Adderton v. Aetna Casualty & Surety Co.
| Decision Date | 04 February 1937 |
| Docket Number | 14428. |
| Parties | ADDERTON v. ÆTNA CASUALTY & SURETY CO. et al. |
| Court | South Carolina Supreme Court |
Appeal from County Court of Florence County; R. W. Sharkey, Judge.
Action by W. R. Adderton against the Ætna Casualty & Surety Company and another. From an adverse order, defendants appeal.
Affirmed by a divided court.
A. F Woods, of Marion, for appellants.
C. T McDonald and G. Badger Baker, both of Florence, for respondent.
This case has been through various vicissitudes. The situation is shown in the order of this court for a rehearing. The order is as follows, to wit:
"A curious situation has developed in this case. On the first hearing of the appeal Mr. Chief Justice Stabler wrote an opinion to the effect that the order of the trial Judge sustaining the demurrer to the first complaint, from which order there was no appeal, barred recovery on the amended complaint, and that the trial Judge erred in denying the motion to dismiss the amended complaint. Having reached this conclusion he did not determine, nor consider the other issues made by the exceptions, save that which pertained to the question whether the truck was being used to carry passengers for hire within the meaning of the policy when the collision occurred. As to that, he held that the testimony thereabout made an issue of fact for the jury.
Mr. Justice Bonham wrote an opinion which dealt only with the matters relating to the effect of the amendments to the first complaint as referred to the order of the trial Judge sustaining the demurrer to the first complaint, and that which denied the motion to dismiss the amended complaint. He held that the amended complaint contained allegations which showed that, under the provisions of the Code, the two defendants were necessary parties to the final determination of the action.
Mr. Justice Fishburne concurred in the opinion of the Chief Justice, and Mr. Justice Carter in that of Mr. Justice Bonham. Mr. Justice Baker was disqualified. In consequence of this equal division of the Court, a reargument of the case was ordered and Hon. G. Duncan Bellinger, Judge of the Fifth Circuit, was assigned to sit with the Court in the stead of Mr. Justice Baker. He did not write a separate opinion, but concurred in the opinion of Mr. Justice Bonham, which thus became the majority opinion of the Court.
The appellants have filed a petition for rehearing which brings to the attention of the Court that certain questions made by the exceptions have not been passed upon by either of the opinions. They are, of course, entitled to have these issues determined. The petition, therefore, for a rehearing is granted, and the case ordered set down for argument at the October, 1936, term of Court."
It is apparent at the outset two separate opinions have been filed, and it is desirable to avoid any repetition of the statements of fact, or the reasoning set forth in the two opinions, by Mr. Chief Justice STABLER and Mr. Justice BONHAM, respectively.
According to the order granting a rehearing the case was reargued at the October term, 1936, of this court. The court was then composed of the Chief Justice, and Mr. Justice Bonham, Mr. Justice Fishburne, and the writer of this opinion. Mr. Justice Carter did not sit on account of illness, and Mr. Justice Baker did not sit on account of being disqualified.
The first ground for a rehearing is predicated on the proposition that the two defendants made separate contracts and not a joint contract with the insured, and that this is not an open question in the case, for the reason that the trial court so held and no appeal was taken by the plaintiff from this holding, and in consequence thereof it is the law of the case; and appellants now claim that the judgment below cannot be affirmed and that the Supreme Court, under the facts of this case, is precluded from basing a judgment of affirmation on the ground that the liability of the defendants was joint and that they made one contract and not two contracts. The real issue before the court now is whether this action can be maintained against both defendants in one suit. Judgment was rendered in the county court in solido for the sum of $1,500, for damages sustained by the plaintiff, to his automobile and for injuries to his person, in a suit against Coastal Oil Company and a Chevrolet truck, which caused the collision. It was necessary, under the law of this state, for the plaintiff to bring a single action for all of his damages to his person and his property caused by the collision. He could not split his case into two suits. Holcombe v. Garland & Denwiddie, 162 S.C. 379, 160 S.E. 881; Arthur Flickner v. Chevrolet Truck, 178 S.C. 53, 182 S.E. 104; First Carolinas Joint Stock Land Bank v. McNiel, 177 S.C. 332, 181 S.E. 21; Lawton v. N.Y. Life Insurance Co., 181 S.C. 230, 186 S.E. 909.
It was, therefore, proper, necessary, and indispensable that the plaintiff recover all damages to which he was entitled by reason of his injuries and to recover judgment in one suit; and he could not maintain separate actions for the injuries sustained. This judgment was never paid by the Coastal Oil Company. The plaintiff then brought his suit against the defendants herein, upon his complaint alleging that the defendants were liable for the judgment by reason of their joint and concurrent policy of insurance. The defendants demurred to the original complaint, and the county court sustained the demurrer and held that the liability of the two defendants is separate and not joint, and that the joinder of the causes of action in one complaint is not permitted under section 487 of the Code 1932, since each cause of action does not affect both defendants. But the county court further ordered that the plaintiff be allowed to amend his complaint if so advised.
The amended complaint was thereafter served and alleged the liability of the defendants, for the judgment against the Coastal Oil Company and the Chevrolet truck, and contained new allegations charging both defendants with liability under the terms of the combined concurrent policy or policies of insurance, issued by them simultaneously, by their joint agent, upon the one offending truck owned by Coastal Oil Company for the payment of the judgment entered upon the verdict rendered in one lump sum for damages sustained to the person and property of the plaintiff, and which were not separately stated by the jury in the verdict; that both defendants were duly notified by the insured of the claim for damages and suit thereon, but they refused and failed to appear and defend, or have the judgment proportioned as to personal damages and as to property damages; that the defendants are fraudulently attempting to hinder and delay or defeat any legitimate claims or suits against them under their combined contracts; that the defendants are one and the same concern, or are owned and controlled by the same parties in interest and are operated together as one; and that, therefore, both defendants are liable for the payment of the one judgment, as between themselves for their respective share or part thereof, and are proper, necessary, and indispensable party defendants for a complete determination of this controversy.
Both defendants served identical motions to dismiss the amended complaint upon exactly similar grounds, that the two defendants cannot be sued jointly and the order of the county court to that effect has become res adjudicata; and that the purported amended complaint is inconsistent with the order of court sustaining the demurrer to the original complaint.
The county court overruled these twin motions, in one single order, holding that the order sustaining the duplicate demurrers to the original complaint was a final determination of all questions raised by the allegations of the original complaint, but is not res adjudicata as to the new allegations, which show that the presence of both defendants is necessary to a complete determination of the rights of all parties to the controversy, and to save a multiplicity of suits; and the defendants were allowed twenty days within which to answer.
Dual answers were filed by the two double defendants, and each answer is a duplicate of the other, with absolutely the same defenses couched in the same language, except as to the name of the answering defendant, which varied sufficiently to designate the difference in name of each.
On the trial of the case, at the close of plaintiff's testimony, the attorney for the defendants moved for a nonsuit and stated that "the grounds on which I base my motion, made for each defendant separately and in writing are as follows:"
(1) There is no evidence to establish a joint liability.
(2) The testimony shows that several causes of actions have been improperly united.
(3) If some kind of liability has been established against this defendant, the amount is not established by any testimony.
(4) There is a total failure of proof of any judgment in favor of plaintiff against the person indemnified and to whom the alleged policy of this defendant was issued.
(5) It affirmatively appears that the former action was dismissed as to the person insured under the policy of this defendant and no cause of action can accrue to the plaintiff in this suit.
(6) There is a total failure of any testimony to show any legal judgment in favor of the plaintiff in the former suit, but only a verdict of a jury.
(7) There is a total failure of any testimony to show that any verdict of the jury or judgment, if any, in a former action included in it damage for which this defendant is liable under its indemnity policy, and
(8) The testimony shows that the offending...
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