Kemmerlin v. Bloom, 18768

Decision Date07 March 1968
Docket NumberNo. 18768,18768
Citation159 S.E.2d 910,251 S.C. 49
CourtSouth Carolina Supreme Court
PartiesTommy H. KEMMERLIN, Respondent, v. Sam BLOOM and Theta Bloom, d/b/a the Sportsman Restaurant, Appellants.

Fulmer, Barnes, Berry & Austin, Columbia, for appellants.

Owens T. Cobb, Jr., Donald V. Richardson, III, of Whaley, McCutchen, Blanton & Richardson, Columbia, for respondent.

LEWIS, Justice.

This is an appeal from an order of the lower court requiring one of the defendants to submit to a pretrial oral examination by plaintiff concerning certain specified matters which are relevant to the proof of plaintiff's cause of action and peculiarly within the knowledge of the defendant. The order was issued under the provisions of Section 26--503, 1962 Code of Laws, the pertinent portion of which is as follows:

'The examination of an adverse party, * * * may be had at any time before trial, at the option of the party claiming it, before a judge of the court, on a previous notice of at least five days to the party to be examined and any other adverse party, unless, for good cause shown, the judge order otherwise.'

The plaintiff, Tommy H. Kemmerlin, brought this action against the defendants, Sam Bloom and Theta Bloom, d/b/a The Sportsman Restaurant, to recover for personal injuries allegedly suffered as a result of a fall on the business premises of the defendants. In general, the complaint alleged that plaintiff's injuries resulted from the negligent and reckless failure of defendants to maintain their business premises in a safe condition and from their failure to inspect and warn of the existence of the hazardous condition in question. The defendants filed an answer in which they admitted, upon information and belief, that plaintiff fell while on their premises but denied any liability therefor. In addition, the answer pled the sole negligence and contributory negligence of plaintiff and that, if any hazardous condition existed on the premises, plaintiff assumed the risk thereof.

After the answer was filed, plaintiff moved before, the Resident Judge of the Fifth Circuit for an order requiring the defendants to submit to an oral pretrial examination as to matters material to plaintiff's cause of action. Under the allegations of the complaint and an affidavit filed in support of plaintiff's motion, it appears that plaintiff fell when he slipped on some 'greasy, oily and slippery substances' while making a delivery to the premises of defendants on June...

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1 cases
  • Pendergrass v. Martin, 21324
    • United States
    • South Carolina Supreme Court
    • November 12, 1980
    ...of the South Carolina Code of Laws (1976). See: Wallace v. Interamerican Trust Company, 246 S.C. 563, 144 S.E.2d 813; Kemmerlin v. Bloom, 251 S.C. 49, 159 S.E.2d 910. The appeal is accordingly LITTLEJOHN, NESS, GREGORY and HARWELL, JJ., concur. ...

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