Huggins v. Winn-Dixie Greenville, Inc., WINN-DIXIE

• Decision Date: 06 March 1969
• Docket Number: WINN-DIXIE,No. 18886,18886
• Citation: 166 S.E.2d 297,252 S.C. 353
• Court: South Carolina Supreme Court
• Parties: B. C. HUGGINS, Respondent, v.GREENVILLE, INC., Appellant.

Page 297

166 S.E.2d 297

252 S.C. 353

B. C. HUGGINS, Respondent, v. WINN-DIXIE GREENVILLE, INC., Appellant.

No. 18886.

Supreme Court of South Carolina.

March 6, 1969.

McDonald & McDonald, Winnsboro, Fulmer, Barnes, Berry & Austin, Columbia, for appellant.

John Martin and T. B. Barrineau, Jr., Winnsboro, Henry H. Edens, Henry Hammer, Columbia, for respondent.

BUSSEY, Justice.

The plaintiff-respondent sued the defendant-appellant on two causes of action, one for malicious prosecution, and the other for abuse of process. Upon a former trial the jury found for the defendant on the cause of action for malicious prosecution, but for the plaintiff on the cause of action for abuse of process. Upon appeal, we reversed and remanded for a new trial of the cause of action for abuse of process. Huggins v. Winn-Dixie Greenville, Inc., 249 S.C. 206, 153 S.E.2d 693 (1967).

The evidence as to the facts was fairly fully stated in the opinion on the former appeal and the facts will not now be repeated except to the extent necessary. Upon the new trial the verdict of the jury awarded the plaintiff actual damages in the amount of $40,000.00, and punitive damages in the amount of $15,000.00. The instant appeal is from an order of the trial judge denying defendant's motion for judgment non obstante verdicto and its alternative motion for a new trial or a new trial nisi. The exceptions on appeal are twenty-one in number, but some of them have been clearly abandoned, the defendant not having argued the same in its brief. There is some doubt as to whether still others have or have not been abandoned, but we shall attempt to decide all questions which we deem to be properly before us.

Several exceptions and a substantial portion of defendant's brief are devoted to the contention that the trial judge should have granted a judgment non obstante veredicto in favor of the defendant on the ground of insufficiency of evidence to prove a cause of action for abuse of process. We are urged to overrule our decision on the former appeal wherein we held that the evidence was sufficient to go to the jury. There is no substantial difference between the evidence on the former trial and the evidence upon the latter trial. It is well settled in this jurisdiction that a decision of this court on a former appeal is the law of the case. The questions therein decided are res judicata and this court will not on a subsequent appeal review its former decision. See cases collected in West's South Carolina Digest, Appeal and Error, k1097 and k1099. We are not convinced that our former opinion was erroneous, but even if it were, we are precluded, under the settled rule, from reviewing it on this subsequent appeal.

After remand, the case was set for trial at the term of court commencing Monday, June 5, 1967. On the Thursday preceding, the defendant argued a motion for a change of venue, which was refused. At that time, counsel for defendant requested an amended complaint to be filed, and stated that if such were not filed, omitting the cause of action for malicious prosecution, he intended to object to the complaint being given to the jury. In compliance therewith, counsel for plaintiff on the next day served upon counsel for defendant an amended complaint. The defendant then filed a motion to strike certain portions of the amended complaint and to require plaintiff to reduce the prayer thereof to $40,000.00. In the alternative, the defendant moved for a continuance. Such motions were heard and refused on the morning of June 7th, and at 2:30 that afternoon the trial commenced.

The original complaint, of course, stated two causes of action, the first stated being for malicious prosecution. The second stated cause of action therein stated, for abuse of process, reiterated the first eight paragraphs of the first alleged cause of action and then went on to state additional facts pertinent to the cause of action for abuse of process. The damages allegedly sustained by the plaintiff, in each of the alleged causes of action, were identical and the plaintiff alleged his total damage to be the sum of $80,000.00, but so drafted his complaint as to allocate $40,000.00 thereof to each of the alleged causes of action. When the original complaint and the amended complaint are analyzed, with respect to the cause of action for abuse of process, the amended complaint really changed nothing except that the plaintiff sought to recover his total alleged damage in the amount of $80,000.00 in the single cause of action left to him.

The prayer of the amended complaint was the same as the prayer of the original complaint. If attributing all of plaintiff's alleged damage to a single cause of action, instead of attributing such to two causes of action, constituted an amendment, such amendment was clearly within the discretion of the trial judge, as it only increased the ad damnum with respect to the single cause of action remaining. Pickett v. Southern R. Co., Carolina Division, 74 S.C. 236, 54 S.E. 375 (1906).

An examination of the complaint shows that the allegations in the amended complaint which the trial judge refused to strike were contained either verbatim, by reference, or in substantially the same language in the statement of the cause of action for abuse of process in the original complaint. A motion to strike is generally addressed to the sound discretion of the judge. Assuming, without deciding, that the objected to portions of the amended complaint were properly subject to a motion to strike, the motion on the eve of trial was not timely and was, for that reason, we think, properly refused.

Circuit Court Rule 20 requires motions to strike to be noticed before demurring or answering the pleading, and within twenty days from the service thereof. The motion to strike in the instant case was based on the contention that the amended complaint contained allegations which were pertinent only to a cause of action for malicious prosecution and not pertinent to a cause of action for abuse of process. Admittedly, there was no practical reason for the defendant moving, within twenty days from the service of the original complaint, to strike the allegations now complained of from the second cause of action alleged therein, since they would have still been contained in the cause of action stated for malicious prosecution.

This cause, however, was remanded for a new trial on or about March 23, 1967. The defendant knew then the contents of the complaint as to the single cause of action remaining. If any portion thereof was deemed objectionable, both the letter and the spirit of Rule 20 would require the defendant to notice its motion to strike, at least quite promptly.

In the course of the trial, defendant's manager testified to the effect, as he did on the first trial, that in the course of his effort to collect from the plaintiff ten dollars for merchandise he felt the plaintiff had previously taken, he became apprehensive of a civil law suit against the defendant and felt that calling the police would improve the situation of the defendant in the...