Little v. Robt. G. Lassiter & Co.

This is an appeal from an order of his Honor, Judge Henry, refusing a motion by the defendants for an order making the South Carolina Highway Department a party defendant in the action.

The defendants, Lassiter Co., were road contractors under contract with the highway department to pave the highway between Columbia and Lexington. The plaintiff alleges that in the construction of said work the defendants trespassed upon her land adjacent to the right-of-way of the road to her damage. The defendants claim that the damage, if any was caused by the construction of a ditch which began upon the right-of-way and extended upon the land of the plaintiff outside of the right-of-way; that the construction of the ditch was not a part of their undertaking under the contract with the department, but was undertaken at the express direction and authorization of the department under their conception that it was necessary for the proper drainage of the highway at that point, and arose to meet an emergency.

The theory of the defendants is that, if this condition be true, while they may be held liable for the damage done to the plaintiff, the highway department is liable over to them for such damages as they may be compelled to pay by reason of carrying out the express orders of the department in a matter not covered by their contract.

The issue between the parties upon the motion was so considered by his Honor who held that under the circumstances the department was not a necessary party; he refused the motion, and the defendants have appealed.

I think that there can be no controversy over the proposition that, if one should commit a tort, as the agent of another and at his special direction as to the fact and the manner of its perpetration, the principal and the agent would be joint tort-feasors; the same relation would exist if the tort should be committed by the agent acting within the actual scope of his agency, though not specially directed by the principal.

In either case the party injured would not be obliged to join both joint tort-feasors in his action; he might sue either or both. In an action against the agent alone, it could not therefore be said that the principal was a necessary party.

I think that it is equally true that, where the principal is held liable for the tort of his agent, not authorized or ratified by him, he has a cause of action against the agent for reimbursement of what he may be compelled to pay.

It would appear logically to follow that, when an agent is held liable for an act constituting a tort, which he was directed to perform by the principal, he would have an action against the principal for reimbursement.

In Tiffany Agency (2d Ed.), 428, it is said: "If the proper execution of the agency involves or may involve acts from which loss or liability may result, the request to undertake the agency operates as an implied promise to indemnify the agent against such loss or liability."

In 21 R.C.L., 834, it is said: "As a general rule, where one is employed or directed by another to do an act in his behalf, the law implies a promise of indemnity by the principal for damages resulting to the agent proximately from the execution of the agency, and for necessary expenses advanced or incurred by the agent in order to consummate that which he is directed to do."

See, also, 31 Cyc., 1532, 18 R.C.L., 544.

The matter is not to be decided upon the issue whether or not the principal under these circumstances is a necessary party to the action against the agent. I concede that he is not; but the issue is whether or not he is a proper party. If he is responsible over to the agent, I do not think that there can be a question but that he is a proper party, and it seems clear that in the orderly administration of justice and the settled policy of this jurisdiction to settle all controversies between parties interested, in one action, he should be made a party.

In fact, I cannot perceive any commendable objection to having two strings to the bow — two parties instead of one responsible to the injured party.

In Peurifoy v. Mauldin, 142 S.C. 7, 140 S.E., 253, 255, it was held that in an action against the president of a bank and a fidelity company, to recover the value of securities owned by the bank and alleged to have been misappropriated by the president, in which the fidelity company's answer alleged that the president delivered the securities, in connection with a personal affair, to a surety company which had knowledge of the president's dishonesty, the fidelity company was entitled to have the surety company brought in as a party defendant.

The Court says: "It cannot injuriously affect the receiver, who will have his judgment against both, and in the final decree the rights of the American Surety Company as against the National Surety Company will be protected."

Miller v. Insurance Co., 132 S.C. 78, 129 S.E., 131,133, an action on a Sheriff's bond against a surety, holds that the trial Judge abused his discretion in refusing to have the Sheriff made a party, the Court saying: "It occurs to us that every conceivable ground was present to induce the conclusion that the bringing in of the Sheriff as a party defendant was just, reasonable, and in line with the policy of the law ``to prevent a multiplicity of suits and that there may be a complete and final decree between all parties interested'; certainly ``a consummation devoutly to be wished,' a desirable result."

In the Miller case, supra, this Court declares: "The following authorities demonstrate that the joinder of the party from whom the defendant is entitled to indemnity is so just and reasonable that the denial, without any reason at all, is reviewable, notwithstanding the general rule that such matters are within the discretion of the trial Judge" — citing numerous authorities.

In Fort Worth v. Allen, 10 Tex. Civ. App. 488,31 S.W., 235, 237, it is held: "It has always seemed to us just and right that the one who is ultimately [liable] * * * should be made a party to the suit in which the amount of his liability is to be fixed."

In Philadelphia Underwriters v. Fort Worth,31 Tex. Civ. App. 104, 71 S.W. 419, 420, cited by this Court inMiller v. Insurance Company, the opinion declares: "Indeed, as an original proposition, it is undoubtedly true that the prevention of a multiplicity of suits is desirable, and we find no sound reason why in this case the Court should not in the one action proceed to determine the rights and liabilities of the respective parties. Such rights and liabilities in their final analysis, rest upon the same wrongful act, omission, or transaction. Without such act or omission, no cause of action would have arisen, and it certainly seems in harmony with our system of jurisprudence to hold that the judicial tribunal whose power to pass in review upon the transaction is invoked shall determine and declare the legal effect of every proximate consequence, if the same can be done without confusion, multiplication of issues, or impairment of substantial rights of the parties involved."

This Court has already decided the precise point involved in this appeal in a case remarkably similar to the case at bar,Gooch v. Elliott, 120 S.C. 245, 113 S.E., 72:

"In a suit for trespass, direction of a verdict for defendants because they acted by direction of a county highway commission was error, since they would still be personally liable if they knew their acts were unlawful, and that was a question for the jury.

"Where defendants in an action for trespass were acting as agents for the county highway commission in repairing a highway when they entered upon plaintiff's land and removed top-soil, the county highway commission should be made a party defendant."

To quote from the opinion: "It is apparent that a complete determination of the rights of the parties cannot be had without the presence of the Cherokee County Highway Commission as a party defendant, and the plaintiff is directed by amended summons and complaint with appropriate allegations to conform to this suggestion."

For these reasons I think that the order appealed from should be reversed and the case remanded to the Circuit Court, with direction that a proper order be issued making the highway department a party defendant, with leave to the defendants, if they be so advised, to amend their answer so as to obtain the benefit of reimbursement in the event that recovery be had against them and they establish their right thereto.