Hughes v. Water World Water Slide, Inc., 24030

• Court: United States State Supreme Court of South Carolina
• Citation: 314 S.C. 211,442 S.E.2d 584
• Docket Number: No. 24030,24030
• Parties: Kim T. HUGHES, Appellant, v. WATER WORLD WATER SLIDE, INC., Respondent. . Heard
• Decision Date: 18 January 1994

Page 584

442 S.E.2d 584 314 S.C. 211 Kim T. HUGHES, Appellant,
v.
WATER WORLD WATER SLIDE, INC., Respondent. No. 24030. Supreme Court of South Carolina. Heard Jan. 18, 1994.
Decided March 21, 1994.

Page 585

John P. Bacot, Jr., Surfside Beach, for appellant.

[314 S.C. 212] Arrigo P. Carotti and Mary Ruth M. Baxter, both of McCutcheon, McCutcheon & Baxter, P.A., Conway, for respondent.

TOAL, Justice:

Kim Hughes ("Plaintiff") filed a summons and complaint and delivered these papers to the sheriff of Horry County for service. Service was effected on the president of Wet World, Inc. ("Defendant") during the period provided under 3(b), SCRCP, but after the running of the statute of limitations. The original summons and complaint misnamed the Defendant. The trial judge dismissed the action as barred by the statute of limitations. We REVERSE.

FACTS

The Plaintiff, a police officer, was injured on August 12, 1988 when he fell in a hole on Defendant's premises while in pursuit of a burglar. The Plaintiff filed a summons and complaint on August 12, 1991, the deadline under the statute of limitations. On the same day, the Plaintiff's attorney delivered to the sheriff's office of Horry County a copy of the summons and complaint for service upon the Defendant. In the summons and complaint, the Defendant was named as "Water World Water Slide, Inc." The true name of the corporation is "Wet World, Inc." An amended summons and complaint were filed on October 28, 1991 naming "Wet World, Inc." as the Defendant.

The original summons and complaint were served upon the president of the corporation, William H. Alford, on August 15, 1991. William Alford was also present the night of Plaintiff's injury. The Plaintiff's error in the name of the corporation resulted from Plaintiff's reliance on the sign in front of the business and the Defendant's insurer's reference to its insured as "Wet World Waterslide."

The trial judge dismissed the action, ruling that (1) no action was brought against "Wet World, Inc." within the statutory period, and (2) Rule 3(a), SCRCP, requires the service of the summons and complaint within the statutory period.

[314 S.C. 213] LAW/ANALYSIS

We granted Defendant's motion to argue against precedent as to the applicability of Rule 3(b), SCRCP, to resident defendants. In Garner v. Houck, --- S.C. ----, 435 S.E.2d 847 (1993), this Court held that a defendant does not have to be absent from the State in order for the plaintiff to take advantage of Rule 3(b). Under Rule 3(b), the statute of limitations is tolled once the plaintiff files a summons and complaint and delivers the summons and complaint to the sheriff of the county where the defendant resides for service upon the defendant. We believe our reasoning in Garner to be sound. Rule 3(b), SCRCP, applies to both resident and absent defendants. We, therefore, decline to reverse Garner, supra. The statute of limitations in this case was tolled when the Plaintiff delivered the summons and complaint to the sheriff in...