August 29, 1933. The opinion of the Court was delivered by *Page 61 The appellant brought action against Rock Hill Printing Finishing Company and A.O. Joslin to recover damages for injuries to his lands, and other property rights, by polluting the waters of Fishing Creek which runs through appellant's lands; which waters are used by appellant and his family for domestic purposes, for the watering of his live stock, for power for his grist mill and gin, and for like uses. He alleges that the pollution is caused by the printing finishing company, of which A.O. Joslin is manager, discharging its effluent, tailings, refuse, and poisonous substances and deleterious matter into the sewerage system of the City of Rock Hill, from which they are conveyed to the waters of Fishing Creek which runs through appellant's land.
The above-named defendants attempted to secure the removal of the case to the United States District Court for the Western District of South Carolina, on the ground of diverse citizenship, the Rock Hill Printing Company being a foreign corporation. The motion for such removal was denied. Thereupon these defendants vouched the City of Rock Hill to come in and defend the suit. The city then petitioned the Court of Common Pleas to be made a party defendant to the action. The plaintiff resisted the petition, but by order of date November 4, 1932, the petition was granted.
It is from that order the appeal comes to this Court.
The Rock Hill Printing Finishing Company, which for the sake of brevity I shall call the printing company, and the City of Rock Hill, of which I shall speak as the city, answered the complaint. The essential features of the answers here to be considered are comprised in the allegations: That the printing company, when it established its plant at Rock Hill, entered into a contract with the city by which it was given the right to empty its effluent, sewerage, tailings, etc., in the sewerage system of the city; and that the city *Page 62 contracted to hold the printing company harmless in any suits or actions which might be brought against it for such use of the city's sewerage system.
The sole question of the appeal with which I care to deal is whether it was error to make the city a party to the suit.
Mr. Justice Carter has written an opinion in the case sustaining the order of the Circuit Judge. Since I cannot concur in that opinion, I think it is well that I state the grounds of my conclusion, as briefly as I may.
Mr. Justice Carter concedes that it is the well-established rule of law in this jurisdiction that a plaintiff may sue one or more of several joint tort-feasors, at his election; but he holds that the rule does not apply in this present case, because it is applicable only in actions at law, and this is a suit of twofold nature; an action at law for damages and a prayer for injunctive relief, based on appropriate allegations. In support of this position he cites from 47 C.J., 81, the following: "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 had in an action asking equitable relief, as where plaintiff seeks an injunction against the continuance of the tortious acts."
I do not think this citation sustains the contention of Mr. Justice Carter's opinion. By its express terms it does not apply, where there has been a common design or concert of action between the defendants. The very ground of the petition for making the city a party to this action is the common design and concert of action between the printing company and the city. Again, the author of the article cited explicitly states that there cannot be a joinder, "in such case in an action at law for damages." But it is argued that this *Page 63 is a suit in equity. I am not able to agree with this conclusion. It is an action at law sounding in tort. The prayer is for damages. The prayer for an injunction to restrain defendants from a continuance of the tortious acts complained of is but an incident to the relief sought, and cannot change the nature of the action. No injunction can be granted unless there is a recovery of damages, and that question can be decided only by a jury. A typical case of this character is that of Brasington v. Williams et al., 143 S.C. 223,141 S.E., 375. That was an action for damages and injunction, for obstructing a road, and was tried on the law side of the Court with a jury. When the jury found nominal damages for plaintiff, and not till then, the Court, in the exercise of its equity function, granted the order which made the injunction permanent. No question was made that this was not an action at law.
It may be conceded that the rule laid down in the citation from Corpus Juris, supra, will apply in a case where the sole relief sought is equitable; as for instance, in a suit by one tenant in common to restrain another tenant in common from a threatened unlawful use of the common property, and there are other parties necessary to the complete determination of the issue.
Mr. Justice Carter seeks to differentiate this case from that of Little v. Lassiter Co., 156 S.C. 286,153 S.E., 128, on the ground that in the Little case the demand was for a money judgment only. The record of the printed case does not so appear. The nature of the action, which was one for damage for trespass on real estate, would seem to indicate that plaintiff desired to enjoin the continuance of the trespass as well as to recover damages. However, that is by the way. The Little case, it seems to me, definitely settles the issue here presented, viz., was the city properly made a party to this action?
Mrs. Little sued the R.G. Lassiter Company for cutting a ditch on her land. They were road contractors, and for one defense pleaded that they acted under the authority and *Page 64 by the direction of the State Highway Department, and they sought to have the Highway Department made a party defendant. The petition was denied. On appeal Mr. Justice Blease, now Chief Justice, delivered the prevailing opinion, in which he said:
"This action is one on tort. The respondent, as plaintiff, sued the appellant, as defendant, for appellant's alleged tortious trespass on her lands. It does not appear from the complaint that the respondent knew that the State Highway Department authorized the acts of the appellant, the road contractor. But even if the respondent knew that, under the well-recognized legal principles * * * the respondent had the clear legal right to sue both the contractor and the State Highway Department, or to sue either one of them alone.
"The appellant's effort to make the State Highway Department a party to the action against the desire of the respondent was, to my mind, an interference with a well-recognized legal right of the respondent."
From Corpus Juris I take the following: "Unless otherwise provided by statute, and subject to certain exceptions, strangers to a suit may not be allowed to interfere therein and become parties without, or against plaintiff's consent." 21 C.J., 342.
In the case under consideration against plaintiff's strenuous objection, and upon the petition of the City of Rock Hill, taken at the instance of the defendants, the Rock Hill Printing Finishing Company, and its manager, A.O. Joslin, the city is made a party to the action for the alleged reason that there is a contractual relation between the city and the printing company — to which plaintiff is a total stranger — under the terms of which the city may or may not become liable to the printing company.
The case is in strict accord with the case of Little v.Lassiter, supra, and I may, with peculiar aptness, quote again the language of the present Chief Justice in that case, to wit: "The appellant's effort to make the State Highway *Page 65 Department a party to the action against the desire of the respondent was, to my mind, an interference with a well-recognized legal right of the respondent."
Again, from the same opinion I quote this: "While agreeing with the conclusion of the Chief Justice (Watts) that the order below should be affirmed, because of the view I entertain, I cannot concur in his holding that the matter of requiring or failing to require the respondent to bring in the State Highway Department was one within the discretion of the presiding Judge. As indicated, I think the respondent had the right to elect if she should sue one or both of the alleged tort-feasors."
Associate Justices Stabler and Carter concurred in this opinion. Chief Justice Watts concurred in the result. Mr. Justice Cothran dissented on certain grounds, but he concedes the correctness of the statement that a plaintiff in an action in tort may sue one or more joint tort-feasors at his election.
Let the plaintiff and the Rock Hill Printing Finishing Company settle the issue between them without injecting into the case the power and weight of the influence of the city against the plaintiff.
In the contract between the printing company and the city the latter is not liable to recoup the former if it lose in this action, if it is shown that the printing company was negligent in the care and operation of its plant. The city's liability is contingent. It should keep "hands off" till that issue of liability is settled between the original litigants.
The judgment of this Court is that the order appealed from be, and the same is hereby, reversed.
MR. CHIEF JUSTICE BLEASE and MR. JUSTICE STABLER concur.