McCombs v. Stephens, 18897
| Decision Date | 01 April 1969 |
| Docket Number | No. 18897,18897 |
| Citation | 166 S.E.2d 814,252 S.C. 442 |
| Court | South Carolina Supreme Court |
| Parties | Samuel Guy McCOMBS, Respondent, v. William David STEPHENS, Appellant. |
Odom, Nolen & Foster, Sparanburg, for appellant.
Claude R. Dunbar, Spartanburg, for respondent.
Defendant has appealed from a judgment rendered in favor of plaintiff for damages sustained in a three-car collision. Plaintiff brought this action against defendant after entering into a covenant not to sue the driver of the third vehicle. In the trial of the case, the court permitted the jury to hear testimony concerning the covenant and to credit defendant with the amount received by plaintiff from the other tort feasor. The question to be decided is whether reversible error was committed in the manner in which such credit was allowed to the defendant.
Plaintiff originally brought an action against the defendant Stephens and one Peggy Louise Bridges to recover damages allegedly sustained in a collision involving the automobiles of the three parties. A voluntary nonsuit was taken by plaintiff in that action and the present one instituted only against the defendant Stephens. Defendant alleged in his answer that plaintiff had received the sum of $1200.00 as the consideration for a covenant not to sue Peggy Louise Bridges, the driver of one of the vehicles involved in the collision, and asked that he be credited with such amount on any judgment rendered against him. Upon filing the answer, defendant moved for an order requiring plaintiff to reply to the allegations relative to the covenant, so that the defendant could 'adequately prepare his defense, and know plaintiff's position with reference to this plea and how same can be disposed of at time of trial.' The motion was denied by the trial judge, as was a motion made by defendant on the day before the trial of the case that the issues relative to the alleged covenant be disposed of by the court out of the presence of the jury. Although there was no issue of fact with regard to the execution, validity, or contents of the covenant, all of the facts in reference thereto were required by the court to be proved in the trial of the case in the presence of the jury and the jury was instructed to deduct the consideration stated in the covenant from any amount that might be found for the plaintiff.
While the exceptions challenge the rulings of the trial judge, both with reference to the refusal of the motion to require plaintiff to file a reply and the refusal to withdraw from the jury all issues relative to the covenant not to sue, we need only determine whether the trial judge committed reversible error in the manner in which credit was accorded to the defendant for the amount received by plaintiff under the covenant. The defendant-appellant contends that evidence concerning the covenant should have been excluded from the consideration of the jury and credit given by the...
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Brewer v. Payless Stations, Inc.
...1973); Egurrola v. Szychowski, 95 Ariz. 194, 388 P.2d 242 (1964); Brooks v. Daley, 242 Md. 185, 218 A.2d 184 (1966); McCombs v. Stephens, 252 S.C. 442, 166 S.E.2d 814 (1969). Some courts, in adopting the "court rule", expressly overruled or limited earlier cases which had endorsed the "jury......
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