Bailey v. U.S. Fidelity & Guaranty Co.

• Decision Date: 11 November 1937
• Docket Number: 14568.
• Parties: BAILEY v. UNITED STATES FIDELITY & GUARANTY CO.
• Court: South Carolina Supreme Court

193 S.E. 638

185 S.C. 169

BAILEY v. UNITED STATES FIDELITY & GUARANTY CO.

No. 14568.

Supreme Court of South Carolina

November 11, 1937

Appeal from Florence County Court; R. W. Sharkey, Judge.

Action by Dozier Bailey, by his guardian ad litem, Ervin Bailey against United States Fidelity & Guaranty Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

W Marshall Bridges, of Florence, for appellant.

Willcox Hardee & Wallace G. Badger Baker, and George W. Keels, all of Florence, for respondent.

STABLER Chief Justice.

A statement of the following facts is necessary for a proper understanding of the issues involved in this appeal: On July 13, 1935, United States Fidelity & Guaranty Company, hereinafter referred to as the company, issued to one Harry E. Thomas an automobile liability policy, under the terms of which the company agreed, among other things, "to pay all sums which the assured shall become liable to pay as damages imposed upon him by law for bodily injury * * * accidentally sustained by any person or persons if caused by the ownership, maintenance or use of any automobile disclosed in the declarations for the purposes therein stated." By section IV it was provided that the policy shall exclude any obligation of the company: "(a) Under any of the above agreements, while any disclosed automobile is being driven * * * by any person under the age fixed by law or under 14 years in any event." On March 7, 1936, while the automobile of the insured was being operated by his son, a boy under the age of fourteen years, the plaintiff herein, one Dozier Bailey, was injured by coming in contact therewith. Thereafter, on April 4, 1936, the company brought an action against the insured, in which a judgment was sought under section 660 of the Code of 1932, to the effect that the policy issued Thomas by the company, because of the violation of its terms in the driving of the automobile, be declared null and void, and that the insurer be relieved of all liability to the insured by reason of the accident in which Bailey was injured. Bailey was not made a party to this proceeding; and Thomas, the sole defendant, did not answer the complaint or otherwise plead in the action, and made no return to the rule to show cause issued therein. On April 13, Judge Bellinger, who heard the matter, signed an order giving judgment as prayed for. There was no appeal by Thomas from this order; but on August 7, 1936, he filed a petition in the case asking that the declaratory judgment be opened up on the ground of excusable neglect. Judge Shipp, however, who heard the motion, refused the petition, holding that the showing made was insufficient.

On July 24, 1936, an action was commenced in the Court of common pleas for Florence county by Bailey against Thomas for damages on account of the injuries received by the former in the accident referred to. Thomas defaulted in this case; and on trial of the cause the jury gave the plaintiff a verdict for $1,250, and judgment, from which no appeal was taken, was duly entered up for that amount, together with costs, on December 2, 1936. On the following day, December 3, execution was issued on the judgment, but was returned nulla bona by the sheriff of Florence county. On December 7, the present action was begun by the plaintiff, Bailey, against the company, as defendant, under the provisions of the policy. By its answer to the complaint, the defendant denied any liability to the plaintiff, contractual or otherwise, and set up, as an affirmative defense, its declaratory judgment as a bar to plaintiff's alleged rights in the action.

Upon trial of the case, at the close of all the testimony, each of the parties to the suit moved for a directed verdict, it being agreed that there was no question of fact to be decided by the jury. The motion of the defendant was refused and a verdict was directed for the plaintiff for $1,309, this being the amount, with accumulated interest, which Bailey, as plaintiff, had previously recovered in the action against Thomas, the insured.

Counsel for the appellant, defendant below, argues two questions, the first of which may be stated as follows: Is the insurance company exempted from liability in this case under the exclusion clause of the policy as above quoted?

There is no dispute about the facts. While the automobile was being driven at the time of the accident by the son of the insured, a boy under fourteen years of age, the evidence is to the effect that his age had nothing to do with bringing about such accident, and that it would have happened if a most careful and efficient adult driver had been operating the machine.

The respondent contends, and it was so held by the court below, that the company is not exempted from liability, no causal connection being shown between the age of the driver and the accident or injury complained of, and cites McGee v. Globe Indemnity Company, 173 S.C. 380, 175 S.E. 849, as being conclusive of such contention. The appellant argues, however, that the last three words, "in any event," of the exclusion clause of the policy before us, not found in the policy in the McGee Case, render that decision inapplicable, and refers to the concurring opinion therein to sustain its position.

We think that the ruling of the trial judge was correct. This court, in McGee v. Globe Indemnity Company, supra, held that that case was controlled by Reynolds v. Life & Casualty Insurance Company, 166 S.C. 214, 164 S.E. 602, where the policy of insurance issued by the defendant contained a provision that the company would not be liable "if the insured shall die * * * as a result of acts committed by him while in the commission of * * * some act in violation of law"; and where, in disposing of the contention of the company, that the quoted provision under the facts stated relieved it of liability, it was held: "In order to defeat recovery under policies excluding or limiting liability where death or injury results from an unlawful act on the part of the insured, there must be shown, in addition to the violation of the law,...