Rourk v. Selvey
Decision Date | 12 December 1968 |
Docket Number | No. 18850,18850 |
Citation | 252 S.C. 25,164 S.E.2d 909 |
Court | South Carolina Supreme Court |
Parties | Charles E. ROURK, a Minor by His Guardian ad Litem, J. F. Rourk, Appellant, v. Kathryn SELVEY and John H. Keller, Respondents. |
Hans F. Paul, George E. Campsen, Jr., Charleston, for appellant.
Samuel J. Corbin, of Barnwell, Whaley, Stevenson & Patterson, Joseph R. Young, of Young, Clement & Rivers, Charleston, for respondents.
The plaintiff sustained personal injuries in a collision between automobiles operated, respectively, by the defendants Kathryn Selvey and John H. Keller. He sued both drivers, alleging that his injuries were caused by the joint and concurrent negligence and recklessness of both in the operation of their respective automobiles.
At the request of the defendant Keller, and over the plaintiff's timely objection, the trial judge instructed the jury that they might apportion the damages between the defendants according to the degree of their culpability. The jury returned a verdict for $45,000.00 actual damages against Selvey and $5,000.00 actual damages against Keller. On this appeal by plaintiff, the primary issue is whether the court erred in granting the foregoing instruction.
The facts are not stated, but it is stipulated 'that there was sufficient testimony to create a jury question as to the actionable negligence and recklessness on the part of both Defendants combining and concurring as a proximate or contributing proximate cause of Plaintiff's injuries.' This stipulation clearly implies the typical case of a collision between automobiles contributed to by the negligence of both drivers, which causes personal injury to a third person. In such a case, the negligence of each driver is a proximate cause of inherently indivisible injuries. Both wrongdoers are jointly and severally liable for the entire harm, and plaintiff has the election of suing one or both. Upon recovery of a judgment against both, plaintiff may, at his election, collect the full amount from one. However, he is entitled to only one recovery, and the collection of a judgment against one wrongdoer extinguishes any claim against the other. Prosser on Torts, Sec. 42 (3d ed. 1964); 39 Am.Jur., Parties, Sec. 40, at page 910; Smith v. Singleton, 2 McMul. (27 S.C.L.) 184 (1842); Pendleton v. Columbia Ry., Gas & Elec. Co., 133 S.C. 326, 131 S.E. 265; Fleming v. Arkansas Fuel Oil Co., 231 S.C. 42, 97 S.E.2d 76; Crowe v. Domestic Loans, Inc., 242 S.C. 310, 130 S.E.2d 845.
We quote from the Pendleton case, supra:
* * *' 133 S.C. at 331, 131 S.E. at 267.
As permitted by the instruction complained of, the jury, while assessing plaintiff's damages at $50,000.00, limited his recovery against one wrongdoer to ten per cent of this sum. Unless he prevails on this appeal, plaintiff will be saddled with this limitation on his right of recovery against Keller even though the damages assessed against the other wrongdoer prove to be uncollectible in whole or in part. Such a result would be unjust to plaintiff and manifestly inconsistent with his entitlement, on reason and authority, to pursue either tort feasor for the full amount of his damages. It should not be tolerated unless some compelling reason therefor exists.
The law elsewhere clearly forbids apportionment in this situation. However, for many years the bench and bar of this state have assumed that apportionment of damages among joint tort feasors, according to the jury's view of the degree of their culpability, is allowable under our law. We have granted plaintiff permission to criticize the precedents upon which this assumption rests. We must decide whether they are to be given controlling application here.
The late, distinguished jurist, Lanneau D. Lide, referred to the doctrine of apportionment of damages between joint tort feasors in South Carolina jurisprudence as 'really unique,' and criticized it as 'a rule which searcely seems logical in view of the general principle that the injured party may sue one or more of the joint tort feasors for his entire damages; and moreover, there is no contribution between joint tort feasors.' 1 S.C.L.Q. 209, 214 (1949). He cited as authority for the rule one of the earliest reported cases in this state, White v. M'Neily, 1 Bay (1 S.C.L.) 11 (1784), which was tried shortly after the end of the Revolutionary War. This was an action in trespass against three defendants who, in company of a group of Tories, entered plaintiff's plantation and plundered it of certain livestock and furnishings. The jury awarded a verdict for 400 pounds against one defendant, 200 pounds against another and 100 pounds against a third. There was no appeal. We quote what is obviously a comment of the reporter:
This case was tried at Georgetown in April, 1784, and Volume 1 of Bay's Law Reports was published in 1809. We quote a note appended to the report of the case, in which the criterion stated for apportionment is at material variance from that stated in the above quotation:
1 1 Bay at 12.
Almost back to back with the report of this decision is that of Whitaker v. English, 1 Bay (1 S.C.L.) 15 (1784), which involved a similar trespass by a band of soldiers, including the sole defendant, an American who has serving with the British militia. The court held the defendant liable to the full extent of the damage. We quote from the report:
'(a) See the case of White v. M'Neily and others, ante, page 11.'
It seems likely that the interpolation as to apportionment in the above quotation resulted from the reporter's preoccupation with this subject rather than that it was a comment of the court to the jury. At any rate, the statement that a jury may apportion is Obiter dictum and is opposed to the sound instruction on which the issue of damages was submitted by the trial judge.
The apportionment doctrine was first considered by an appellate court in Bevin v. Linguard, 1 Brev. (3 S.C.L.) 503 (1805). The action was in trespass on facts similar to those involved in the White and Whitaker cases, supra. The jury returned 'a verdict for $500.00, to be paid, so much by one defendant, so much by another.' The defendants moved for a new trial upon the ground that 'the jury could not award several damages, as the defense was joint.' The motion was heard and refused by the Constitutional Court, at Charleston, in May, 1805, apparently without a written opinion. We quote from the report:
* * *'1 Brev. at 504.
We observe that the motion might just as well have been denied upon the ground that the moving parties had no standing to complain of the verdict, which held each of them to liability for only a part of the entire damages which plaintiff was entitled to recover from either or all of them.
In Smith v. Singleton, 2 Mc.Mul. (27 S.C.L.) 184 (1842), the court refused to...
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