Thompson v. Queen City Coach Co., Inc.

• Decision Date: 14 March 1933
• Docket Number: 13600.
• Parties: THOMPSON v. QUEEN CITY COACH CO., Inc., et al.
• Court: South Carolina Supreme Court

168 S.E. 693

169 S.C. 231

THOMPSON v. QUEEN CITY COACH CO., Inc., et al.

No. 13600.

Supreme Court of South Carolina

March 14, 1933

Appeal from Common Pleas Circuit Court of Greenville County; Martin F. Ansel, Judge.

Action by Ann Thompson against the Queen City Coach Company, Inc. and others. From an order overruling a motion to vacate an order dismissing the complaint as to all defendants except named defendant, plaintiff appeals.

Affirmed.

R. N Ward, of Greenville, for appellant.

Dakyns B. Stover and J. L. Love, both of Greenville, for respondents.

STABLER Justice.

The statement of facts is here given substantially as contained in the record for appeal. The action is one to recover actual damages for delay and damage to a trunk and for loss of a suitcase checked by plaintiff, a citizen of South Carolina from Memphis, Tenn., to Greenville, S. C., on June 8, 1931-- over lines of Dixie Greyhound Lines, Inc., from Memphis to Birmingham, Ala.; over lines of Service Stages, Inc., from Birmingham to Atlanta, Ga.; and over lines of Queen City Coach Company, Inc., from Atlanta to Greenville.

Dixie Greyhound Lines, Inc., and Service Stages, Inc., do not operate in South Carolina, and no property of either of them has been attached in this state. American Fidelity & Casualty Company is surety under an indemnity policy for Dixie Greyhound Lines, Inc., and the United States Fidelity & Guaranty Company is surety under an indemnity policy for Service Stages, Inc., in accordance with requirements of the Alabama Motor Carrier Act of August 23, 1927, in effect on June 8, 1931 (Acts 1927, p. 309).

The action was commenced on July 28, 1931, against Queen City Coach Company, Inc., and Dixie Greyhound Lines, Inc., only. Order of publication was obtained, and the summons and complaint were served on an agent of Dixie Greyhound Lines, Inc., in Memphis, Tenn., on October 14. It defaulted.

The complaint was amended so as to make American Fidelity & Casualty Company a party defendant; and Hon. Sam B. King, insurance commissioner for South Carolina, accepted service on behalf of that company on December 18. Order of publication was secured and service on Dixie Greyhound Lines, Inc., was attempted through service on an agent in Memphis, Tenn., on December 21. Both of these defendants, through Attorney J. L. Love, requested and obtained an extension of time to answer.

The complaint was again amended, Service Stages, Inc., and the United States Fidelity & Guaranty Company being made parties defendant. The second amended complaint was served on Dixie Greyhound Lines, Inc., and Service Stages, Inc., by service, on January 8, 1932, after an order of publication was obtained, on agents of those defendants beyond the jurisdiction of the court. Attorney J. L. Love accepted service on behalf of American Fidelity & Casualty Company on January 7, 1932, and service on the United States Fidelity & Guaranty Company was obtained by serving its agent Wm. Goldsmith, in Greenville county, S. C., on the same day. On January 15, the United States Fidelity & Guaranty Company, by its agent Geo. L. Warthen, Columbia, S. C., requested and obtained an extension of time to answer; and on January 18, Dakyns B. Stover, Attorney for the United States Fidelity & Guaranty Company and Service Stages, Inc., requested and obtained an extension of time to answer on behalf of these defendants.

On January 27, 1932, without taking advantage of the extension of time granted, Service Stages, Inc., and the United States Fidelity & Guaranty Company demurred to the jurisdiction of the court and gave notice of a motion, specifying that they would appear specially for the purpose of the motion only, for an order dismissing the complaint as to them for lack of jurisdiction of their persons and the subject of the action. On the same day Dixie Greyhound Lines, Inc., and American Fidelity & Casualty Company gave similar notice of a similar motion.

On February 10, the matter was heard by Hon. Martin F. Ansel, county judge, on the complaint, summons, notices, demurrers, affidavits, including one of Hon. J. O. Hamby, chief of the motor transportation department of the Public Service Commission of the state of Alabama, and the Alabama Motor Carrier Act. At the hearing, plaintiff's attorney admitted that the service on Dixie Greyhound Lines, Inc., and Service Stages, Inc., was perhaps defective, but took the position that these defendants had voluntarily submitted to the jurisdiction of the court (1) by appearing generally; (2) by offering affidavits and other evidence, (a) on the merits, (b) controversial in nature, and (c) concerning nonjurisdictional issues; and (3) by demurring. On February 18, the court passed an order dismissing the complaint as to all defendants except Queen City Coach Company, Inc. On February 27, plaintiff gave defendants notice of a motion to vacate this order. The motion was heard on March 10 on the record of the previous hearing and an affidavit of plaintiff's attorney; the following additional grounds to support the contention of voluntary appearances being argued: (a) Defendants' seeking and obtaining extension of time to answer; and (b) acceptance of service of the summons and complaint by American Fidelity & Casualty Company. The motion was overruled, and the case is here on appeal.

Before considering the nature of the papers which served as a basis for the contest before the court, we will refer briefly to appellant's contention that the defendants or some of them waived service of process and voluntarily submitted to the jurisdiction of the court by seeking and obtaining an extension of time to answer. It may be remarked, in this connection and generally, that waiver is a question of intention, though, of course, the conduct of the defendants may in some circumstances constitute waiver as a matter of law, upon the theory that such conduct operates as an estoppel to deny the intention to waive, or, stated differently, that the intention will be conclusively presumed from such conduct. See Williams v. Hatcher, 95 S.C. 49, 78 S.E. 615. The defendants here by their notices expressly asserted that they were "appearing specially for the purpose of this motion, and no other"; and Klatte v. McKeand, 95 S.C. 219, 78 S.E. 712, is authority for the holding that the request made by their counsel or agent of plaintiff's counsel for an extension of time to answer does not constitute waiver of service as a matter of law. Fitzgerald v. J. I. Case Threshing Machine Company, 94 S.C. 54, 77 S.E. 739, cited by appellants, may be easily differentiated, as in that case the defendant, after default, made a motion before the court for leave to answer, which was held to be a submission to the jurisdiction of the court.

We may say that the papers or "notices," however denominated, served upon the plaintiff by the defendants as a basis for the hearing before Judge Ansel, are inaptly drawn and tend to confusion as to the questions presented to the court. Dixie Greyhound Lines, Inc., and its surety, American Fidelity & Casualty Company, each gave a separate notice of a motion "for an order dismissing the complaint against the defendant *** upon the ground that this Court has no jurisdiction over the defendant *** or the subject of this action." Each of the separate "notices" served by Service Stages, Inc., and its surety, United States Fidelity & Guaranty Company, recites that the defendant "demurs to the jurisdiction of the Court as to said defendant and will move *** for an order dismissing the complaint against the said defendant *** upon the ground that this Court has no jurisdiction over and of the said defendant *** or the subject of this action."

Attached to the "notice" served by Dixie Greyhound Lines Inc., was an affidavit of its attorney to the effect, inter alia, that the plaintiff attempted to secure jurisdiction over this defendant by service of a copy of the summons and complaint upon one Smith at Memphis, Tenn.; the "notice" served by Service Stages, Inc., was accompanied by a similar affidavit of its counsel to the effect, inter alia, that service upon this...