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BARFIELD v. DILLON MOTOR SALES

May 1, 1958

MARVIN BARFIELD, RESPONDENT,
v.
DILLON MOTOR SALES, INC., APPELLANT.



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

May 1, 1958.

Marvin Barfield, the respondent herein, who was an employee of Dillon Motor Sales, Inc., appellant, commenced this action to recover damages for injuries alleged to have been sustained by him as a direct result of a fire caused and occasioned by the negligence, carelessness and recklessness on the part of the appellant.

The respondent alleged in his complaint that the appellant regularly employed fifteen or more employees, and, not being exempt therefrom, was subject to the South Carolina Workmen's Compensation Law. The complaint then alleges that the appellant had elected not to accept the provisions of the said South Carolina Workmen's Compensation Law, and as a result of such failure on the part of the appellant to comply therewith, the appellant would not be permitted to defend this action on the ground that the respondent was negligent, or that his injuries were caused by the negligence of a fellow servant, or from a risk assumed by the respondent. Section 72-118, 1952 Code of Laws of South Carolina.

The appellant answered the complaint denying the allegations thereof, and alleging that it did not have a sufficient number of employees to require it to be subject to the provisions of the South Carolina Workmen's Compensation Law. The answer further set up the defenses of sole negligence of the respondent, contributory negligence of the respondent, negligence of a fellow servant, and assumption of risk.

Prior to the service of the answer by appellant, the respondent moved for an order requiring the appellant to produce its records, showing the names of its employees and certain records relating thereto for a period prior to the respondent's injuries. This motion was heard by the Honorable J. Woodrow Lewis, the Resident Judge of the Fourth Judicial Circuit, and an oral ruling was made that the motion was premature. After the appellant served its answer, the respondent renewed his motion to require the appellant to produce its records. This motion was likewise denied by Judge Lewis. This motion was made pursuant to Section 26-502 of the 1952 Code of Laws of South Carolina, and Rule 43 of the Circuit Court. In refusing the motion, Judge Lewis held that "The pleadings failed to show sufficient grounds for the granting of plaintiff's motion and it must be denied for failure to make the requisite showing by affidavit in conformity with the applicable rules."

Thereafter, the respondent moved for an order before Honorable Bruce Littlejohn, the Presiding Judge, to permit him to examine before trial W.K. Caldwell, an officer of the appellant, and Mrs. Elizabeth Porter, bookkeeper of the appellant, with respect to their knowledge, information and records of the appellant, which would disclose information as to the nature of the employment or contracts of hire of all employees of the appellant on February 24, 1956, and for the six months period prior thereto. This motion was based upon the provisions of Section 26-503 of the 1952 Code of Laws of South Carolina, the complaint and answer in the cause, and upon the affidavit of respondent, and a certificate of respondent's attorney.

The affidavit of respondent states that at the time of his injury on February 24, 1956, and during the immediate period prior thereto, the appellant had in its employ seventeen persons whom he identified by name. However, the affidavit further states:

"That in order for deponent to safely go to trial, it is necessary that deponent know prior to trial, the nature of the contract of hire of the foregoing named persons who were working at the defendant's place of business in order to establish the foregoing necessary allegations of deponent's cause of action and to gather proof that each of said persons was an employee of defendant within the meaning of Section 72-11 of the Workmen's Compensation Act.

"That the issues upon trial will be narrowed and the length of the trial greatly shortened by permitting deponent to examine the aforesaid officers of the defendant corporation, prior to trial, so that deponent may determine accurately what facts will be in dispute as to each such person defendant contends was not an employee, within the meaning of the Workmen's Compensation Act."

The trial Judge did, on December 21, 1957, file an order allowing the respondent to examine the officer and agent of the appellant mentioned in the motion, and referred the matter to the Master of Dillon County so that the said parties could be examined:

"With respect to their knowledge, information and records of the defendant, which will or may disclose information as to the nature of the employment or contracts of hire of all employees of the defendant on February 24, 1956, and for the period six months prior thereto."

The appellant is properly before this Court on a number of exceptions which challenges the correctness of the order of the trial Judge requiring the officer and agent of the appellant to appear before the Master of Dillon County for pre-trial examination by the respondent.

The 1952 Code of Laws, Section 26-503, provides for the examination of the adverse party before trial. This section is as follows:

"The examination, instead of being had at the trial as provided in § 26-510, may be had at any time before trial, at the option of the party claiming it, before a judge of the court, on a previous notice of at least five days to the party to be examined and any other adverse party, unless, for good cause shown, the judge order otherwise. But the party to be examined shall not be compelled to attend in any other county than that of his residence or where he may be served with a summons for his attendance, unless ...


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