Brownlee v. Charleston Motor Exp. Co., Inc.

• Decision Date: 06 January 1939
• Docket Number: 14802.
• Parties: BROWNLEE v. CHARLESTON MOTOR EXPRESS CO., Inc., et al. (two cases).
• Court: South Carolina Supreme Court

200 S.E. 819

189 S.C. 204

BROWNLEE v. CHARLESTON MOTOR EXPRESS CO., Inc., et al. (two cases).

No. 14802.

Supreme Court of South Carolina

January 6, 1939

On Petition for Rehearing January 21, 1939.

On Petition for Rehearing.

Appeal from Common Pleas Circuit Court of Dorchester County; E. C Dennis, Judge.

Actions by Beatrice E. Brownlee and by Dora Frances Brownlee against the Charleston Motor Express Company, Inc. and one Chevrolet truck and trailer, trailer bearing 1936 South Carolina License No. S-4440, and the Lloyds America Insurance Company, to recover damages for injuries allegedly sustained by the plaintiffs in a collision between a truck and the automobile in which the plaintiffs were seated. Judgments for plaintiffs, and the defendants appeal.

Judgments affirmed.

John I Cosgrove and Nathans & Sinkler, all of Charleston, for appellants.

J. D Parler, of St. George, and Robinson & Robinson, of Columbia, for respondent.

BONHAM Justice.

It is conceded that the last of the above named defendants-appellants is incorrectly styled Lloyds America Insurance Company. Its correct name is Lloyds America, and will be so called in this opinion.

The two cases arose out of the same state of facts; were heard together on Circuit, and the appeals were heard together in this Court. The judgment of this Court will apply to both of them.

The actions were brought to recover damages for injuries alleged to have been sustained by the plaintiffs in a collision between a truck and the automobile in which plaintiffs were seated. The automobile was parked on the shoulder of State Highway No. 2, between Summerville and Jedburg, for the purpose of repairing or changing a tire.

The complaint alleges that while the automobile was thus parked a truck and trailer, bearing Highway Department license No. S-4440, drove into it from the rear. The truck and trailer were the property of, or under the control of, the defendant, Charleston Motor Express Company, which is a common carrier for hire and operates a truck line in and through Dorchester County under a class F certificate issued by the South Carolina Public Service Commission, carries on a general transportation business for hire, and operates property carrying motor vehicles over the highways of the State of South Carolina. That the truck and trailer, the trailer bearing 1936 S.C. license No. S-4440, was being operated over and upon the truck line of the defendant, Charleston Motor Express Company, Inc., by an agent and servant of the said Charleston Motor Express Company, hauling and transporting freight for hire. The defendant, Lloyds America, is a corporation organized under the laws of the State of Texas; has a place of business in the State of South Carolina, is engaged in the business of insuring trucks, automobiles and motor vehicles for hire in the State of South Carolina, and is the insurance carrier for Charleston Motor Express Company, and its policy covered the Charleston Motor Express Company and its truck and trailer which was operated by said Charleston Motor Express Company on its line at the time of the collision. That on the night of April 28, 1937, while the plaintiff was sitting in the automobile, parked on the right shoulder of Highway No. 2, at the point above named, the truck and trailer ran from the rear with much force into and upon the automobile occupied by plaintiff, throwing plaintiff from the car, which was demolished, and inflicting upon her severe personal injuries in and upon the face, head, body and limbs. There follows in the complaint nine specifications of negligence on the part of the driver of the truck and trailer, and details of the injuries suffered by plaintiff. The prayer is for $3,000.

The defendant, Charleston Motor Express Company, Inc., by its answer, set up a general denial. It specifically denies that it was, at the time of the collision, the owner of, or in possession of, or had under its control, the truck and trailer; and it denies that it is a common carrier for hire, but admits that it operates a truck line under a class F certificate from the South Carolina Public Service Commission, that it owns and operates property carrying motor vehicles over the highways of the State. Denies the fourth paragraph of the complaint. Admits that it has a public liability and property damage insurance policy with Lloyds America; that said policy was filed according to law, but denies that the defendant truck and trailer were its property or were operated on its truck line; and alleged that the said policy of insurance covered the operation of trucks and trailers engaged in its own business, but did not cover the operation of trucks and trailers not engaged in its business; admits on information and belief the allegations of paragraph 7 of the complaint as to the collision, but denies that the defendant truck and trailer were being operated by an agent or servant of this defendant.

For further defense: That the plaintiff and the driver of the car in which plaintiff was riding were engaged in a joint enterprise, and sets up the plea of contributory negligence.

For a further defense: There is set up the plea that the defendant truck and trailer were the property of J. Cordray and were being operated by his agent or servant, who was then engaged in the business of the said J. Cordray and were entirely under the management or control of said J. Cordray, or his agent or servant, and this defendant has no control over or responsibility for the operation of said truck and trailer, which were not engaged in its business.

The defendant, Lloyds America, set up for answer, a general denial: Denies on information and belief that Charleston Motor Express Company, Inc., is now, or was at the time referred to in the complaint, the owner of or had control or possession of the defendant truck and trailer; denies that Charleston Motor Express Company is a common carrier for hire, but admits that it operates a truck line under a class F certificate from the South Carolina Public Service Commission, and that it operates property carrying motor vehicles over the highways of South Carolina. On information and belief, denies the 4th paragraph of the complaint. It sets up that its true name is "Lloyds America." It admits that Charleston Motor Express Company, Inc., has a public liability and property damage insurance policy with this defendant, but denies that the policy covered defendant truck and trailer, and denies that they were the property of, or operated on, the truck line of the defendant Charleston Motor Express Company; it alleges that the liability of Lloyds America is strictly limited to the terms and conditions of said policy of insurance. Sets up the plea of contributory negligence; denies the 8th paragraph of the complaint.

For further defense: That under the terms and conditions of the policy issued by this defendant to the Charleston Motor Express Company, Inc., which is known as a public liability and property damage policy, it was applicable to and covered only certain trucks and trailers therein described, owned by defendant Charleston Motor Express Company, Inc., and operated by it in its business; that the defendant truck and trailer were not owned or operated by Charleston Motor Express Company, Inc., in its business at the time and place mentioned in the complaint; and the defendant truck and trailer were not covered by the said policy, nor any amendment to or endorsement thereto. That at the time mentioned in the complaint the defendant truck and trailer were not licensed or operated under certificate of public convenience or necessity or permit issued to the Charleston Motor Express Company, Inc., by the Public Service Commission of South Carolina, or the Interstate Commerce Commission, or otherwise under the statutes of South Carolina or the acts of Congress, and this defendant has no liability for the operation of said defendant truck and trailer.

The cases came on for trial before the Hon. E. C. Dennis, Circuit Judge, with a jury, at the May, 1938, Term of the Court of Common Pleas for Dorchester County and resulted in verdicts for the plaintiffs in each case in the sum of $3,000. Motions for nonsuit, directed verdict and new trial were made and denied.

The defendants appeal upon five exceptions. They raise on behalf of Charleston Motor Express Company, Inc., and Lloyds America the following questions as set out in appellant's brief:

"I. The motor vehicle involved in this cause was not covered under the policy of insurance existing between Charleston Motor Express Company, Inc., and Lloyds America; hence it was error not to dismiss Lloyds America from the case.

II. Cordray, as the owner and operator of the truck involved herein, was an independent contractor, so that neither of the defendants could be held liable for his tortious acts or those of his servants."

When the appeal in this case was called to be heard in this Court, appellants' counsel moved the Court "to strike from respondents' brief the so called appendix printed at page 19 thereof purporting to incorporate Rule 50 of the Public Service Commission of South Carolina, and also to suppress and expunge from the record the portions of the argument in behalf of respondents based on said rule and contained in the brief of respondents filed in this case, upon the ground that said Rule 50 of South Carolina Public Service Commission is not contained in the transcript of record of this appeal, was not in evidence upon the trial of this cause and was not presented to or considered by the trial Judge upon the trial of this cause, * * *."

After argument, the Court took the matter under advisement, to be considered in connection with the whole case.

The...