Nauful v. Milligan, 19387
| Decision Date | 13 March 1972 |
| Docket Number | No. 19387,19387 |
| Citation | 258 S.C. 139,187 S.E.2d 511 |
| Court | South Carolina Supreme Court |
| Parties | Eli S. NAUFUL, Respondent, v. Joseph S. MILLIGAN, Appellant. |
N. H. Hamilton, Summerville, and Frank K. Sloan, Columbia, for appellant.
John Hamilton Smith, of Walker, Walker & Jenkins, Summerville, Ernest J. Nauful, Jr., Columbia, for respondent.
Defendant committed an assault and battery upon plaintiff and this action was brought to recover the resulting damages which, it is now stipulated, include only actual damages. Subsequently, after an answer was filed, plaintiff's motion for summary judgment in his favor was granted on the issue of liability alone, leaving only the question of damages for determination. Defendant has appealed from the order granting partial summary judgment.
We must first determine whether the order granting summary judgment only on the issue of liability is appealable. Plaintiff-respondent takes the position that such an order is interlocutory in character and not appealable until final judgment.
Rule 44, subsections (a) and (b), of the Circuit Court Rules provides that a party may move for summary judgment in his favor upon all or any part of a claim, counterclaim or cross claim; and further states, in subsection (c), that 'a summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.'
While the foregoing rule clearly characterizes, as interlocutory in nature, a summary judgment limited to the issue of liability, it does not determine the right to appeal from such a judgment. This must be determined under the statutes governing appeals to this Court.
The controlling statute is Section 15--123(1) of the 1962 Code of Laws and, under it, an interlocutory or intermediate order is immediately appealable, if it is one 'involving the merits.'
The interlocutory adjudication in this case determines that the defenses interposed by defendant are without merit and that he is liable to the plaintiff on the claim asserted in the complaint, leaving only the amount of the damages at issue. It thus finally decides the merits of every issue in the case, except that of damages. We think that such a determination involves the merits and comes within the class of interlocutory or intermediate orders from which an immediate appeal is allowed under Section 15--123.
We then reach the basic issue of whether the lower court erred in granting plaintiff's motion for summary judgment on the issue of liability. Summary judgment was properly entered if, under the showing made, there was no genuine issue as to any material fact and plaintiff was entitled to judgment on the issue of liability as a matter of law.
The motion for summary judgment was based upon a discovery deposition of defendant, an affidavit of plaintiff, and a certified xerox copy of an indictment containing defendant's plea of guilty to simple assault and battery in connection with the incident alleged in the complaint. Defendant filed a 'return' to the motion, in which he alleged that, under the facts presented by plaintiff, the encounter between the parties amounted to mutual combat and that he was coerced by his wife and friends into the plea of guilty to assault and battery because of the fear that he might receive a more severe sentence if he contested the criminal charge.
The complaint alleged that the defendant, without cause or provocation, wilfully, maliciously, and wrongfully committed an assault and battery upon plaintiff, from which plaintiff sustained actual damages in the amount of $25,000.00. The answer of the defendant interposed a general denial and, for a further defense, alleged that 'if the plaintiff suffered any injury or damage the same was provoked and brought about by his own actions.'
The issues raised by the pleadings, with reference to liability, were (1) whether defendant committed the assault and battery upon plaintiff and, if so, (2) whether such resulted from the wrongful and unprovoked act of the defendant.
There is no substantial difference between the statements of the parties as to the material facts surrounding the incident in question. Plaintiff and defendant were neighbors. Apparently the families had some disagreement about the activities of their dogs. In the course of extended bickering between them, plaintiff on one occasion called defendant's children 'white trash.' This first came to the attention of defendant's wife and plaintiff apologized to her for so referring to the children. Defendant was later informed of the incident by his wife. As a result, defendant became angry and, on the late afternoon of August 25, 1969, called to plaintiff, who was then in his own yard, for the purpose of straightening out the affair concerning plaintiff's reference to defendant's children as 'white trash.'
As a result of defendant's call to plaintiff, they met in the street between their homes. Upon inquiry by defendant as to whether plaintiff had called the children 'white trash,' plaintiff admitted that he had, but informed defendant that he had apologized for doing so, to which defendant replied: 'Well you haven't apologized to me.' The course of events thereafter was thus described by defendant:
With reference to the actual assault and battery and the reason given for striking the plaintiff, defendant testified as follows:
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