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WINCHESTER v. UNITED INS. CO.

May 30, 1957

HENRY B. WINCHESTER, RESPONDENT,
v.
UNITED INSURANCE COMPANY, APPELLANT.



The opinion of the court was delivered by: Moss, Justice.

May 30, 1957.

This is a consolidated appeal from an order in two cases, identically captioned, each originally seeking to recover actual and punitive damages. The appeal is from an order of the Judge of the Civil Court of Union County, South Carolina, overruling the motion of appellant to consolidate the two cases and to strike certain allegations from the two complaints.

The appellant made a timely motion to consolidate the two cases, together with a motion to strike certain portions of each of the complaints.

The motions to consolidate and to strike were heard by County Judge Sam E. Barron, and on August 9, 1956, he filed an order overruling all motions. This appeal followed.

The first complaint has to do with Policy No. 10494, which provides for accident and health benefits, an accidental death benefit and also a schedule of payments for surgery. The second complaint has to do with Policy No. 432219, and it is alleged that it is a life and health policy, purporting to pay to the insured a per day allowance for illness or accident necessitating hospitalization, as well as a death benefit to the insured's wife.

It appears from the records of this court that after the County Judge had overruled the motions to consolidate and strike, heretofore referred to, that the appellant moved before the County Court to require the respondent to elect as to whether he would go to trial in contract or in tort. It also appears that on Policy No. 10494, the respondent elected to proceed in contract, and on Policy No. 432219 elected to proceed in tort. It appears also that from these records the appellant, after respondent had elected to proceed in contract insofar as Policy No. 10494 was concerned, made a motion to strike from the complaint all allegations appropriate to a cause of action in tort. Agreeable with this motion the respondent did strike all allegations of said complaint which had been made irrelevant and redundant by his election to proceed in contract. An amended complaint conformable to this was prepared and served.

The appellant is before this court upon a number of exceptions. This appeal may be disposed of by a determination of two questions. (1) Did the trial Judge err in refusing to consolidate the two actions? (2) Did the trial Judge properly overrule the motion of appellant to strike certain matter from the complaints, on the ground that the same is irrelevant and redundant?

In the case of Pelzer Mfg. Co. v. Sun Fire Office, 36 S.C. 213, 15 S.E. 562, 579, the following rule was announced:

"It is necessary, therefore, to inquire whether there was any error in refusing the motion to consolidate. It has long been settled, in this state at least, that a motion to consolidate is addressed to the discretion of the court; not, of course, an arbitrary or a capricious discretion, but a legal discretion to be exercised in view of all the surrounding facts and circumstances. Treasurers v. Bates, 2 Bail. [362] 380; Worthy v. Chalk, 10 Rich. [141] 142."

In the case of Bishop v. Bishop, 164 S.C. 493, 162 S.E. 756, 757, this Court said:

"Ordinarily, the granting or refusing of motions to consolidate actions for trial must be left to the wise discretion of the trial judge, but his exercise thereof will be disturbed, if it deprives a party of a substantial right, which he can show he is entitled to under the law. `Abuse of discretion,' as used in this connection, merely means that the trial judge committed an error of law in the circumstances."

"By exception 1 the appellant alleges error requiring a consolidation of the two actions. The policies in question were identical as to dates, amounts, and provisions. They differed only as to numbers. Suits on both policies were started the same day. The testimony and law were applicable alike to each policy. If there had been two trials, one on each policy, the second trial would have been but a repetition of the first, with the same witnesses and the ...


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