Holcombe v. Garland & Denwiddie, Inc.

• Decision Date: 26 October 1931
• Docket Number: 13261.
• Citation: 160 S.E. 881,162 S.C. 379
• Parties: HOLCOMBE v. GARLAND & DENWIDDIE, Inc.
• Court: South Carolina Supreme Court

160 S.E. 881

162 S.C. 379

HOLCOMBE v. GARLAND & DENWIDDIE, Inc.

No. 13261.

Supreme Court of South Carolina

October 26, 1931

Appeal from Common Pleas Circuit Court of Greenville County; E. C Dennis, Judge.

Action by W. C. Holcombe against Garland & Denwiddie, Incorporated. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

Hicks & Johnston, of Greenville, for appellant.

Martin & Bolt, of Greenville, for respondent.

BONHAM J.

Here is the brief "statement" of the issue submitted to this court: "Appeal from an order refusing to allow defendant to plead a recovery in an action for personal injuries as a bar to an action for personal damages-- all of which arose out of the same negligent act of the defendant."

History.

The case arose as follows: October 10, 1929, W. C. Holcombe began an action in the court of common pleas against Garland & Denwiddie, Inc. The complaint alleged personal injuries resulting from an automobile accident which occurred July 22 1929, and asked for $5,000 actual and punitive damages. The case was removed to the federal court for the Western district on October 28. Defendant answered in due time entering a general denial.

November 21, 1929, plaintiff brought a second action in the court of common pleas against the same defendant, alleging damage to personal property (his horse and wagon), arising out of the same accident, and asked for $2,900 damages, actual and punitive.

Defendant answered the case in the court of common pleas, setting up two defenses: First, a denial; second, in the first paragraph it alleged the bringing of the first action above set forth in the second paragraph it alleged that the causes of action were identical, and that the action in the court of common pleas was merely asking for additional damages, and was therefore undue and unnecessary litigation, and in the third paragraph that the first case had been removed to the federal court and was still pending therein.

The action in the federal court resulted in a verdict for plaintiff in the sum of $2,500 actual damages.

September 6, 1930, Judge Dennis heard and granted a motion by plaintiff to strike out the three paragraphs of the second defense, on the ground that the same "is irrelevant and constitutes no defense to plaintiff's cause of action."

The same day defendant made a motion before Judge Dennis to be allowed to file an amended answer by which it was proposed to plead the action for personal injuries in the federal court, the verdict, the judgment, and satisfaction of same by defendant, and "that the said verdict and judgment is res adjudicata of the cause of action set forth in the complaint in the present action and is pleaded as a bar to this proceeding."

The motion to amend was first granted, but the next day it was refused in a short order.

His honor held that proceeding with the trial would not waive any objection to the ruling on the motion to amend. Accordingly, the trial was ordered and had, and resulted in a verdict for plaintiff for $100 actual, and $200 punitive, damages.

A motion for new trial was made on the grounds: (1) There was error in striking out the amended answer which set out the judgment and satisfaction in the federal court as a bar; (2) in ordering defendant to trial on the answer as it stood without the amendment. The motion was refused. Defendant appeals on three exceptions, as follows: (1) It was error to strike out the amended answer which pleaded the judgment and satisfaction in the federal court as a bar to this action; (2) In excluding testimony to prove said judgment and satisfaction; (3) In refusing the motion for new trial on the ground that there was no error in striking out the stricken part of the answer.

Appellant clearly and succinctly states the underlying proposition which will determine the appeal. "One question is raised by this appeal, it is this: Where respondent is driving his wagon on the public highway and an automobile negligently strikes and injures his person and his personal property by one and the same act at one and the same time, does respondent have one cause of action in which he must recover all the damage he suffers, or two causes of action; one for injury to his person and a second for injury to his personal property?"

It excites surprise to find that this exact question has not been expressly decided in this state. There are cases, some of which will be hereinafter noticed, which decide that given facts do or do not constitute more than one cause of action.

Appellant's argument evinces thorough examination of the authorities, and a close reasoning from principles. One is reminded of what Mr. Associate Justice Curtis of the United States Supreme Court said upon the occasion of the death of Mr. Chief Justice Taney, to wit: "His power of subtle analysis exceeded that of any man I ever knew; a power not without its dangers to a judge, as well as to a lawyer."

This comparison is not made in a spirit of hypercriticism, but for the purpose of suggesting that a too great refinement of analysis may lead one away from the basic principle with which an argument began, and load the thesis with unnecessary repetition and citations.

Do the facts of this case entitle the plaintiff to bring two actions? Do they state more than one cause of action?

We will use freely appellant's brief and the authorities there cited.

What constitutes a cause of action?

"Every judicial action must, therefore, involve the following elements; a primary right possessed by the plaintiff and a corresponding primary duty devolving upon the defendant; a delict or wrong done by the defendant which consisted in a breach of such primary right and duty; a remedial right in favor of the plaintiff, and a remedial duty resting upon the defendant springing from this delict, and finally the remedy or relief itself.

"Every action however complicated or however simple must contain these essential elements. Of these elements, the primary right and duty and the delict or wrong, combined, constitute the cause of action in the legal sense of the term, and as it is used in the codes of the several States." Pomeroy's Code Remedies (4th Ed.) § 347, page 460.

"The cause of action is the right claimed or the wrong suffered by the plaintiff on the one hand, and the duty or delict of defendant on the other." Hayes v. Clinkscales, 9 S . C. 450; Rodgers v. Mutual, etc., Ass'n, 17 S.C. 406-410; Columbia Nat. Bank v. Rizer, 153 S.C. 55, 150 S.E. 316, 68 A. L. R. 443.

It is unnecessary to add to these clear definitions of a cause of action. The difficulty in every case is to apply the facts to this principle.

The rule of application is thus stated in Pomeroy's Code Remedies (4th Ed.) § 349 page 465: "If the facts alleged show one primary right of plaintiff, and one wrong done by the defendant, which involves that right, the plaintiff has stated but a single cause of action, no matter how many forms or kinds of relief he may claim that he is entitled to and may ask to recover; the relief is no part of the cause of action." (Italics added.)

Applying this rule to the facts of this case, it appears that the plaintiff was using the highway, which he had a right to do, in safety. That defendant wrongfully invaded that right by driving his automobile against the wagon in which plaintiff was driving. Here the cause of action is complete; plaintiff's primary right to be on the highway combined with defendant's wrongful act of invasion of that right. A single cause of action. But it is argued that plaintiff suffered damages not only to his person but to his property for which he is entitled to damages, and he is entitled to punitive damages for defendant's willful conduct. If all that be conceded, it remains true that the remedy is no part of the cause of action. The plaintiff may in one action declare upon each one of his claims for damages. He may not harass defendant with a multiplicity of suits by making of each element of damage a separate cause of action.

In Threatt v. Brewer Mining Co., 49 S.C. 95, 26 S.E. 970, 981, the issue arose when plaintiff sought damages for injury, by the milling operations of the defendant, to plaintiff's bottom land, and for other items set out in the claim. A motion was made to require plaintiff to elect on which cause of action he would proceed, which motion was refused; the circuit judge held that there was but one cause of action stated. This ruling was made a ground of appeal by defendant. Delivering the opinion of the court, Mr. Justice Pope said: "What the plaintiff in the case at bar really seeks is to prevent the defendant, through its milling operations, from invading his right of property. The injury to his bottom land is one element in this invasion of his right of property; the injury to his right to water his stock in the stream is another element; the injury to pure air at his home is another element; the injury to his fishing privilege in such stream is another element; the injury to the two neighborhood roads is another element; the injury to his ditches another element; and the injury to the air he breathes while in his bottom lands is another element. All these elements enter in to complete the alleged wrong to plaintiff by this defendant through his milling operations. The circuit judge evidently took this view of the complaint when he overruled this objection to it. We take the same view.

The irresistible conclusion from this opinion is that, if plaintiff had sought to make each of these elements of damage the basis of an action, he could not have maintained such separate actions, because there was only one primary right and one primary wrong.

In the case of Perry v. Jefferies, 61 S.C. 292, 39 S.E 515, ...