Hollifield v. Keller

• Decision Date: 31 July 1961
• Docket Number: No. 17814,17814
• Citation: 238 S.C. 584,121 S.E.2d 213
• Court: South Carolina Supreme Court
• Parties: Mrs. Katherine M. HOLLIFIELD, Respondent, v. Louie H. KELLER, d/b/a The Goody Shoppe, William Lasley, and The City of Columbia, South Carolina, of whom The City of Columbia, South Carolina is, Appellant. Joseph G. HOLLIFIELD, Respondent, v. Louie H. KELLER, d/b/a The Goody Shoppe, William Lasley, and The City of Columbia, South Carolina, of whom The City of Columbia, South Carolina is, Appellant.

Page 213

121 S.E.2d 213

238 S.C. 584

Mrs. Katherine M. HOLLIFIELD, Respondent, v. Louie H. KELLER, d/b/a The Goody Shoppe, William Lasley, and The City of Columbia, South Carolina, of whom The

City of Columbia, South Carolina is, Appellant.

Joseph G. HOLLIFIELD, Respondent, v. Louie H. KELLER, d/b/a The Goody Shoppe, William Lasley, and The City of Columbia, South Carolina, of whom The

City of Columbia, South Carolina is, Appellant.

No. 17814.

Supreme Court of South Carolina.

July 31, 1961.

John W. Sholenberger, Edward Harter, Columbia, for appellants.

Winter & Winter, Columbia, for respondents.

MOSS, Justice.

There are two separate appeals involved in this case. The City of Columbia, South Carolina, is appellant in each case. The respondents are Katherine M. Hollifield and Joseph G. Hollifield, husband and wife.

The complaint in the wife's case alleges that William Lasley, one of the defendants, owns a building fronting on Devine Street in the City of Columbia, South Carolina, and that he leases such building to Louie H. Keller, also a defendant, who operates in said building a place of business known as The Goody Shoppe. The complaint alleges that on top of the building is a freezing unit tower which uses a large volume of water, and the water therefrom flows down through a drainpipe and out into an alley way between the Goody Shoppe building and that of an adjacent owner. It is further alleged that on February 8, 1960, that the temperature was below freezing and the water that was discharged from the freezing unit tower flowed onto Devine Street and there became frozen and formed a sheet of ice over a portion of said street. It is further alleged that while Katherine M. Hollifield, one of the respondents herein, was driving an automobile over and along the said Devine Street, it skidded or slipped on the ice and crashed into a telephone pole, resulting in serious and painful bodily injuries to her. The cause of action against the City of Columbia, South Carolina, the appellant herein, was brought under Section 47-70 of the 1952 Code of Laws, as amended it being asserted that the negligent acts and omissions on the part of the City of Columbia, combined with the negligent acts and omissions on the part of the other defendants, proximately caused the respondent's injuries.

The City of Columbia moved to strike from said complaint (1) The allegations in both causes of action characterizing the acts of the appellant and the other defendants as willful and wanton; and (2) The word 'painful' used in describing respondent's injuries. The City of Columbia demurred to the complaint on the ground that several causes of action have been improperly united, in that said causes of action affect the various parties differently.

The motion to strike and the demurrer were heard by the Honorable James M. Brailsford, Jr., presiding Judge, and on November 30, 1960, he handed down an order overruling the demurrer, requiring the words 'willful' and 'wanton' to be stricken from the complaint, and refusing to strike the word 'painful' from said complaint, but reserving to the appellant the right to raise this question upon the trial of the case.

The action by Joseph G. Hollifield, the husband of Katherine M. Hollifield, was commenced on the same day that she instituted her action. However, his action was brought in the Richland County Court and the allegations in his complaint, with regard to the injuries to his wife and the acts and omissions of the defendants Louie H. Keller and William Lasley, and the acts of the appellant, are substantially the same, except that he characterizes the said acts as not only negligent, but 'reckless, willful and wanton.' In addition, he alleges that it was the duty of the City of Columbia to keep Devine Street cleared of hazardous and defective conditions, or at least to warn the public of the impending danger caused by the ice coating on said street. He further alleges that the injuries to his wife were proximately caused by the negligent, willful and wanton acts on the part of the City of Columbia, combining with such acts on the part of the other defendants. He further alleges that as a result of the serious and painful injuries to his wife he has lost her services and his right of consortium.

The City of Columbia moved to strike from said complaint (1) the allegations in both causes of action characterizing the acts of the appellant and other defendants as reckless, willful and wanton; (2) of serious and painful injuries to respondent's wife; (3) of respondent's loss of consortium, and (4) setting out respondent's theory of the appellant's duty under the circumstances. The City also demurred to the complaint on the ground that several causes of action have been improperly united, in that said causes of action affect the various parties differently.

The motion to strike and the demurrer were heard by the Honorable Legare Bates, Judge of the Richland County Court, and on August 9, 1960, he handed down an order overruling the demurrer and the motion to strike.

The first question for determination is whether or not a cause of action against the appellant, under Section 47-70 of the 1952 Code of Laws, as amended, may be joined with a cause of action in tort against the other defendants.

The complaint, in each of the cases is divided into two causes of action. It is alleged that the injury to Katherine M. Hollifield was occasioned by the negligence of the defendants, Louie H. Keller and William Lasley, in allowing water to flow from their premises onto the street; and that the appellant was negligent in permitting the water to collect and remain upon said street where it became frozen, and as a result thereof caused the respondent's car to skid, resulting in injury to her. It thus appears that the complaint states only one cause of action against the defendants and the appellant, and charges them with negligence as joint tort-feasors. The only distinction made by separation and designation as two causes of action is the difference in amounts of damage claimed against the respective parties.

We have held that one who has sustained injury as the result of joint or concurrent negligence may, at his election, proceed against one, or several, or all of the joint tort-feasors. Johns et al. v. Castles, 229 S.C. 51, 91 S.E.2d 721.

In the case of Pendleton v. Columbia Ry., Gas & Electric Co. et al., 133 S.C. 326, 131 S.E. 265, 267, the Court said:

'That a single injury, which is the proximate result of the separate and independent acts of negligence of two or more parties, subjects the tort-feasors, even in the absence of community of design or concert of action, to a liability which is both joint and several, is a proposition recognized and approved in this state and supported by the great weight of authority elsewhere. Matthews v. Seaboard Air Line Railway, 67 S.C. 499, 514, 46 S.E. 335, 65 L.R.A. 286. Steele v. Atlantic Coast Line Railroad Co., 95 S.C. 124, 126, 78 S.E. 705; Cooley on Torts (3d Ed.), p. 246; 38 Cyc., 488. Since the liability of such tort-feasors is both joint and several, it is well settled that the law gives to the injured party the option of suing two or more of the parties liable jointly; that is, as defendants in one action, or of suing each upon his several liability in a separate action. And since the injured party's right to join two or more alleged tort-feasors in one action may be sustained only upon the theory of joint liability, when a plaintiff joins two or more alleged wrongdoers as parties defendant in one action, such joinder in itself necessarily implies that he has elected to treat his injury as a joint tort, and to recover upon the theory of joint liability. * * *'

The case of Clarke v. City of Greer et al., 231 S.C. 327, 98 S.E.2d 751, 752, was a landowners action against the City of Greer and Reed & Abee, Inc., general contractor, to recover damages for unlawful entering upon such lanowners tract of land and laying sewer lines through said property. The complaint contained two causes of action, separately stated. The first cause of action charges the City of Greer with making an unlawful entry upon and taking of plaintiff's property for a public use without just compensation being first made therefor. Article I, Section 17, of the 1895 Constituion of South Carolina. The second cause of action alleges a trespass by the contractor and seeks to recover actual and punitive damages therefor. The defendants interposed a demurrer to the complaint upon the ground that the two causes of action are improperly joined in the complaint. We held that these two causes of action may not be united in the same complaint, and in so doing it was stated that the first cause of action is one under the Constitution of this State, and the second one is a common law action in tort for an alleged trespass. The nature and measure of damages recoverable in the two actions are different. We further held that there was no basis for joint or common liability against the two defendants. We quote from the Opinion the following:

'The only question we need consider is whether the two causes of action may be joined in the same complaint. Section 10-701 of the 1952 Code permits the plaintiff to unite in the same complaint several causes of action when they arise out of the same transaction, but the causes of action so united must, except in actions for foreclosure of mortgages, 'affect all the parties to the action.' Assuming that both of the causes of action here arise out of the same transaction, there remains the crucial question of whether each affects both parties defendant.

"As a general rule, in order to authorize a joinder, the causes must affect the different defendants in such manner as to create a joint or common liability or the defendants must have a joint or common interest.' 1 C.J.S. Actions § 98, p. 1287.'

Under Section 47-70 of the 1952 Code of Laws of South...