Weatherford v. Radcliffe

• Citation: 63 F. Supp. 107
• Decision Date: 06 November 1945
• Docket Number: Civ. No. 1321.
• Court: U.S. District Court — District of South Carolina
• Parties: WEATHERFORD v. RADCLIFFE et al.

63 F. Supp. 107

WEATHERFORD v. RADCLIFFE et al.

Civ. No. 1321.

District Court, E. D. South Carolina, Florence Division.

November 6, 1945.

McEachin & Townsend, of Florence, S. C., for plaintiff.

Willcox, Hardee, Houck & Wallace, of Florence, S. C., for defendants.

WARING, District Judge.

The plaintiff, Wade S. Weatherford, appointed by the Probate Court of Florence County as administrator of the estate of C. R. Rawlinson, has brought this action against Robert S. Radcliffe (a nonresident) and a Ford Automobile, alleging $25,000 damages for the wrongful death of the intestate by reason of negligence. The Ford automobile is joined as a party defendant and has been attached under authority of Section 8792 of the Code of Laws of South Carolina 1942, the pertinent portions of which are as follows: "Lien on motor vehicle for damage done by it. — When a motor vehicle is operated in violation of the provisions of law, or negligently and carelessly, and when any person receives personal injury thereby, * * * the damages done to such person * * * shall be and constitute a lien next in priority to the lien for state and county taxes upon such motor vehicle, recoverable in any court of competent jurisdiction, and the person sustaining such damages shall have a right to attach said motor vehicle in the manner provided by law for attachments in this State."

Under the authority of the Federal Removal Statutes, Title 28 U.S.C.A. § 71 and § 72, the defendant, Radcliffe, filed a petition and bond and caused the case to be removed to this court, alleging that there is a separable controversy; the claim against the petitioner being for more than $3,000 and he a nonresident, whereas the claim against the automobile is limited to the value of the automobile which is only $500. The automobile is not joined as a petitioner in the removal proceedings although after the case reached this court the same attorneys who filed the petition filed a joint answer on behalf of the personal defendant and the automobile defendant, denying liability.

The plaintiff has now moved to remand the case to the Court of Common Pleas for Florence County from which it was removed.

We are here met with several issues to be determined. It must first be noted that the defendant, Radcliffe, is a resident of Pennsylvania and a nonresident of South Carolina. The automobile is owned by him and was licensed under the laws of the State of Pennsylvania, and in the petition it is alleged that the automobile is of a value of not more than $500. There is no traverse of any of these facts so they must be considered as determined. The petitioner, Radcliffe, contends that there are separable controversies, one between the plaintiff and himself wherein damages in the sum of $25,000 are claimed, and which is an action in personam, and which could and should be tried apart from the action in rem against the automobile attached under the South Carolina Code Section above referred to. His position is that this action being one in personam against a nonresident for more than $3,000, it is removable and should be tried in the federal court, whereas the other being an action in rem against an inanimate object whose value is not more than $500, should remain and be tried in the state court. It should also be kept in mind that the petition is filed on behalf of the personal defendant only and not on behalf of the automobile, the petitioner clearly taking the position that the action against the automobile should remain in the state court.

The South Carolina Motor Vehicle Act above cited has been construed in a number of cases by the State Supreme Court. In the case of Hall v. Locke, 118 S.C. 267, 110 S.E. 385, it was held that the automobile was subject to the lien and might be held responsible for damages although the owner was not liable, the owner not being present at the time of the accident. The court in that case points out that while the remedy prescribed in the statute is one in rem, nevertheless, it was not the intention to supercede the right of a personal action and says (118 S.C. at page 272, 110 S.E. at page 386): "The injured person may proceed against the offending car alone, and it may be sold under order of the court to satisfy the damages ascertained by the jury to have been sustained by the plaintiff. But the injured person also has the right to make the owner of the car, or other person causing the damage, a party defendant, and recover a personal judgment against such person if he was operating the car illegally or negligently upon the public highway, whereby another was injured. After sale of the car by order of the court, the proceeds, after payment of the costs, shall be credited on the personal judgment, and execution issued on the personal judgment to satisfy any balance that might remain. A personal judgment cannot be recovered against the wrongdoer, unless he is made a party defendant to the action." (Emphasis added.)

From the foregoing it is clear that a joint action may be maintained, the one in personam and the other in rem, although it would not be necessary to bring the action jointly.

In the case of Williams v. Garlington et al., 131 S.C. 289, 127 S.E. 20, it was held that in an action brought jointly against individual defendants and an automobile attached under the statute, where the plaintiff withdrew his demand for judgment and abandoned his claim against the individual, the case could proceed as an in rem action and the case tried in the county in which the car was attached.

In Tolbert v. Buick Car, 142 S.C. 362, 140 S.E. 693, following the decision in Williams v. Garlington, supra, it was decided that a case may be instituted in rem against the car without making the owner, operator or other person a party.

In Mahon v. Burkett, 160 S.C. 48, 158 S.E. 141, an action was instituted in Spartanburg County, South Carolina, against the defendant Burkett and a motor truck, and attachment was had under the statute. The owner being a resident of Sumter County moved to transfer the case from Spartanburg to Sumter. The court, speaking through Mr. Justice Carter, held that the personal defendant had a right to avail himself of the statute of South Carolina, Sec. 378, Code of Civil Procedure 1922, now Sec. 422 of the Code of Laws of S.C. 1942, which provides that a cause shall be tried in the county in which a defendant resides. Therefore, the defendant had a right to have the trial as to him removed from Spartanburg County to Sumter County, his residence, but the truck having been attached in Spartanburg County the trial as to it remained there.

The latest South Carolina case which has been called to my attention is Ackerman v. One Mack Truck and Trailer, 191 S.C. 74, 3 S.E.2d 684. In that case suit was brought against two personal defendants and a truck. The plaintiff's automobile collided with the truck in Dorchester County. One of the defendants was a resident of Barnwell County and the other a resident of Jasper County. On a petition by one of these defendants the case against the two persons was transferred to Barnwell County, but the court retained the action in rem against the truck in Dorchester County and the trial was had in the last-named county resulting in a verdict. Upon appeal the action of the trial judge was sustained under the authority of the cases hereinbefore cited, thus reaffirming the law of South Carolina that a personal defendant is entitled to have the case against him removed to the county of his residence, but that the plaintiff may proceed in rem against the seized car at the place where it was attached. It, therefore, seems that the law of South Carolina is settled that the actual trial of the in rem and the in personam actions may be had in different places. While the courts frequently speak of jurisdiction in the different counties, I think a better title would be venue. Undoubtedly in the Ackerman case the court in Dorchester County would have had jurisdiction to try the cause against all the parties if they had come in and answered and it would then have been too late to raise the question of venue. They did seasonably raise the question of venue and the court in accordance with prior decisions changed the place of trial as a matter of right. Venue of course may be waived. In considering the foregoing cases this distinction should always be kept in mind.

It appears to me that in the case at bar the allegations of the complaint distinctly allege a joint tort. A suit could have been brought against the automobile alone in an in rem action. A suit could also have been brought against the owner and operator without joining the automobile since personal service was obtained. Or the suit could have been brought jointly, as was done, alleging fault of the owner and operator and also of the automobile as allowed under the statute. While it may be said that both parties were not necessary both were certainly proper parties. A plaintiff is not required to join all suable parties, but has the option of selecting such one or more who may have joined in the tort. The complaint alleges that both defendants, the owner and the automobile, were at fault, and I can not find that this is a separable action. Of course it may be said that separate actions could have been brought, but that is often true of cases where two or more defendants are joined. One of the most frequent instances of the joinder of defendants is where a railroad is sued and the locomotive engineer joined. It is not necessary that he be joined. And as a matter of fact, the railroad could...