Scott v. Meek, 17053

• Decision Date: 10 August 1955
• Docket Number: No. 17053,17053
• Citation: 88 S.E.2d 768,228 S.C. 29
• Parties: J. H. SCOTT, Appellant, v. C. P. MEEK, Respondent.
• Court: South Carolina Supreme Court

Page 768

88 S.E.2d 768

228 S.C. 29

J. H. SCOTT, Appellant, v. C. P. MEEK, Respondent.

No. 17053.

Supreme Court of South Carolina.

Aug. 10, 1955.

Williams & Busbee, Aiken, for appellant.

Henderson, Salley & Cushman, Aiken, for respondent.

LEGGE, Justice.

Answering the complaint in this action for damages arising out of an automobile collision, the defendant, after pleading a general denial and contributory negligence and recklessness, set up a counterclaim for personal injuries and property damage alleged to have been sustained by him as the result of the said collision. Plaintiff moved to strike the counterclaim as sham and frivolous, basing his motion upon the pleadings and an affidavit of Lowry H. Dorris, an adjuster for Hartford Accident & Indemnity Company, insurer of plaintiff against liability for death, personal injury or property damage resulting to another from the operation of his automobile. Mr. Dorris' affidavit, after reciting his employment as aforesaid and the report of the accident in question by the insured, proceeds: 'I made a routine investigation of said accident, and pursuant to the terms of the contract of insurance, which gives the insurer the right to settle and compromise claims, I negotiated with Dr. C. P. Meek, and under date of December 8, 1953, reached a settlement agreement with him, and thereupon made full and complete settlement on behalf of the insured, J. H. Scott, for all claims for personal injuries, property damage, and otherwise arising out of said accident, at and for the fum of $1,750. I delivered the company's check to Dr. Meek for said sum of $1,750 on that date, whereupon Dr. Meek then and there executed in writing full and complete release'. Continuing, the affidavit avers that a copy of the release is attached as part and parcel of it, and that the original is in the hands of plaintiff's counsel for exhibition to the court upon the hearing of the motion.

The release reads as follows:

'For the sole consideration of one thousand seven hundred fifty ($1,750.00) dollars lawful money of the United States, to me in hand paid by J. H. Scott, the receipt whereof is hereby acknowledge, I, Dr. C. P. Meek, residing in Aiken, South Carolina, being of lawful age, do hereby release, acquit, and forever discharge the said J. H. Scott from any and all actions, causes of action, claims and demands, costs, loss of services, expenses, and compensation on account of or in any way growing out of any and all known and unknown personal injuries and property damage resulting or to result from accident that occurred on or about the 16th day of October, 1953, by reason of automobile accident on U. S. Highway No. 1 about 6 miles south of Aiken, S. C., at the Warrenville-Graniteville crossing, and do hereby for myself, my heirs, successors and assigns covenant with the said J. H. Scott to indemnify and save harmless from all claims and demands, costs, loss of services, expenses, and compensation on account of or in any way growing out of said accident or its result both to person and property. It is expressly understood and agreed that the acceptance of the said amount of one thousand seven hundred and fifty ($1,750.00) dollars is in full accord and satisfaction of a disputed claim, and that the payment of the said sum of one thousand seven hundred and fifty ($1,750.00) dollars is not an admission of liability.

'In...