Simon v. Strock

• Decision Date: 19 August 1946
• Docket Number: 15867.
• Citation: 39 S.E.2d 209,209 S.C. 134
• Parties: SIMON et al. v. STROCK.
• Court: South Carolina Supreme Court

39 S.E.2d 209

209 S.C. 134

SIMON et al. v. STROCK.

No. 15867.

Supreme Court of South Carolina

August 19, 1946

F. J. Canty, of New York City, Wolfe & Fort, of Gaffney, and Julian S. Wolfe and T. B. Bryant, Jr., both of Orangeburg, for appellant.

Felder & Rosen, of Orangeburg, for respondent.

OXNER Justice.

Charlie Simon, while employed by the Ballenger Paving Company as a day laborer on a construction job at the United States Army Air Base near Greenville, South Carolina, was fatally injured on August 27, 1943. His employer carried workmen's compensation insurance. The carrier duly paid an award made by the Industrial Commission to the dependents of the deceased. This action was thereafter instituted under the provisions of Sections 411 and 412 of the Code of 1942 familiarly known as Lord Campbell's Act, by the administratrix of his estate to recover damages for alleged wrongful death, and was brought for the benefit of the carrier to the extent of the amount paid by it and for the benefit of the widow and children of the deceased to the extent of any sum recovered in excess of the amount of said award. It is alleged in the complaint that the defendant, Raymond Strock, was a sub-contractor on said job and while so engaged, one of his servants negligently and wantonly backed a heavily loaded dump truck 'upon and over the body of Charlie Simon, killing him instantly.'

After the service of the summons and complaint, defendant filed a petition in which he alleged 'that it was not his truck which brought about the injuries and resulting death of the decedent, but that it was caused by a truck either of Ballenger Paving Company or of E. W. Gibson, of Columbia, S C., whose truck was working along with the trucks owned and operated by this defendant,' and asked that Ballenger Paving Company and E. W. Gibson be made parties defendant 'in order to properly adjudicate this matter and to save a multiplicity of suits.' On an ex parte application defendant obtained an order from the Resident Judge of the First Circuit granting the prayer of the petition and directing that copies of the summons, complaint and said order be served on Gibson and Ballenger Paving Company. The defendant also filed an answer in which, among other defenses, he denied 'that either he or any persons acting under, by or through him, or any of his equipment in any way injured the plaintiff's intestate,' and alleged, on information and belief, that the injuries sustained by plaintiff's intestate 'were caused and occasioned by the truck and driver of one E. W. Gibson, of Columbia, S. C., who was operating on the same job and at the same time and under the same conditions as was this defendant; and that this defendant retained no control over the payment for operation by the drivers of said trucks, or over their movements, and that such employees and this defendant were employees of the said Ballenger Paving Company.' Copies of the answer and order were duly served on plaintiff, who has appealed from said order.

The exceptions raise three questions: (1) Was plaintiff entitled to notice and to be heard on the question of making Gibson and Ballenger Paving Company parties to the action? (2) Did the Court err in bringing in these additional parties? (3) Does the payment of the award of the Industrial Commission relieve Ballenger Paving Company of any further liability and bar any further action against it?

We need not determine in this case whether it was necessary to give notice to Gibson and Ballenger Paving Company of the motion to bring them in as parties defendant. They are not parties to this appeal. The question before us is whether notice should have been given to the plaintiff, a party of record at the time defendant sought to bring in these additional parties. The plaintiff was vitally interested in this question. Her substantial rights were affected and she should have been given notice of the application to bring in other parties. 47 C.J. page 138, Section 253; Turner v. Washington Realty Co., 126 S.C. 378, 120 S.E. 371. The failure to give such notice constitutes a sufficient ground for reversal of the order appealed from. However, as the question of the right of the defendant to bring in these parties has been fully argued on the merits by counsel for both sides, we shall, in order to expedite the final determination of this litigation, proceed to determine whether the facts set forth in the petition and answer of defendant were sufficient to justify the lower Court in making Gibson and Ballenger Paving Company parties defendant.

If the defendant and the parties sought to be brought in were joint tort-feasors, the decisions of this Court are clear to the effect that defendant would have no right to bring in as an additional defendant a joint tort-feasor who was not made a party by the plaintiff. Little v. Robert G. Lassiter &amp Co., 156 S.C. 286, 153 S.E. 128; Deas v. Rock Hill Printing & Finishing Co. et al., 171 S.C. 58, 171 S.E. 20. It is well...