Lewis v. Congress of Racial Equality and/or C. O. R. E., Inc.
| Decision Date | 08 January 1981 |
| Docket Number | No. 21366,21366 |
| Citation | 275 S.C. 556,274 S.E.2d 287 |
| Court | South Carolina Supreme Court |
| Parties | W. T. LEWIS, Respondent, v. The CONGRESS OF RACIAL EQUALITY AND/OR C. O. R. E., INC. and C. O. R. E. Special Purpose Fund, Appellants. |
Franklin W. Allen, Spartanburg, for appellants.
Mitchell & Joe, Greenville, for respondent.
This appeal is from an order refusing to vacate a default judgment.
Appellant, a New York corporation allegedly invaded respondent's privacy by using respondent's name in soliciting funds for a charitable organization. On April 13, 1978, respondent obtained default judgment for $150,000.00 actual damages and $100,000.00 punitive damages.
A motion to vacate was made on August 7, 1978 pursuant to S.C. Code § 15-27-130 (1976). The motion was denied.
Appellant first asserts service under S.C. Code § 36-2-806 (1976) was improper, arguing that service under this section is limited by S.C. Code § 36-2-809 (1976). We disagree.
Under S.C. Code § 36-2-806 (1976) service may be effected outside of the State:
The record reveals that prior to obtaining service by registered mail, respondent attempted to serve appellant through the New York City Sheriff's Department but was unsuccessful for varying reasons. Service was then effected by letter receipted for by Anthony Young, an admitted employee of appellant. Additionally the trial judge received a telephone call from David Rosenhole, attorney for appellant, immediately prior to the hearing requesting a postponement. Moreover, at the motion to vacate the trial judge gave appellant ten (10) days to file additional papers.
There is no contention appellant did not have minimum, substantial business contacts in this State.
In the past decade substantial change has been effected in both the approach of the legislature and the courts by which the right to institute a suit by a resident against a foreign corporation or nonresident has been considerably liberalized. International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957); Deering Milliken Research Corp. v. Textured Fibres, Inc., 310 F.Supp. 491 (D.S.C.1970); Triplett v. R. M. Wade & Co., 261 S.C. 419, 200 S.E.2d 375 (1973); Stephenson v. Jordan Volkswagon, Inc., 428 F.Supp. 195 (W.D.N.C.1977); Nucor Corp. v. Fanevil Construction, Inc., 264 S.C. 458, 215 S.E.2d 634 (1975).
It is within the power of the legislature to authorize constructive service of process upon a foreign corporation or nonresident who is doing business within this State. 62 Am.Jur.2d § 79, p. 861. 1 In no case has this Court held that the statutes did not authorize an exercise of jurisdiction which, in the opinion of the Court, was constitutionally permissible.
Under the factual situation here presented, we believe the respondent fully complied with the statutes. We hold a foreign corporation doing business in this state may be served by the additional service method provided by Code § 36-2-806(1)(c). Procedural fairness is insured by the requirement in that section that the purported service by mail be "satisfactory to the Court." The trial court held the service was proper. We agree.
Appellant next contends that the default judgment should be vacated under Code § 15-27-130, which provides a remedy for relief from judgments. Under this section, in order to obtain relief the moving party must demonstrate (1) that the judgment or order was taken against him through his mistake, inadvertence, surprise, or excusable neglect, and (2) that he has a meritorious defense.
This case is one more in a series of cases which have given the court great concern. They involve large awards in default claims involving unliquidated damages. See Rochester v. Holiday Magic, Inc., 253 S.C. 147, 169 S.E.2d 387 (1969); Howard v. Holiday Inns, Inc., 271 S.C. 238, 246 S.E.2d 880 (1978); Petty v. Weyerhaeuser Co., 272 S.C. 282, 251 S.E.2d 735 (1979), and Southland Mobile Homes v. Associates Financial Services, S.C., 265 S.E.2d 258 (1980). Also see Renney v. Dobbs House, Inc., S.C., 274 S.E.2d 290 filed herewith.
As indicated hereinabove, this action is one for alleged invasion of privacy by the appellants in using respondent's name in connection with the solicitation of funds for a charitable organization; such is alleged to have occurred after respondent left the employment of the appellants. The lower court assessed damages at a total of $250,000.00.
The problems we encounter growing out of default judgments normally involve the right to defend; in many cases the court, at least peripherally, is concerned with the proper assessment of damages. There are few problems where only liquidated damages are involved. The complaint will usually alert a defendant as to the amount of the verdict sought. In liquidated-damages cases, the amount is usually a sum certain, or at least the amount is capable of ascertainment by computation. Liquidated damages more often grow out of actions ex contractu rather than actions ex delicto.
In the case of unliquidated damages a defendant, though in default as to liability, has a right to expect that the judgment of the court, or the verdict of the jury, will be in keeping not only with the allegations of the complaint and the prayer for relief, but also the proof which has been submitted. Even though the evidence used as a basis for procuring the $250,000.00 judgment here is not before us, this award is patently so grossly out-of-proportion to the delicts alleged in the complaint that this court, as a matter of common law and independent of § 15-27-130, should not allow the same to stand. We raise the issue ex mero motu.
It is generally recognized that courts should closely scrutinize default judgments to prevent harsh results and drastic action. It is the policy of the law to favor the trial of cases on the merits.
In 46 Am.Jur.2d Judgments § 807, we find the following:
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