Benn v. Camel City Coach Co.

• Decision Date: 01 September 1931
• Docket Number: 13236.
• Citation: 160 S.E. 135,162 S.C. 44
• Parties: BENN v. CAMEL CITY COACH CO. et al.
• Court: South Carolina Supreme Court

160 S.E. 135

162 S.C. 44

BENN v. CAMEL CITY COACH CO. et al.

No. 13236.

Supreme Court of South Carolina

September 1, 1931

Appeal from Common Pleas Circuit Court of Richland County; William H. Grimball, Judge.

Action by R. W. Benn against the Camel City Coach Company and others. From an order sustaining a motion and demurrer and directing that the Globe Indemnity Company be eliminated as a party defendant, plaintiff appeals.

Order reversed, and cause remanded.

The following is the order of Circuit Judge Grimball:

This matter comes before the Court on motion of the Defendants to set aside a default, to strike from the list of Defendants the name of the Globe Indemnity Company, to require the Plaintiff to separately state a cause of action for property damages and personal injury, and on the demurrer of the Globe Indemnity Company.

The question of opening a default being within the discretion of the Court, and being of the opinion that the default should be opened the other motions were heard.

It appears that the action is one in which the Plaintiff states two causes of action, one for negligence and one for willfulness against the Camel City Coach Company and C. B. White, the bus driver, both growing out of a collision which occurred between Plaintiff's automobile and the Camel City's bus, near Blackstock, South Carolina.

The Globe Indemnity Company was made a party by reason of a Twenty Thousand ($20,000.00) Dollar indemnity bond which it filed insuring and indemnifying passengers and the public receiving personal injury by any acts of negligence of the Camel City Coach Company pursuant to the provisions of the act of 1925, 34 Stat. 252, as amended.

The question of joinder of these actions revolved around a discussion of the case of Piper v. Fidelity & Casualty Company, 157 S.C. 106, 154 S.E. 106. The Globe Indemnity Company, by its demurrer, and the other defendants, by their motion, took the position that the Globe Indemnity Company could not be joined in either an action growing out of the negligent conduct of the Bus Company or an action growing out of its wilful conduct.

With that view I am in accord, as I do not think that the question of liability insurance should go to the jury in a tort case.

The proper question for determination by the jury in a case of this kind is whether the Plaintiff was injured; whether, if injured, his injuries were caused by the Bus Company; and whether the Bus Company was negligent in afflicting such injuries. And that should be the only issues for determination by a jury. If it is made known to the jury that the Defendant, regardless of when or who it may be, will be relieved of the payment of any judgment recovered because of the protection under a liability policy the jury, who are only human, will determine the issues with less regard for the actual rights of the parties. In the opinion of the Court, this would throw the door wide open to prejudice and partial verdicts--something not contemplated in the eyes of the law. Having expressed that view at the oral hearing before me the plaintiff asked leave to amend the complaint pursuant to my order setting out only a cause of action for negligence so the question might be squarely decided. In view of the fact that the Plaintiff still had the right to amend his Complaint without leave of court under the Code, and in the exercise of my discretion permission was granted to amend the Complaint with the understanding that the same motions of the Defendants and the same demurrer should be considered with reference to the amended Complaint.

After carefully considering the matter I am still of the opinion that the joinder of the Globe Indemnity Company is not proper either in the original or in the amended Complaint, and that the case of Piper v. Fidelity & Casualty Company, 157 S.C. 106, 154 S.E. 106, is not conclusive on this point. It is therefore, ordered

1. That the default entered herein be reopened and this case placed on Calendar 1 as of February 7, 1931.

2. That a proper construction of the Complaint and amended Complaint shows only a cause of action for personal injuries, and therefore the motion of the Defendants that the Plaintiff be required to separately state his causes of action for personal injuries and property damages is hereby overruled.

3. That the motion of the Defendants, Camel City Coach Company and C B. White, that the Globe Indemnity Company be stricken from the Complaint and all reference to the Globe Indemnity Company be eliminated be granted and the Demurrer of the Globe Indemnity Company to the original Complaint be sustained upon the three grounds set out in the demurrer.

4. That the motion of the Camel City Coach Company and of C. B. White to strike from the amended Complaint all reference to the Globe Indemnity Company and the policy of insurance issued by it be and hereby is granted and the demurrer of the Globe Indemnity Company is sustained upon the three grounds set out in the demurrer.

5. That the amended Complaint with the elimination of all reference to the Globe Indemnity Company and to the policy of insurance shall remain upon Calendar 1 of this Court for disposition as to the other Defendants.

D. W Robinson and D. W. Robinson, Jr., both of Columbia, for appellant.

Tobias & Turner, of Columbia, for respondents.

BONHAM J.

This action was instituted in the court of common pleas of Richland county on January 16, 1931; it is an action for damages in the amount of $20,000 on account of personal injuries alleged to have been sustained by the plaintiff by reason of the negligent and willful act of the defendants C. B. White and Camel City Coach Company, near Blackstock, S. C., on December 4, 1930.

It appears from the allegations of the complaint that the defendant Camel City Coach Company was operating a passenger bus between Winnsboro and Chester; the bus was being driven by the defendant White; the defendant Globe Indemnity Company had executed a surety or indemnity bond in the sum of $20,000 purporting to indemnify any one injured by the negligent act of the Camel City Coach Company or its agents in operating and maintaining a bus line in this state, in pursuance of the requirements of the Act of April 8, 1925, 34 Stat. 252, as amended by the Act of March 9, 1928, 35 Stat. 1238.

The complaint as originally served alleged that the injury sustained by the plaintiff was due to the negligent, willful, and intentional act of the defendants White and Camel City Coach Company.

The defendants served upon the plaintiff a notice and a demurrer raising the following objections to the complaint:

1. That the Globe Indemnity Company should be eliminated for the reason that the issuance of a policy by it was neither necessary nor proper to an adjudication of the issues between the plaintiff and the other defendants;

2. That under the statute and the terms of the contract of insurance the Globe Company could not be charged with or held liable for an act of willfulness by the defendants or either of them, upon which charge the plaintiff's claim for punitive damages is based;

3. That there was a misjoinder of causes of action in that the defendants other than the Globe Company were charged ex delicto and the Globe Company ex contractu.

The notice and demurrer came on to be heard by his honor, Judge Grimball, on March 6, 1931, at which time he orally indicated his views as to them. Thereupon he permitted the plaintiff to amend his complaint by striking out all allegations of willfulness on the part of the defendants and relying solely upon the allegations of negligence. Thereafter his honor filed an order sustaining the motion and demurrer, and directing that the Globe Indemnity Company be...