Lucas v. Garrett

• Decision Date: 19 April 1946
• Docket Number: 15831.
• Parties: LUCAS et al. v. GARRETT et al.
• Court: South Carolina Supreme Court

38 S.E.2d 18

208 S.C. 292

LUCAS et al. v. GARRETT et al.

No. 15831.

Supreme Court of South Carolina

April 19, 1946

Mann & Arnold, of Greenville, for appellant.

Stephen Nettles, of Greenville, for respondents.

G DUNCAN BELLINGER, Acting Associate Justice.

This is an appeal from the order of Special Judge Thomas M. Lyles striking certain allegations from the answer of the appellant, David H. Garrett, upon the ground that such allegations were irrelevant and redundant.

The agreed statement of facts contains a clear statement of the facts necessary to the decision of the question raised by the appeal, which we set out herein below:

'This action was instituted on or about January 29, 1945, by the respondents by the service of a summons and complaint.

'The respondents in their complaint seek to recover the sum of $2,373.26 for loss or damage by fire to certain cotton owned by them while being transported on a truck owned and operated by David H. Garrett, the appellant. The American Fire and Casualty Company had issued to David H. Garrett a Trucker's policy of insurance covering loss by fire which policy had attached to it an endorsement required by the South Carolina Public Service Commission in conformity with Section 8511 of the 1942 S. C. Code.

'Separate answers were filed for the defendants through the same attorneys. The defendant Garrett in his answer sets up a qualified general denial and three affirmative defenses. The first affirmative defense is that the plaintiffs are not the real parties in interest. The second defense is that plaintiffs carried fire insurance on their cotton with the St. Paul Fire & Marine Insurance Company, which had paid the loss in full, and the St. Paul thereby waived its right to claim payment from the defendant Garrett. The third defense is that since there were two separate insurance companies insuring the same risk, one company being the plaintiffs' insurer and the other being the defendant Garrett's insurer, the two companies should share the loss on a pro rata basis.

'Plaintiffs thereafter moved to strike the three affirmative defenses from the answer of the defendant Garrett on the ground that they were irrelevant and redundant.

'The motion came on to be heard before Hon. Thomas M. Lyles, Special Presiding Judge, at September Term, 1945. By agreement the motion was heard with the policies of both the St. Paul and the American Fire, and the subrogation receipt executed by plaintiffs to the St. Paul, before the Court. Plaintiffs admit that they have been paid in full for their loss by the St. Paul. By his order, dated October 5, 1945, Special Judge Lyles sustained the motion.'

Before entering into a discussion of the merits, we feel it proper to point out that the Trial Judge in disposing of the motion considered the matters as if before him upon the merits rather than upon a motion to strike. In so doing he was in error. His actions in this regard are analogous to the action of the Trial Judge in Mason v. Williams, 194 S.C. 290, 9 S.E.2d 537, 541.

The Mason Case was twice argued before this Court. The final decision reversed the Circuit Court for ordering certain portions of the answer stricken, upon the ground that such allegations were immaterial and redundant.

The following language from the opinion in the Mason case, supra, is most apposite to the instant appeal: 'The only question before the Circuit Court was whether the portions of the answers complained of should be stricken as not constituting a defense to the action, and therefore irrelevant and immaterial. It would therefore appear that there is merit in the preliminary statement of appellants' argument wherein it is suggested 'that the Circuit Judge lost sight of the limits of the questions before him on the motions and first decided questions of law and fact which were not at issue on the motions as a preliminary foundation for his final conclusion to strike the defenses.''

In the instant case the Acting Circuit Judge considered the complaint as if amended by the subrogation agreement after which he considered the portions of the answer sought to be stricken in the light of the complaint as so 'amended'. There was no motion to amend the complaint by alleging the subrogation agreement. It was therefore, error for the Acting Circuit Judge to treat the motion to strike in that manner.

The question before this Court is, Did the first defense, that is that the respondents are the real parties in interest, sought to be stricken constitute a defense to the cause of action alleged in the complaint, and not to the cause of action in the complaint as the same was 'amended' by the Trial Judge.

An allegation is irrelevant when it has no substantial relation to the controversy. Alexander v. Du...