South Carolina State Highway Dept. v. Isthmian S. S. Co.

• Decision Date: 06 June 1947
• Docket Number: 15955.
• Parties: SOUTH CAROLINA STATE HIGHWAY DEPARTMENT v. ISTHMIAN S. S. CO.
• Court: South Carolina Supreme Court

43 S.E.2d 132

210 S.C. 408

SOUTH CAROLINA STATE HIGHWAY DEPARTMENT v. ISTHMIAN S. S. CO.

No. 15955.

Supreme Court of South Carolina

June 6, 1947

John M. Daniel, Atty. Gen., and Huger Sinkler and Augustine T. Smythe, both of Charleston, for appellant.

Moore & Mouzon, of Charleston, for respondent.

STUKES Justice.

It is recited in the statement of facts contained in appellant's brief that this action was commenced by service of summons on the 5th day of March 1946, and thereafter upon the Secretary of State of South Carolina in accordance with Section 7765 of the Code. On the 25th day of March, 1946, and thereafter by similar notice in regard to the service upon the Secretary of State defendant's attorneys served notice of a motion to quash and set aside these services on the grounds that defendant was not doing business in the State of South Carolina, and that the persons served were not its agents.

Thereafter and before the Court had made any ruling upon these objections to the jurisdiction, plaintiff filed its complaint in the office of the Clerk of Court on November 8, 1946. On November 28, 1946, and still before the Court had made any ruling on the objections to the jurisdiction, defendant's counsel served upon plaintiff's counsel an answer to the merits including an affirmative defense and also served notice of a motion to dismiss the case upon the merits. The answer and the notice of motion contained preambulatory statements seeking to reserve defendant's rights under the motion to set aside the service.

Meanwhile the Court having made an order of reference to the Master to take testimony and report on the questions raised by the motion to quash and set aside the service, and the Master having filed his report and before the Court had made any ruling on the defendant's objection to the jurisdiction for want of proper service, at the conclusion of the arguments on the exceptions to the Master's report, and after the Court had announced that it would take the matter under advisement, the defendant presented its motion to dismiss. Plaintiff's counsel took the position that the motion was not well brought and that the matters set out in it should have been raised by demurrer or answer. The Court sustained this position and dismissed the motion. Thereupon defendant's counsel asked leave of the Court to file an amended answer, setting up these matters if so minded, and the Court gave such leave.

Thereafter on January 6, 1947, plaintiff's counsel served notice of a motion for an order holding that the defendant had made a general appearance, and submitted itself to the jurisdiction of the Court by serving the answer, by serving the notice of motion to dismiss, by presenting the motion to dismiss, and by asking for and securing leave to file an amended answer. This motion came on to be heard before Judge William H. Grimball at chambers, who made an order dated January 31, 1947, dismissing the motion and holding that the defendant had not made a general appearance. It is from this last stated order of Judge Grimball that this appeal was taken.

The issues made by the pleadings are as follows: The complaint alleges that the John P. Grace Memorial Bridge of plaintiff, over the Cooper river at Charleston, was damaged on the 24th day of February, 1946, by being struck by the ship Nicaragua Victory, which had dragged her anchor and which was on that occasion under the direction, operation and control of defendant, its agents and servants, and that the damage to the bridge was caused by the carelessness, recklessness, wantonness, and negligence of defendant, its agents and servants, in the particulars specified in the complaint. The answer denies the allegation in regard to the ship being under the control of defendant, denies the allegations of carelessness, recklessness, wantonness and negligence, and sets up an affirmative defense, alleging that the damage to the bridge was due to a violent storm, constituting an Act of God.

In its brief on appeal respondent expressly accepted the foregoing factual statement with the following addition: The questions raised by the motion to quash the service of the summons having been referred, on motion of appellant, to the Master to take testimony and report, references were in progress when the complaint was filed and notice thereof given to defendant. The motion to dismiss the action, notice of which was served just prior to the answer, was in effect a demurrer, being based on the ground that plaintiff's cause of action was against the United States and not against the defendant. This motion was presented only upon the insistence of plaintiff's counsel and the order of the Court, defendant's counsel not wishing to present the motion at that time. When defendant's counsel asked leave to amend the answer, if so minded, so as to set up the ground stated in the notice of motion, the request was made orally, informally, and in the course of discussion, after plaintiff's counsel had taken the position that the ground should have been set up by answer or demurrer, and not by motion.

It will be noted from the foregoing that there is some contention between counsel relating to the circumstances surrounding the motion to dismiss the action on the merits, which respondent likens to a demurrer to the complaint. For that reason the following is quoted from the statement in the agreed transcript of record for appeal:

'The Master having filed his report, finding that the persons served were agents of the defendant and that the defendant was doing business in South Carolina, and before the Court had made any ruling on the defendant's objection to the jurisdiction for want of proper service, at the conclusion of the arguments on exceptions to the Master's report, defendant presented its motion to dismiss. This was at the direction of the Court and upon the insistence of plaintiff's counsel, defendant's counsel having requested that the presentation of the motion be deferred pending decision of a certain cause in the United States Supreme Court. Plaintiff's counsel took the position that the motion was not well brought and that the matters set out in it should have been raised by demurrer or answer. The Court sustained this position and dismissed the motion. Thereupon defendant's counsel asked leave of the Court to file an amended answer setting out these matters, if so minded, and the Court gave such leave.'

On January 18, 1947, the trial Judge passed an order in which he overruled the motion but granted respondent leave to file an amended answer, incorporating therein as an additional defense the matters set forth in the notice of the motion, and he recounted the pertinent proceedings had before him, as follows:

'On November 28th, 1946, counsel for the Defendant served upon counsel for Plaintiff notice that on the 4th day of December, A.D.1946, the Defendant would move before me for an order dismissing this action upon the ground that it is one in tort founded upon the alleged negligent operation of the steamship 'Nicaragua Victory,' a vessel which at the time involved in this action was owned by the United States of America through its War Shipping Administration and whose Master and crew were agents of the United States and not of the Defendant, and that the Defendant is not responsible for the actions of such Master and crew, negligent or otherwise. On the same day, counsel for Defendant served upon Plaintiff's counsel an answer in this cause wherein the Defendant answered to the merits and set up the affirmative defense of Act of God.

'On January 4th, A.D.1947, upon the conclusion of the argument in regard to the exceptions to the Master's report herein, Defendant's counsel presented to the Court the motion above referred to. Plaintiff's counsel took the position that under the authority of Cheraw Motor Sales Co. v. Seymour, 130 S.C. 307, 126 S.E. 39, and the Code of South Carolina, which provides that there are only three pleadings. Complaint, Answer and Demurrer, the motion was not well brought and that the matters set up in it should have been set up in an answer and asked that the motion be dismissed. Upon consideration, I stated that I was in agreement with Plaintiff's counsel and that I would dismiss the motion and did so dismiss it.

'Thereupon Defendant's counsel requested of me leave to file an amended answer, setting up the matters set out in the notice of motion above referred to. Plaintiff's counsel having stated that they had no objection, I thereupon gave the Defendant leave to file an amended answer.

'This order is made for the purpose of confirming what was done on the occasion above referred to.'

Thereafter in his order of January 31, 1947, that now under appeal, he referred again to the proceedings before him concerning respondent's motion to dismiss, as follows:

'On December 20th, 1946, the master filed his report--this being favorable to plaintiff. Exceptions to this report were served on December 30th, 1946, and on January 4th, 1947, these exceptions were thoroughly argued before me, the arguments consuming approximately three hours. At the end of the arguments I stated that I would have to take the matter under advisement for further study and consideration.

'Plaintiff's counsel then stated that they wished to have disposed of defendant's motion to dismiss. Defendant's counsel stated that they did not wish to make this motion at this time. Plaintiff's counsel insisted that this motion should be disposed of at this time. Upon the insistence of plaintiff's counsel and over the insistent objection of defendant's counsel, I directed the latter to proceed with the motion. Plaintiff's counsel then took the position that the motion should be...