Sparrow v. Nerzig

• Decision Date: 12 October 1955
• Docket Number: No. 17074,17074
• Citation: 89 S.E.2d 718,228 S.C. 277,56 A.L.R.2d 328
• Parties: , 56 A.L.R.2d 328 Charles L. SPARROW, Respondent, v. Milton NERZIG and Stuart Nerzig, Appellants.
• Court: South Carolina Supreme Court

Page 718

89 S.E.2d 718

228 S.C. 277, 56 A.L.R.2d 328

Charles L. SPARROW, Respondent, v. Milton NERZIG and Stuart Nerzig, Appellants.

No. 17074.

Supreme Court of South Carolina.

Oct. 12, 1955.

Royall & Wright, Florence, Hawkins & Bethea, Dillon, for appellants.

Willcox, Hardee, Houck & Palmer, Florence, Herbert Britt, Dillon, for respondent.

LEGGE, Justice.

On July 21, 1953, a collision occurred in Dillon County, South Carolina, between a tractor-trailer truck owned by Charles L. Sparrow and being driven at the time by Donnie B. Ward, and a Buick automobile owned by Milton Nerzig and occupied at the time by him, his wife, Selma Nerzig, and his fifteen-year-old son, Stuart Nerzig. Sparrow and Ward are residents of the state of North Carolina; the Nerzigs are residents of the state of New York.

On or about August 4, 1953, Sparrow instituted the present action in the Court of Common Pleas for Dillon County against Milton Nerzig seeking to recover $3,000 for the damage to Sparrow's truck resulting from the aforesaid collision. The complaint alleged that Milton Nerzig was the owner and driver of the Buick automobile at the time of the collision. On November 28, 1953, within extension of time granted, Milton Nerzig answered, setting up defenses to the complaint and asserting a counterclaim against Sparrow in the amount of $300,000 for his own alleged personal injuries and property damage resulting from the collision. The answer and counterclaim specifically admitted and alleged that Milton Nerzig was driving the Buick at the time.

On March 10, 1954, Stuart Nerzig, by his guardian ad litem, William H. Blackwell, brought suit in the District Court of the United States for the Eastern District of South Carolina against Sparrow and Ward, seeking to recover damages in the amount of $300,000 for personal injuries sustained by him as the result of the collision. The complaint alleged that Milton Nerzig was driving the Buick at the time of the collision. On June 1, 1954, within time duly extended, Sparrow and Ward answered, setting up defenses of specific denials and contributory negligence, including the allegation that at the time of the collision the Buick was being driven by 'the plaintiff', i. e., Stuart Nerzig. We note, in passing, that the action in the federal court was improperly entitled 'William H. Blackwell, as Guardian ad Litem for Stuart Nerzig, an infant, Plaintiff, v. Charles L. Sparrow and Donnie B. Ward, Defendants'. Cf. Morgan v. Potter, 157 U.S. 195, 15 S.Ct. 590, 39 L.Ed. 670; Mitchell v. Cleveland, 76 S.C. 432, 57 S.E. 33. But no issue in that regard is before us, and it appears from the answer of the defendants in the federal court action that they considered the plaintiff there to be the infant and not the guardian ad litem. No counterclaim was asserted in that action by either Sparrow or Ward.

On June 19, 1954, in the instant case, Sparrow served upon counsel for the defendant, Milton Nerzig, notice that he would move before the Honorable J. Woodrow Lewis, Judge of the Fourth Judicial Circuit, for an order permitting him to amend his complaint: (a) by alleging that at the time of the collision the Buick automobile, owned by the defendant Milton Nerzig, was being driven by his infant son, Stuart Nerzig, as his 'agent, servant and employee'; (b) by joining Stuart Nerzig as a party defendant; (c) by making certain changes in and additions to the specifications of negligence; and (d) by praying judgment against both Milton Nerzig and Stuart Nerzig. From Judge Lewis' order of July 27, 1954, granting the motion, this appeal is taken.

Chief Justice Taft, in Ponzi v. Fessenden, 258 U.S. 254, 42 S.Ct. 309, 310, 66 L.Ed. 607, 22 A.L.R. 879, said:

'We live in the jurisdiction of two sovereignties, each having its own system of courts to declare and enforce its laws in common territory. It would be impossible for such courts to fulfill their respective functions without embarrassing conflict unless rules were adopted by them to avoid it. The people for whose benefit these two systems are maintained are deeply interested that each system shall be effective and unhindered in its vindication of its laws. The situation requires, therefore, not only definite rules fixing the powers of the courts in cases of jurisdiction over the same persons and things in actual litigation, but also a spirit of reciprocal comity and mutual assistance to promote due and orderly procedure'.

In actions in rem, the rule is settled that the tribunal, state or federal, which first takes the subject matter into its control may hold it to the exclusion of the other until its duty has been fully performed and its jurisdiction exhausted. Covell v. Heyman, 111 U.S. 176, 4 S.Ct. 355, 28 L.Ed. 390. So, too, with regard to actions quasi in rem, such as those involving receivership, marshaling of assets, administration of trusts, and the like. Marchant v. Wannamaker, 176 S.C. 369, 180 S.E. 350; Porter v. Sabin, 149 U.S. 473, 13 S.Ct. 1008, 37 L.Ed. 815; United States v. Bank of New York & Trust Co., 296 U.S. 463, 56 S.Ct. 343, 80 L.Ed. 331; Princess Lida of Thurn and Taxis v. Thompson, 305 U.S. 456, 59 S.Ct. 275, 83 L.Ed. 285. And with regard to proceedings involving the custody of a person, Ableman v. Booth, 21 How. 506, 16 L.Ed. 169; Ponzi v. Fessenden, supra.

Even where the action is in rem, the court of prior jurisdiction is not bound to regard the rule as inflexible, but may decline to interfere if, in the exercise of its discretion, it concludes that the character and adequacy of the latter proceedings so require. Commonwealth of Pennsylvania v. Williams, 294 U.S. 176, 55 S.Ct. 380, 79 L.Ed. 841, 96 A.L.R. 1166.

In actions in personam, as between courts of concurrent jurisdiction within the federal system, the one which first acquires jurisdiction should maintain and exercise it to the exclusion of a court in which subsequent action is taken. Bair v. Bryant, D.C.Mun.App., 1953, 96 A.2d 508; Brooks Transportation Co. v. McCutcheon, 1946, 80 U.S.App.D.C. 406, 154 F.2d 841.

As between state and federal courts, however, the pendency in one jurisdiction of an action in personam will not preclude a later action for the same cause in the other. Kline v. Burke Construction Co., 260 U.S. 226, 43 S.Ct. 79, 67 L.Ed. 226, 24 A.L.R. 1077.

Rule 13(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A. as originally promulgated effective September 16, 1938, read as follows:

'A pleading shall state as a counterclaim any claim, not the subject of a pending action, which at the time of filing the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction'.

As amended December 27, 1946, effective March 19, 1948, it now reads:

'A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction, except that such a claim need not be so stated if at the time the action was commenced the claim was the subject of another pending action'.

As pointed out in the Notes of the Advisory Committee on Amendments to Rules, following the text of Rule 13 in 28 U.S.C.A. page 515, the amendment resulted from the criticism of the language of the original rule in Prudential Insurance Co. of America v. Saxe, 1943, 77 U.S.App.D.C. 144, 134 F.2d 16, and was intended to insure against the 'undesirable possibility presented under the original rule whereby a party having a claim which would be the subject of a compulsory counterclaim could avoid stating it as such by bringing an independent action in another court after the commencement of the federal action but before serving his pleading in the federal action'.

In support of Judge Lewis' ruling in the case at bar, respondent cites Red Top Trucking Corporation v. Seaboard Freight Lines, D.C.S.D.N.Y.1940, 35 F.Supp. 740, 742. There, as here, the controversy arose out of a motor vehicle collision. Red Top Trucking Corporation sued in the District Court for property damage; and shortly thereafter Seaboard Freight Lines brought suit against Red Top Trucking Corporation in the Municipal Court of the City of New York for damages arising out of the same collision. The motion of the plaintiff in the federal court for an order enjoining prosecution of the action in the state court pendente lite was refused, the court holding that Rule 13(a)...