dissenting:
The majority, I think, are too precipitate to accuse and convict Allen of the despicable conduct of “playing fast and loose” with the Court by first characterizing to his advantage his working relationship with Scruggs as an employee and later maintaining, also to his benefit, that he was not an employee. The initial instances charged are Allen’s allegations in his State court complaint against Scruggs for personal injury damages, and also in his statements before the South Carolina Industrial Commission, to the effect that he was Scruggs’ employee. The subsequent instance charged is his testimony in the immediate suit in the District Court to recover on the Zurich policy, denying that he was Scruggs’ employee.
To be noted at once is that, when interrogated upon these contradictions at trial in the District Court, Allen was not evasive or equivocal, acknowledging that he made the responses attributed to him. His explanation was simply and plainly that he had answered in the way he did because of his ignorance of the precise definition of the term “employee.”
On this point the Federal jury presumably upheld him as having proved the truth of this explanation by his testimony as well as upon other evidence to the effect that, when engaged with Scruggs in any undertaking, he was a co-worker and, indeed, at the same time he had a somewhat similar and related but separate business of his own. Against this proof Zurich proffered no evidence except to cross-examine Allen upon his answers in the first case.
Indeed, the majority concede that the judgment n. o. v. vacating Allen’s favorable verdict cannot stand as an adjudication that Allen was an employee. With this verdict undisturbed and the foregoing evidence in mind, it is difficult to accept the majority’s denial of recovery by Allen and to do so on the thesis of “judicial estoppel.” Incidentally, no such averment was even hinted, much less advanced, by Zurich in the trial or its written and oral arguments on this appeal. All arguments briefed or urged orally have been abandoned. Under the law of South Carolina, which controls in the Federal court in this removed case,1 a party *1169may without prejudice take inconsistent positions in different actions, as is now charged to Allen by Zurich.2 The insurance company cannot be allowed to preclude this right of Allen by removing this action to the Federal forum.
Additionally, the record discloses pertinent inconsistencies in Zurich’s behavior. Having first unsuccessfully defended Scruggs in the State Court action on its plea that Allen was not an employee, the insurance company now seeks to avoid its own liability to pay Allen’s claim because he was an employee. With the equities in such parity, this case presents a singularly poor candidate for reversal on the proposed grounds.
For me a startling injustice is done here. While at work, Allen, without fault, received a hand-crushing blow through another’s neglect, and now a monetary award for his suffering is stricken under a theory upon which he was never heard, at trial, on appeal or otherwise. This offends my sense of justice.
. The majority opines that the dispositive concern is the “protection of the integrity of the federal judicial process,” and concludes that Federal law alone controls this point. Erie R. R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), and its progeny, however, teach that the preeminent factors to be weighed in the balance are the “discouragement of forum-shopping and avoidance of inequitable administration of the laws.” Hanna v. Plumer, 380 U.S. 460, 468, 85 S.Ct. 1136, 1142, 14 L.Ed.2d 8 (1965). Although the Federal policy noted by the majority is not without some force, it must yield when the choice of a Federal rule necessitates a result contrary to that attaining under the applicable state rule. See Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945).
Byrd v. Blue Ridge Rural Electric Cooperative, Inc., 356 U.S. 525, 78 S.Ct. 893, 2 L.Ed.2d *1169953 (1958), is not contrary to this position. There the Supreme Court stressed that they did “not think the likelihood of a different result is so strong as to require the federal practice ... to yield to the state rule in the interest of uniformity of outcome.” Id. at 540, 78 S.Ct. at 902. In the instant case, however, the proposed Federal rule would require a different outcome; the “interest of uniformity of outcome” is directly jeopardized.
. The Supreme Court of South Carolina recently displayed its hostility towards the doctrine now espoused by the majority. MacFarlane v. Manly, 264 S.E.2d 838 (S.C.1980). The court in MacFarlane makes the following pertinent statement:
Much is made in argument of the fact that some of the allegations of the complaint against the defendant in an earlier action are inconsistent with the positions now taken by the [plaintiff MacFarlane]. Such can be of little comfort. The fact that a plaintiff, in different lawsuits, may take inconsistent positions does not as a matter of law bar the right to recovery.
264 S.E.2d at 840. The opinion continues to suggest that such inconsistencies merely present questions of credibility to be resolved by the jury.