 138 S.E.2d 410. In Welsh, the defendant was a bottler of Coca-Cola and the action was for damages allegedly sustained by drinking from a bottle containing poisonous substances. The defendant moved for leave to have a chemical analysis made of the contents of the bottle, which was in the possession of plaintiff's attorney. This motion was refused on the ground that the court lacked power to grant the relief sought and this court affirmed. In Bailey, we held that defendant's motion for leave to take samples of paint from plaintiff's home, allegedly damaged by defendant's wrongful act in polluting a stream, was properly denied under the rule adopted in Welsh.
At first blush, these two decisions appear formidable precedents against affirmance of the order appealed from. However, in each of them, the issue arose on motion in a law case, with no attempt to invoke the equitable power of the court. The significance of the different course which has been pursued by resourceful counsel in this special proceeding becomes apparent when we consider that discovery was an original, inherent power of the courts of equity and was not allowed in law courts. The opinion in Welsh explicitly recognized this difference between the powers exercised by the two courts under the former practice, and affirmed the inherent power of a court of equity, in furtherance of justice, to allow an inspection of chattels or premises in the hands of an adverse party. We quote:
'The privilege before trial of inspection an article involved in an action and in possession of the other party was not accorded a litigant by the early common law courts of England. * * * This rule frequently resulted in a miscarriage of justice and hence there arose the equitable remedy of bills of discovery to assist the prosecution or defense of an action pending in the law court. The power to enforce discovery was one of the original and inherent powers of courts of equity and, according to the principles and practice of such courts, a bill could be filed for the discovery of facts in the knowledge of an adverse party, or of deeds or writings, or Other things in his custody and power. The distinction between the practice which prevailed in actions at law and that which obtained in chancery cases is stated as follows in Wigmore on Evidence, 2d Ed., Volume 3, Section 1862: 'So far as concerned chattels and premises in his possession or control, the adversary in common-law actions, like the true gamester that the law encouraged him to be, held safely the trump cards of the situation, free from any legal liability of disclosure before trial; in this respect there was not recognized even the limited right of inspection which after the days of Lord Mansfield had been conceded for documentary evidence. But in chancery, under the same wholesome principle and practice by which bills of discovery were allowed for ascertaining the opponent's testimony and the documents in his possession, The inspection of chattels and premises in his possession or control was obtainable wherever fairness seemed to demand it." (Emphasis ours.) 46 S.E.2d 148.
After pointing out that our discovery statutes, Sections 26--501 through 26--512, Code of 1962, which have largely supplanted the old practice, contain no provision authorizing the allowance of the inspection of a chattel, the opinion stated the issue for decision to be whether the court has power, in the absence of any legislation, to order such an inspection, and declared: 'We reluctantly conclude that the courts do not have the inherent power to grant the relief now sought by appellant.' 46 S.E.2d 150. Despite the generality of this language, the effectiveness of the court's conclusion as a precedent is limited to the precise point before it, i.e., that there was no error in the decision of the lower court that it lacked power to grant the relief on motion in a law case.
A different issue is presented here, i.e., whether in a special proceeding in equity, in aid of a cause of action or defense in a pending action at law, the court has inherent authority, in promotion of justice and in the absence of a remedy under the statute, to allow inspection of a chattel in possession of an adverse party. The broad statement in the Welsh opinion, that the Courts lack inherent power to allow inspection of a chattel, is not entitled to Stare decisis application in resolving this issue. 20 Am.Jur.2d Courts, Section 191; 21 C.J.S. Courts, § 186. Cohens v. Virginia, 6 Wheat. 264, 5 L. Ed. 257, quoted with approval in Johnson v. Atlantic Coast Line R.R. Co., 142 S.C. 125, 140 S.E. 443.
The wisdom of this rule is illustrated by the opinion in Welsh. The conclusion of the...
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