Be-Mac Transport Co., Inc. v. Lairmore
| Decision Date | 15 September 1942 |
| Docket Number | 30162. |
| Citation | 129 P.2d 192,191 Okla. 249,1942 OK 284 |
| Parties | BE-MAC TRANSPORT CO., Inc., et al. v. LAIRMORE. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. The provisions of 47 O.S.1941 § 169, requiring motor carriers to file with the corporation commission a liability insurance policy or bond covering public liability and property damage were not superseded by the Federal Motor Carrier Act of 1935, 49 U.S.C.A. § 301 et seq., and a fair and reasonable enforcement thereof does not violate the commerce clause of the Federal Constitution or constitute undue interference with the power of Congress to regulate commerce between the states, art. 1, sec. 8, U.S.Const.
2. A joint action for personal injuries may be maintained in this state against an interstate motor carrier and its insurer pursuant to 47 O.S.1941§ 169, by one injured in this state by the negligence of the carrier and who was not at the time of the injury an employee or an interstate passenger of said motor carrier.
3. Record examined. Held: The evidence pertaining to the extent and duration of the injury and disability and the necessary expenses resulting from the injury was sufficient to warrant the recovery fixed by the jury.
Appeal from District Court, Tulsa County; Leslie Webb, Judge.
Action by Mark H. Larimore against Be-Mac Transport Company Incorporated, and another to recover for injuries sustained in an automobile collision. From a judgment in favor of the plaintiff, the defendants appeal.
Judgment affirmed.
Hudson & Hudson, of Tulsa, for plaintiffs in error.
Hugh Ownby, C. A. Warren, and Ownby & Warren, all of Tulsa, for defendant in error.
This is a personal injury action arising out of a motor car collision. Judgment was for plaintiff, and defendants appeal.
Plaintiff was a member of the fire department of the city of Tulsa. The collision occurred at a street intersection between a fire truck operated by plaintiff and a truck owned and operated by the defendant Be-Mac Transport Company, Inc. The collision was alleged to have occurred as a result of the negligence of the defendant's driver in operating the truck at an excessive rate of speed and in not yielding the right of way to the fire truck at the intersection, all in violation of the city ordinances.
There was a charge of contributory negligence in operating the fire truck at an excessive rate of speed and in disregard of the safety of others.
The defendant American Fidelity & Casualty Company was joined in the action as insurance carrier of the transport company under a policy issued pursuant to 47 O.S.1941 § 169, relating to public liability insurance for motor carriers.
Defendants' principal contention is that the joinder of the insurance carrier as a party defendant was improper since the transport company was engaged solely in interstate commerce, and that the trial court erred in denying the motion of the insurance carrier to dismiss for misjoinder, and in holding that it was a proper party.
In this connection it is urged that the right as recognized in this state under section 169, supra, to join the insurance carrier in a personal injury action is created by the statute and not by the insurance contract; that the Federal Motor Carrier Act, 49 U.S.C.A. § 301, et seq., which does not permit joinder in such case, supersedes and renders inoperative said section 169 so far as it interferes with interstate commerce. And further, it is contended that since the truck was actually engaged in interstate commerce at the time of the accident and was operating under a permit from the Interstate Commerce Commission, the Federal Act superseded the state statute with reference to control of the commerce then engaged in by the transport company, and that the insurance contract here in question, executed pursuant to the state law, was inoperative, and any suit attempting to hold the insurer jointly liable with the motor carrier constituted an unreasonable and unauthorized interference with the regulations of interstate commerce as placed thereon by Congress, and, such joinder being unauthorized, the unwarranted disclosure of insurance to the jury in this case resulting from such joinder was prejudicial to the defendant transport company.
Ordinarily in an action for personal injuries any unwarranted reference to defendant's liability insurance in the presence of the jury is improper and considered highly prejudicial to defendant's legal rights. Yoast v. Sims, 122 Okl. 200, 253 P. 504; Hankins v. Hall, 176 Okl. 79, 54 P.2d 609. There may be considerable merit to the argument that the improper joinder of the insurance carrier in the ordinary case if brought to the attention of the jury would amount to an unwarranted reference to insurance, and that reversible error would result in event the parties were forced to trial over their objections. But we look upon the joinder in this case as proper, and as fully authorized by the statute, Section 169, supra. By reason of that section the defendant transportation company was required to, and did, furnish a policy of liability insurance for the protection of itself against claims of this character and for the benefit of parties receiving injuries as a result of its wrongful acts. Said section has been interpreted by this court as authorizing a joint action on the part of an injured party against the motor carrier and its insurer. American Fidelity & Casualty Co. v. Bennett, 182 Okl. 71, 76 P.2d 245.
Defendants do not dispute the right to such joinder in the ordinary case against a motor carrier, but say, as stated above, that the present action is not governed by the state statute, but controlled exclusively by the Act of Congress aforesaid, and under the latter Act the insurer cannot be joined with the motor carrier in an action for personal injuries. Grier v. Tri-State Transit Co., D.C., 36 F.Supp. 26.
It would seem that if the Federal Motor Carrier Act (1935) superseded section 169, supra, and now constitutes the exclusive legislation upon the matter of public liability insurance for motor carriers engaged in interstate commerce, then the policy posted with the corporation commission by the transport company was not required by law but was merely a personal contract for the protection of the motor carrier, and the insurer may not be joined unless the right to so join is expressly granted as a contractual privilege extended to a third party, and not as a statutory right granted by section 169.
Congress has power to regulate commerce among the several states. Art. 1, sec. 8, U.S.Const. Pursuant to that power Congress has delegated to the Interstate Commerce Commission certain supervisory authority and regulatory powers over interstate motor carriers. 49 U.S.C.A. § 301, et seq. Section 315 of the Code, supra, confers on the commission the power to make rules and regulations concerning the filing of bonds by the motor carriers and denies the carriers the right to operate without such bonds as will protect all persons and property against injury resulting from the negligent operation of motor vehicles.
But the power to regulate interstate commerce as delegated to Congress by the Constitution, supra, does not extend to every use to which an interstate carrier may employ the highways in the several states nor to every act done or committed by them in the course of their interstate transportation. And the Act of 1935 does not purport to deprive the states of their inherent right to regulate the use of their...
To continue reading
Request your trial