Shuler v. Swift & Co.

• Decision Date: 03 March 1937
• Docket Number: 14445.
• Citation: 190 S.E. 447,183 S.C. 140
• Parties: SHULER v. SWIFT & CO. (two cases).
• Court: South Carolina Supreme Court

190 S.E. 447

183 S.C. 140

SHULER v. SWIFT & CO. (two cases).

No. 14445.

Supreme Court of South Carolina

March 3, 1937

Appeal from Common Pleas Circuit Court of Orangeburg County; M. M Mann, Judge.

Separate actions by Dessie L. Shuler and by Jesse A. Shuler against Swift & Co. From an order consolidating the actions, the plaintiffs appeal.

Reversed and remanded for new trial separately.

A. J Hydrick and W. B. Martin, both of Orangeburg, for appellants.

W. C Wolfe, of Orangeburg, and Robinson & Robinson, of Columbia for respondent.

FISHBURNE Justice.

Two separate actions were instituted by Jesse A. Shuler, and by his wife, Dessie L. Shuler, against the defendant, Swift & Co., for damages, growing out of the alleged actions and conduct of an employee of the defendant. The cases were separately docketed for trial by jury in the court of common pleas for Orangeburg county.

It appears from the record that Jesse A. Shuler operates a retail grocery store at Elloree, in Orangeburg county, and that Dessie L. Shuler, his wife, assists him in the conduct of this mercantile business. On September 18, 1935, the defendant, pursuant to an order previously given, delivered to Mrs. Shuler, her husband being absent from the store, the butter and sausage specified in the order, and left with her a copy of the invoice covering the items. Upon such delivery being made, Mrs. Shuler gave to the defendant's employee a check for $3.06, payable to the defendant, which covered the amount of the invoice, and he thereupon left the store. Within a few minutes he returned, and told Mrs. Shuler that he had discovered that the invoice was marked "Cash," and that he must receive payment in cash. There is a conflict in the testimony as to what then occurred, Mrs. Shuler testifying that the butter and the sausage had been placed by her in the refrigerator; that it was taken therefrom by force by the employee, and that in so doing he put his hand upon her person and pushed her away from the refrigerator; and the employee testifying that the articles were still on the counter, and that he took them with the consent of Mrs. Shuler. Both of these actions resulted from, and are based upon, the alleged conduct of the defendant's agent in repossessing the butter and the sausage.

When the case of Dessie L. Shuler was reached for trial, at the June, 1936, term of the court of common pleas for Orangeburg county, counsel for the defendant made a motion that it be consolidated with the case of Jesse A. Shuler, which immediately followed it upon the calendar, and that they be tried together. Counsel for the two plaintiffs objected. After hearing arguments the court granted the motion, and ordered the two cases consolidated. They were thereupon tried together, and resulted in a directed verdict by the court in favor of the defendant, although the trial judge thereafter stated that he would permit the plaintiff Dessie L. Shuler to take a voluntary nonsuit if her counsel chose to do so.

The appeal here is from the order of consolidation. Appellants contend that it was error for the court to consolidate the two cases, in that each of the plaintiffs was deprived of a separate trial of their separate and distinct tort actions at law, a right guaranteed under the law. There are other exceptions, but a decision upon the issue stated will in our opinion determine the appeal.

It is claimed by the respondent that there was no formal consolidation of the two cases, but that they were merely ordered tried together. In its brief the respondent concedes that in actions at law there can be no technical consolidation unless the parties are identical. But it is argued that frequently cases with different plaintiffs, against a common defendant, are tried together without a formal consolidation. While it is true that this method of trial has often been followed in our practice, yet it has been pursued only with the consent of the parties. In such cases no enforced consolidation has been allowed.

The court in recent years has frequently had occasion to pass upon the issue presented by this appeal, with reference to the propriety under our law, of consolidating actions at law; and by a long unbroken line of decisions, beginning with Hellams v. Switzer, 24 S.C. 39, 45, has held that there can be no consolidation of independent actions at law, where the parties are not the same, though a different rule prevails in cases involving equitable jurisdiction. Farmers' & Merchants' National Bank of Lake City v. Foster et al., 132 S.C. 410, 129 S.E. 629; Byrd v. State Highway Department, 159 S.C. 181, 156 S.E. 454; Sons et al. v. Federal Land Bank of Columbia et al., 170 S.C. 548, 171 S.E. 35, 36; Griffin v. Southern R. Co., 65 S.C. 122, 43 S.E. 445; Black v. Simpson, 94 S.C. 312, 77 S.E. 1023, 46 L.R.A. (N.S.) 137; Bennett v. Spartanburg Railway, Gas & Electric Co., 97 S.C. 27, 81 S.E. 189; Ryder v. Jefferson Hotel, 121 S.C. 72, 113 S.E. 474, 25 A.L.R. 739; Fant v. Brissey, 143 S.C. 264, 141 S.E. 450; Bishop v. Bishop, 164 S.C. 493, 162 S.E. 756.

The right to consolidate for trial separate actions by five persons suing the same defendant for varying amounts of damages suffered as the result of injuries received in the same automobile accident was denied in Bishop v. Bishop, supra, where, reversing an order for consolidation and remanding the cases for new trials, the court held that in actions at law there can be no consolidation of independent actions where the parties are not the same. The court pointed out that, under a statute (section 487, 1932 Code) providing that causes of action which may be united in the same complaint must all belong to one class, except in actions for the foreclosure of mortgages, and must affect all the parties to the action, the plaintiffs could not have joined their five causes of action in the same complaint, as their causes of action were separate.

In the well-considered case of Sons et al. v. Federal Land Bank of Columbia, supra, former Chief Justice Blease, speaking for the court, went into this question very fully. It is there said:

"The appellant concedes that, under the common-law practice, a consolidation of actions at law was not permitted, but it contends that this rule has been changed by our Code, and it cites section 487, and cases that have been decided thereunder, the most recent of which are Barrett v. Broad River

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