Hills v. Price
| Decision Date | 06 August 1948 |
| Docket Number | Civil Action No. 1917. |
| Citation | 79 F. Supp. 494 |
| Court | U.S. District Court — District of South Carolina |
| Parties | HILLS v. PRICE. |
Joseph J. Mulhern, of Boston, Mass., and Nelson, Mullins & Grier, and Belser & Belser, all of Columbia, S. C., for plaintiff.
Felder, Rosen & Horger, of Orangeburg, S. C., and Thomas, Cain & Black, of Columbia, S. C., for defendant.
This case is brought in this court because of diversity of citizenship of the parties and proper jurisdictional facts are alleged. The complaint alleges that the plaintiff was a passenger in an automobile which came into a collision with an automobile driven by the defendant, and the plaintiff suffered physical injuries. There are allegations of negligence in the operation of the car by the defendant. Three motions have been made and are here considered.
1. The first and most important is the motion by the defendant to make Herman E. Seifert a third party defendant. This is based upon the allegations that Seifert was the driver of the automobile in which the plaintiff Hills was riding and that the collision and resulting injuries were caused by the negligence of Seifert. And in the alternative, it is claimed that the collision was caused by the joint negligence of defendant and Seifert. And in the further alternative, it is claimed that the injuries were caused by the initial negligence of Seifert, so that the last named would be liable to the defendant for any judgment that might be obtained by Plaintiff.
There is no doubt but that the defendant has a right, under Rule 14 of the Federal Rules of Civil Procedure for the District Courts, 28 U.S.C.A. following section 723c, to move to have a third party defendant brought in, and that it is within the policy and practice of the Federal Courts to encourage the consolidation of trials and determination of all issues arising out of one transaction wherever possible. In this case we have a passenger in an automobile who alleges that the driver of the other automobile was negligent and that such negligence caused the collision and the results flowing therefrom. And the defendant comes in and says that she was not negligent, but that if there was negligence, it was joint negligence of her and the driver of the other car, or even if she was negligent to such an extent that the plaintiff might recover from her, she in turn has a right to call upon the driver of the other car to take care of such judgment as might be rendered against her, because the other driver was initially or more negligent. Considering this from the standpoint of abstract justice, it would seem as if the motion should be granted and that the position of the defendant is well taken. But before so deciding, it is necessary to consider what is the law governing this case. Under the doctrine of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, we must look to the law of South Carolina to determine the rights of the parties; that is, the substantive rights, and not merely the rules of procedure in the matter of making third party defendants. The first thing to be determined is whether the position of the defendant that she has any right of action over and against the driver of the other car is true and correct under the law of South Carolina.
An examination of the pertinent authorities will show that under the common law, a person having a cause of action may elect whom he will sue, and save in exceptional circumstances persons so sued have no right of action over and against a joint tort feasor. Union Stock Yards Co. v. Chicago B. & Q. R. Co., 196 U.S. 217, 224, 25 S.Ct. 226, 227, 49 L.Ed. 453, 2 Ann.Cas. 525, where it is said "* * * the general principle of law is well settled that one of several wrongdoers cannot recover against another wrongdoer, although he may have been compelled to pay all the damages for the wrong done." See also the very full Annotations in 85 A.L.R. 1091; 122 A.L.R. 520; 141 A.L.R. 1207. The outstanding exception to the rule is where suit is against a master and his sole responsibility is by reason of the delict of the servant acting in his behalf.
In a number of jurisdictions the legislatures have adopted statutes changing, modifying and ameliorating the hard rule of the common law as above stated. And in such jurisdictions, a defendant may bring in his joint tort feasor or one from who he claims indemnity. If the law of South Carolina has departed from this common law rule, either by legislative enactment or by construction of the courts, I should be not only constrained but glad to follow the same and allow the party alleged to be initially and primarily negligent to be brought into this court so that all the issues, contentions and claims between the respective parties could be heard and adjudicated at one trial. It is therefore necessary to examine the law of South Carolina to determine whether there has been such change or modification of the common law rule. The defendant has cited federal decisions sustaining his position. But my attention has been called to the fact that these decisions arise where the common law rule has been modified as above mentioned. The defendant argues that he is not attempting to force the plaintiff to sue another defendant but that he is in effect asking for ancillary relief by way of contribution or indemnity, and takes the flat position that if judgment be rendered against the defendant, he has a remedy against the driver of the other car and should not be forced to prove that by an independent suit, but that such driver should be brought in as a third party defendant and the whole matter adjudicated at one time.
No statute of the State of South Carolina has been pointed out to me that changes the common law rule. We therefore turn to the decisions of the South Carolina Supreme Court. It may be that both drivers of the cars are liable and the plaintiff could sue either, but the plaintiff takes the position that he may elect which party to sue and that if he can prove negligence against any one of the tort feasors, he is not in any way bound to bring in another. See Simon v. Strock, ...
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