Williams v. Johnson, 18237

• Decision Date: 06 July 1964
• Docket Number: No. 18237,18237
• Citation: 137 S.E.2d 410,244 S.C. 406
• Court: South Carolina Supreme Court
• Parties: Jeanette P. WILLIAMS, Respondent, v. John S. JOHNSON, Appellant.

Page 410

137 S.E.2d 410

244 S.C. 406

Jeanette P. WILLIAMS, Respondent, v. John S. JOHNSON, Appellant.

No. 18237.

Supreme Court of South Carolina.

July 6, 1964.

Tompkins, McMaster & Thomas, Columbia, for appellant.

Law, Kirkland & Aaron, Columbia, for respondent.

LEWIS, Justice.

The plaintiff brought this action to recover damages sustained by her in an automobile collision which, the complaint alleged, occurred when the defendant negligently, recklessly, and wilfully drove his automobile into the vehicle driven by the plaintiff. The answer of the defendant, in addition to a general denial, interposed, as a second defense, the contributory negligence and wilfulness of the plaintiff and, as a third defense, an accord and satisfaction between the parties, as a bar to recovery by the plaintiff. Upon the service of the answer, the plaintiff moved to strike therefrom the third defense. Thereafter, the defendant moved to be allowed to amend his answer by alleging that the plaintiff had been previously involved in numerous automobile accidents and was an habitually reckless driver. The above motions were heard together and an order was subsequently issued by the lower court (1) striking the third defense and (2) refusing to allow the defendant to amend his answer in the foregoing particulars. This appeal is by the defendant from the above mentioned order.

The defenant contends, first, that the lower court erred in striking the third defense from his answer. This defense was as follows:

'5. Further answering said complaint, and as a further defense thereto, the defendant alleges that on the 11th day of February, 1963, the plaintiff herein, for the valid consideration of Six Hundred Fifty ($650.00) Dollars, executed and delivered to the defendant or for his benefit, a full release wherein she did release and forever discharge the defendant and all others privy to him from all claims and demands for injuries and damages sustained on or about May 24, 1962, Columbia, South Carolina, and that on account of the execution of the said release and the forwarding and delivering to the plaintiff of the payment in connection therewith, there has been a complete accord and satisfaction of the plaintiff's claim, and plaintiff is barred and estopped from maintaining this action or recovering any sums whatsoever on account of the injuries and damages alleged in the Complaint.'

The motion to strike the foregoing defense was made upon the ground that it was cirrelevant and immaterial.' The motion to strike the entire defense upon the foregoing ground was in the nature of a demurrer and should have been refused if the matter to be stricken constituted a defense to the cause of action alleged in the complaint. DuBose v. Bultman, 215 S.C. 468, 56 S.E.2d 95.

The defense in question alleged, in substance, that an accord had been reached between the parties, consisting of an agreement between them to ettle the claims set forth in the complaint, and a satisfaction, consisting of the payment of the consideration agreed upon. These allegations set forth the essential elements of an accord and satisfaction, Mixon v. Rossiter, 223 S.C. 47, 74 S.E.2d 46, and, if proved would constitute a complete defense to plaintiff's cause of action. 1 Am.Jur.2d, Accord and Satisfaction, Section 52.

Since the allegations stricken constituted a defense to the cause of action set forth in the complaint, they were relevant and material, and the lower court was in error in striking them from the answer. This portion of the order under appeal must, therefore, be reversed.

The remaining question concerns the refusal of the lower court to allow the defendant to amend his answer by adding an additional paragraph to read as follows:

'That the plaintiff has for a long period of time immediately prior to the...