Deas v. Rock Hill Printing Finishing Co. , 171 S.C. 58 ( 1933 )

As a statement of this case I adopt, in the main, the agreed statement of counsel appearing in the transcript of record.

The action was commenced by the plaintiff, Levy Deas, against the defendants, Rock Hill Printing Finishing Company and Archie O. Joslin, for injury and damage caused to the plaintiff, his home and lands, by the alleged negligent, willful, and tortious acts and trespasses of the defendants in alleged violation of the Constitution and laws of the State of South Carolina and of the United States, and in thereby taking without compensation and without due process of law the appellant's property and property rights.

On the 24th of September, 1931, the respondent, Rock Hill Printing Finishing Company, filed a petition and bond for removal to the District Court of the United States for the Western District of South Carolina upon the ground that the said company was a foreign corporation, that the complaint presented a separable controversy, and that the joinder of the defendant, Joslin, was fraudulent. Issue as to the fraudulent joinder was raised in the United States District Court by plea of the plaintiff; said traverse having been filed on the 1st day of October, 1931.

On November 7, 1931, notice of motion to remand was served on the attorneys for the plaintiff. Thereafter, on the 11th day of March, 1932, the motion was heard by the Hon. J. Lyles Glenn, who, on August 17, 1932, remanded the case to the Court of Common Pleas for York County.

On October 22, 1932, the respondents, Rock Hill Printing Finishing Company and Archie O. Joslin, moved upon notice before the Court of Common Pleas for York County to make the City of Rock Hill a party defendant, and notified the City of Rock Hill to come in and defend this action. The City of Rock Hill also filed a petition on said motion, in which the city asked also to be made a party defendant.

Upon the hearing of the motion and consideration thereof and of the contract by and between Rock Hill Printing Finishing Company and the City of Rock Hill, Circuit Judge Thomas S. Sease made an order on the 4th day of November, 1932, making the City of Rock Hill a party defendant and giving it 20 days to plead to the complaint herein.

From the said order of the Circuit Judge directing the City of Rock Hill to be made a party defendant, the plaintiff has appealed to this Court.

Appellant presents his allegations of error under eight exceptions, but it is agreed that the sole question involved in the appeal is whether the lower Court erred in making the City of Rock Hill a party defendant, without the consent of the plaintiff.

The allegations of the complaint pertinent to the question presented may be substantively stated as follows:

The plaintiff, a resident and citizen of York County, this State, is the owner, and has been for several years, and in possession and use of, a certain tract of land in Catawba township, said county and State, situate on the waters of Fishing Creek, containing approximately 70.3 acres; that the said creek flows "in, over and through this home and farm of the plaintiff"; that the plaintiff, with his family, resides on this land, and has thereon, in addition to his dwelling house, out buildings used by him in connection therewith, also "a dam, canal and waterpower which he uses in the operation of a grist mill and cotton gin, owned by him and located thereon"; and likewise "has been accustomed (as he had a right to do) to use the waters of the creek for his domestic purposes, and various kinds of fish have usually existed and bred in said stream, used and useful for game and food. Moreover he uses this land, with other lands which he rents hereby, as a farm; and from the use of this home, farm, stream, mill and gin the plaintiff derives the income for support of himself and his family."

Included in the acts of wrong charged against the defendants, Rock Hill Printing Finishing Company and Archie O. Joslin, are the allegations, in effect, that the said Rock Hill Printing Finishing Company is a corporation engaged in operating a manufacturing plant in the said County of York "for the bleaching and printing of cloth," and that the defendant, Archie O. Joslin, is a citizen and resident of the said county, and is now, and has been since the commencement of the operations of the said plant by the said Rock Hill Printing Finishing Company, its general manager in charge and control of its plant and the operation of the same, acting within the scope of his employment and duties; that the said plant is situated a few miles north or northwest of the home and said lands of the plaintiff, and "the waste water, effluent and chemicals from and after use of said plant is drained and empties into the waters of Fishing Creek, above the lands and home of this plaintiff, and mixes, intermingles and flows with the water of this creek, through, over and along the lands and home of the plaintiff." In this connection the plaintiff makes the following additional allegations:

"6. The defendants commenced the operation of the manufacturing plant of the Rock Hill Printing Finishing Company some time in the winter of 1929-30, and as plaintiff is informed and believes, since that time have continuously, in connection therewith and for the purposes of conducting the operations of the manufacturing plant, intentionally, wrongfully, negligently and willfully discharged and emptied into the waters of Fishing Creek, refuse, tailings, and/or waste from dye stuffs, including deleterious and poisonous substances and chemicals in large quantities, without in any wise filtering, treating, distilling or otherwise restoring to a condition of purity or wholesomeness said waste, refuse and/or tailings; and without attempting to remove or prevent the pollution and/or poison therefrom.

"7. That by the wrongful, negligent, and wilful acts of defendants, the waters of Fishing Creek in, along and through the lands of the plaintiff have become and are fouled, poisoned and polluted. The waters give off and cause noxious odors, smells and gases which are carried to and invade the dwelling house and home of the plaintiff, making the occupancy thereof unwholesome, unhealthful, uncomfortable and unpleasant, and in fact unfit for use as a home. The poisons, odors and gases seriously affect, interfere with and impair the necessary and proper use of and work on the farm and in and about the operation of the mill, cotton gin and machinery.

"Further, as plaintiff is informed and believes, the waters, by reason of such pollution, have become and are unfit for domestic use. They are unhealthy and deleterious to animal life, causing the death of chickens, ducks and geese belonging to the plaintiff and the death of fish which were accustomed to inhabit the stream; and seriously injuring domestic animals at work in and about the stream. The waters are unfit for bathing purposes and the use thereof for such purpose is deleterious; and the inhalation of the gases and odors therefrom and the use of the water is harmful and deleterious. All to the damage of the plaintiff in the sum of Twenty-five Thousand ($25,000.00) Dollars.

"8. That by reason of the use and pollution of the waters of the stream by the defendants the home and farm, mill and gin of the plaintiff have been and are most seriously invaded, injured and damaged and depreciated and practically taken and destroyed by the defendants without compensation and in violation of the Constitution and laws of the State of South Carolina and the Constitution of the United States.

"9. That the wrongful, negligent and wilful acts of the defendants hereinabove set forth constitute and are a wanton and continuing invasion of the personal and property rights of the plaintiff.

"Wherefore plaintiff prays judgment against the defendants:

"(1) For Twenty-five Thousand ($25,000.00) Dollars damages and costs.

"(2) For an injunction restraining the defendants from continuing said unlawful and wrongful acts.

"(3) For such other and further relief as the plaintiff may be entitled to in the premises."

In support of his contention that the Circuit Judge erred in making the City of Rock Hill a party defendant to the action, appellant calls attention to a number of South Carolina cases, as well as decisions in other jurisdictions. The case of Little v. Lassiter Co., 156 S.C. 286,153 S.E., 128, cited by appellant, and, it seems, mainly relied upon for supporting his position, is the latest decision of this Court on the question of making a joint tort-feasor a party defendant. In that case the question at issue therein was considered at length and the former decisions of this Court having a bearing thereon reviewed. We wish to state at this time that the Court adheres to the principles declared and announced in that case. But, in our opinion, the conclusion reached in the Little-Lassiter case is not controlling in the case at bar. It is true, as held in that case, the plaintiff has the right to select either one or more of joint tort-feasors to bring his suit against, and, we may add, ordinarily the one sued will not be heard to complain because the others were not made joint defendants with him. But the case at bar does not fall within that rule. It is distinguishable from the Little-Lassiter case. In the first place, attention is called to the fact that in that case the plaintiff instituted the action for the sole purpose of recovery of judgment for a certain sum of money against the defendant, based on alleged wrongful acts alleged to have been commited by the defendant. (See complaint on file in the office of clerk of this Court in case of Little v. Lassiter.) No equity relief was sought; whereas, in the case at bar, the purpose of the action is twofold. The suit is not only for recovery of damages alleged to have been sustained by the plaintiff on account of the wrongful acts alleged to have been committed by the parties he brought action against, but the action is also an action in equity, that is, injunctive relief is sought, and basis is laid therefor not only in the prayer of the complaint but under the allegations set forth in the body of the complaint. In this connection attention is called not alone to the prayer of the complaint but to the body of the complaint as well, above quoted. The prayer of the complaint reads as follows:

"Wherefore plaintiff prays judgment against the defendants:

"(1) For Twenty-five Thousand ($25,000.00) Dollars damages and costs.

"(2) For an injunction restraining the defendants from continuing said unlawful and wrongful acts.

"(3) For such other and further relief as the plaintiff may be entitled to in the premises."

It is clear from this prayer that one purpose of the action was to obtain equitable relief, to get an injunction restraining the defendants from continuing the alleged wrongful and unlawful acts, and the prayer closed with the usual language used in equity suits, to wit: "(3) For such other and further relief as the plaintiff may be entitled to in the premises." This language used in the prayer of the complaint shows clearly that the action was intended as an action in equity as well as an action to obtain a money judgment. But suppose, as appellant seems to contend that the prayer of the complaint should not be regarded as a part of the complaint and should be disregarded altogether, the allegations contained in the body of the complaint show clearly that the action was intended as an action in equity as well as for recovery of a money judgment on the law side of the Court. In addition to the other allegations of the complaint, special attention is called to the closing paragraph, reading as follows: "That the wrongful, negligent and wilful acts of the defendants hereinabove set forth constitute and are a wanton and continuing invasion of the personal and property rights of the plaintiff." (Italics ours.)

It cannot be successfully contended that the suit is not an action in equity as well as a suit on the law side of the Court for a money judgment.

Another distinguishing feature of the case at bar is that not only did one of the defendants sued, Rock Hill Printing Finishing Company, take steps before the Court to have the City of Rock Hill made a party defendant, for the reasons presented to the Circuit Judge, but the City of Rock Hill, itself, petitioned to be allowed to come in and defend, because of being vitally interested in the matters involved in the suit. It also appears that the interest of the public is involved in the suit. It further appears that the plaintiff, before instituting the suit, had notice, actual or constructive, of the interest of the City of Rock Hill, and, necessarily, knew of the interest of the public.

Since, as shown above, the plaintiff in the case at bar is seeking injunctive relief, as well as damages for the alleged tort alleged to have been committed by the parties sued, the rule applicable in cases in equity must be applied, and not the rule applicable in actions at law, when the plaintiff may sue, at his pleasure, jointly or severally two or more joint tort-feasors, and cannot be made to bring in additional parties. In 47 C.J., 81, we find the following statement bearing on the subject: "Legal or Equitable Relief Distinguished. A distinction is made according to whether the relief demanded, in an action for an injury arising out of the separate acts of different defendants between whom there has been no common design or concert of action, is of a legal or equitable nature, it being held that, although a joinder of defendants cannot be had, in such a case in an action at law for damages, such a joinder may be made in an action asking equitable relief, as where plaintiff seeks an injunction against the continuance of the tortious acts."

In considering this question, it must be kept in mind that the City of Rock Hill, on account of the contract between the parties, is vitally interested in the outcome of the case, and, because of this relation and the resultant effect upon the said city and its citizens, we do not see how the Court could afford to grant the relief sought by the plaintiff without first permitting the city to be heard in the cause. In this connection attention is called to the notice served upon the city by the printing company calling upon it to defend the action; also to the contract involved, as well as to the petition of the city asking to be allowed to come in and defend the action. Special attention is called to the following statements set forth in the said notice served by the defendants upon the City of Rock Hill:

"4. The defendants herein notify you, and each of you, to come in and defend said action for and on behalf of the City of Rock Hill, the said notice and demand being based upon representations, guarantees, covenants and warranties made by the said City of Rock Hill, through its duly authorized and lawful representatives, made and given to the defendants, before, at and upon the establishment of its printing plant in the City of Rock Hill, and the using of said sewerage system of said city, which said sewerage line or drain eventually empties into Fishing Creek, the said covenants, warranties, guarantees and representations on the part of the said city being given for valuable consideration and as an inducement to said plant to locate in the City of Rock Hill, and to use its sewers and drains as aforesaid, being as follows:

"(a) The City of Rock Hill agreed and contracted to save the defendants harmless from claims and demands for damages, etc., caused by said additional water system as used by said defendants and in the operation thereof.

"(b) The said city agreed to receive into its sewerage system and to dispose of the sewage from the lands, buildings any effluent of the said defendants, of whatsoever nature, including water for chemicals wholly or partly used in connection with the company's printing, finishing and dyeing activities, in the due course of the natural conduct of the company's business, without obligation on the part of the company to treat said sewage before disposing of the same into the said City's sewerage system, and without liability on the part of the company for said sewage after the same shall have been passed into the City's sewer; and the City agrees to pay the cost and expenses of the defense of any action or proceeding against the company arising out of said sewage or disposal thereof, and to hold the company harmless therefrom, unless the same shall be due to the neglect of the company in the care and operation of its plant.

"(c) That said City of Rock Hill, through its lawful agents and representatives, and in pursuance of said contract, authorized, directed and instructed the said defendants to empty its effluent into a certain sewer or drain alleged to belong to said City, and said defendant has so emptied its effluent as authorized and instructed by the officials and representatives of said City, and without negligence on its part, but only, wholly and completely in accordance with the terms and conditions of said contract as between said City and Rock Hill Printing and Finishing Company.

"(d) That these defendants relied wholly and completely, as they had a right to do, upon the contract, agreement and instructions from the said City of Rock Hill to the defendant, Rock Hill Printing and Finishing Company, believing that said City had the right to so contract, and that it was the owner in fee of the right and easement to and in all sewers and drains used by these defendants, and the defendant, Rock Hill Printing and Finishing Company entered into said contract in good faith, relying upon such warranties and contracts with said City, expended large sums of money and is now engaged in the operation of its said plant wholly and only in accord with the terms of the said contract, and the warranties, covenants and agreements therein recited.

"5. That certain taxpayers of the City of Rock Hill, F.D. Green and others, questioning the validity of such contract between the City of Rock Hill and Rock Hill Printing and Finishing Company, brought their action to enjoin certain construction works by the City of Rock Hill, and questioned the validity of the contract herein referred to, and which is made a part of this complaint, marked Exhibit `B,' and asked that the City of Rock Hill be enjoined from doing said work or entering into said contract, which said action and proceedings for injunctive relief were heard in the original jurisdiction of the Supreme Court of South Carolina, and said Court, by its orders and decrees, held and determined that said City had full authority and power to enter into said contract, and the said contract, in all of its terms and particulars in the matters herein set out was upheld and declared to be a binding and valid contract on the part of the City of Rock Hill with the defendant, Rock Hill Printing and Finishing Company.

"6. You are, therefore, notified to appear and defend said action, and you are further notified that the defendants herein intend to, and will hold said City liable for any judgment against the defendants, or any damages sustained by them or for any costs or attorneys' fees incurred in defending said action.

"7. You are further notified that unless in the meantime, of your own motion, you petition the Court that you be made a party defendant, for the purpose of defending said action, that these defendants will, on the 4th day of November, 1932, move before the Honorable T.S. Sease, the presiding Judge of the Sixth Circuit, for an order directing that you may be made Parties Defendant, that you may defend the said action."

The contract referred to in the above notice is printed in the transcript of record, but the same will not be quoted or restated herein for the reason that we consider it unnecessary, but deem it sufficient to state that upon examining this contract we find that the same supports the statements contained in the foregoing notice. This contract was duly considered by this Court in the case of Green et al. v. Cityof Rock Hill et al., reported in 149 S.C. 234,147 S.E., 346, and the obligations assumed under the said contract by the City were held to be within the scope and authority of the city. For the purpose of a clearer understanding of the issues involved in the case at bar reference is made to the opinion in that case, written by Mr. Justice Stabler as the organ of the Court. The above-mentioned notice was directed to the mayor of the City of Rock Hill and the several members of the council, constituting the City Council of the City of Rock Hill. The petition of the City of Rock Hill to which we refer, asking to be made a party to the cause, reads as follows:

"The petition of the City of Rock Hill respectfully shows:

"1. That said City has been served with notice of a motion returnable herein on the 4th day of November, 1932, that unless in the meantime the City of Rock Hill petitions the Court to be made a party defendant in the above entitled action, in order that the said City may defend the said action, the defendants will move the Court for an order directing that the said City be made a party defendant.

"2. That the City of Rock Hill admits that it is a party to the contract between the City of Rock Hill and the Rock Hill Printing and Finishing Company, attached to the aforesaid notice as `Exhibit A,' and says that the City is vitally interested in the aforesaid action by reason of the aforesaid contract, and because the entire outfall from the Rock Hill Printing and Finishing Company is received into the sewerage system of the City of Rock Hill, and thence passed into the streams upon which the lands of the plaintiff are situated.

"For the reasons aforesaid, and upon the entire record in the aforesaid cause, the City petitions the Court to be allowed to come into the action, and be made a party thereto, and be allowed to set up its defense in the aforesaid action, and protect its rights thereunder."

It is thus seen that the City of Rock Hill is vitally interested in the outcome of the suit and there is no ground for questioning the bona fide purpose of the petition. Upon the City of Rock Hill, as a municipality under the laws of the State of South Carolina, is devolved the duty, not only of preventing an unjust claim being assessed against the city as such, but to safeguard the best interests of its inhabitants. That the contract above referred to was entered into by the city for the purpose of promoting the progress of the city and the benefit of the public generally must be assumed, which contract was approved by the Court, and the plaintiff must have known of the existence of the contract at the time of the commencement of the action. Not only was there held a well-advertised city election regarding the contract in question, but the validity of the same was tested in the Court. It can hardly be imagined that the plaintiff did not know what was going on, and, further, had full opportunity of informing himself regarding these matters from the records. He knew that the City of Rock Hill, as a municipality, and for the protection of its inhabitants, was vitally interested in the questions involved in the suit. These facts were before the Circuit Judge when his Honor issued the order permitting the city to come in and defend the action. His Honor knew from the record before him that the outcome of the suit would vitally affect the city and the residents therein. If, under the contract referred to, the city has to pay whatever damage may be awarded to the plaintiff against the defendants in the case, the same will eventually have to be paid by the citizens of the city, and, further, if the plaintiff is granted the equity relief sought by the suit, the printing plant in question would evidently have to be closed, and such an act would necessarily affect the city and its inhabitants as a whole. A reading of the contract referred to convinces us that the large amount of money invested by the defendant, something over two million dollars, it appears, would not have been invested except for the fact of the execution of the contract in question and the approval of the same by the Court as to the matters stated by this Court in the case of Green et al. v. City of Rock Hill et al., supra, and under our view of the case the City of Rock Hill should be permitted to be heard on the matters involved in the suit in conformity with its petition. Under any view of the case, the nature of the case is such as to give to the Circuit Judge some discretion in the matter in passing upon the petition referred to, and we fail to see wherein his Honor abused his discretion in granting the petition and permitting the City of Rock Hill to come in and defend the action. As stated at the outset, one of the essential differences involved in the Little-Lassiter case, supra, and the case at bar is that no equity question was involved in the first-mentioned case, whereas, in the case at bar, equity questions are involved. But there is also another distinguishable feature to which we wish to call attention. In the Little-Lassiter case, no contractual relation existed as exists in the case at bar, regarding judgments awarded against the defendant. In this connection we call special attention to the cases of Miller Barnhart v. Gulf Atlantic Insurance Co., 132 S.C. 78,129 S.E., 131, and Peurifoy v. Mauldin, 142 S.C. 7,140 S.E., 253, in which cases a contractual relationship existed, and the Court held in those cases that it was proper to allow the third party to come in and defend.

Our attention has been called to the case of Brasingtonv. Williams et al., 143 S.C. 223, 141 S.E., 375, 377. That case in one respect is like the case at bar, in that the action was twofold in its purpose. The plaintiff sought damages and an injunction on account of the obstruction of a road. In the opinion of the Court in that case, written by Mr. Justice Cothran, as the organ of the Court, this statement appears:

"A temporary injunction was issued at the time of the commencement of the action, and was subsequently continued until the hearing of the case upon the merits.

"The law side of the case was tried before his Honor, Judge Bonham, and a jury, in March, 1924, the result of which was a verdict in favor of the plaintiff for $1.00 damages; and, upon the rendition of that verdict, a decree for a permanent injunction was entered on the equity side."

It is seen from the language used by the Court in that case that the Court clearly recognized the twofold nature of the action, seeking damages on the law side and injunctive relief on the equity side. In that respect the Brasingtoncase is similar to the case at bar, but the case is not in point, for the reason that the questions at issue in the case at bar were not raised in the Brasington case. No question was presented in that case regarding the rights of a third party to come in on petition and defend its rights involved in the case. Therefore the Brasington case is not in point. Of course, neither the Brasington case nor the case at bar could be considered a case in equity solely, but they are twofold in their purpose. The purpose of the plaintiff in each case was to obtain a money judgment for the damages sustained and an injunction against the continuance of the wrongful acts alleged. Under the prescribed procedure in this state, the question of damages in the case at bar should, in our opinion, be tried on the law side of the Court, by a Judge and a jury, but the injunctive relief sought must be given, if given at all, on the equity side. As stated, the case at bar must be regarded as twofold in its purpose, legal and equitable, and, as we view the same, under all the facts and circumstances appearing in the case, the petition of the City of Rock Hill to come in and defend should be granted. In any event, the injunctive relief sought by the plaintiff should not be granted without giving to the City of Rock Hill an opportunity to be heard, for the reason that such injunction would vitally affect the interest of the city and its citizens, and we think the proper thing to do is to allow the city to come in at this time and defend its interest throughout the entire trial of the case.

For the foregoing reasons I think the order appealed from should be affirmed. While we have not discussed herein every position pressed by appellant, we have duly considered the same in connection with the entire record, and are forced to the conclusion that the exceptions should be overruled.

NOTE: Let the order of the Circuit Judge be incorporated in the report of the case.