Bryant v. Blue Bird Cab Co.

• Decision Date: 04 May 1943
• Docket Number: 15537.
• Parties: BRYANT v. BLUE BIRD CAB CO. et al.
• Court: South Carolina Supreme Court

25 S.E.2d 489

202 S.C. 456

BRYANT v. BLUE BIRD CAB CO. et al.

No. 15537.

Supreme Court of South Carolina

May 4, 1943

Haynsworth & Haynsworth, of Greenville, for appellants.

J Robert Martin, of Greenville, for respondent.

STUKES Justice.

The City of Greenville has an ordinance providing in part as follows: "(597)--Section 8. Nature of Insurance Policy Bond or Other Security--Penalty for Violation: That it shall be unlawful for any person, firm or corporation or association of individuals to operate or cause to be operated any jitney bus or taxicab or any other motor vehicle used for transporting passengers for hire over the streets of the City of Greenville, without first taking out and keeping in effect at all times a policy or policies of insurance in some reliable and responsible Insurance Company, acceptable to the Finance Committee of City Council and duly licensed to do business in South Carolina, or provide a surety bond or bonds with individual or corporate sureties as may be approved by the Finance Committee of City Council to cover damages arising in the City of Greenville for injuries to one person in any one accident in the sum of $2500.00 and damages for injury to two or more persons in any one accident in the sum of $5000.00, and for property damages in any one accident in the sum of $500.00. Said insurance or surety bond shall be conditioned for the payment of any final judgment rendered on account of property damage or personal injury as aforesaid caused by any such vehicle or taxicab on the streets of Greenville by such person, firm, corporation or association of individuals."

The complaint in this suit contains two alleged causes of action the first in tort against the Cab Company for personal injuries and property damage resulting from a collision between plaintiff's automobile which he was driving and a taxicab of the defendant at a street intersection, and the second cause of action alleges that the Cab Company was licensed as such by the city upon the requirement that it provide "a policy of liability insurance to insure the payment of any claims due the public for the negligent and careless operation of its taxis," etc., and that the other defendant, the Casualty Company, entered into such a "policy of liability insurance in the sum of $2500.00 to indemnify personal injuries," etc; and a copy of the ordinance is attached to the complaint as an exhibit; and the further allegations are as to institution of suit upon the first cause of action by plaintiff and that the defendant Casualty Company "has agreed by contract liability insurance policy with the City of Greenville *** to pay the same and is therefore due the plaintiff on account of its indemnity bond the sum of $2500.00." The prayer of the complaint is for judgment against both defendants in that amount.

The appeal to this court is by the defendants from an adverse order upon separate demurrers interposed by them for alleged misjoinder of causes of action and they state the questions involved to be two, to wit, asserting that the insurance policy is a contract of indemnity against loss "conditioned for the payment of any final judgment rendered," it is contended that an action ex contractu thereupon cannot be properly joined with an action ex delicto against the Cab Company; and the second question is based upon the specific holding of the Circuit Court that the amendment to paragraph 7 of section 487 of the 1942 Code permits such a joinder, which it challenges.

The Code amendment mentioned is Act No. 287 of 1935, 39 Stat 406, referred to in the decision of Holder v. Haynes, 193 S.C. 176, at page 189, 7 S.E.2d 833, at page 839,

where it was said by the Chief Justice for the court: "We think Judge Sease was right in refusing defendant's motion to require plaintiff to separately state the various causes of action set out in the complaint. On page 406 of the Acts of 1935, the act which amends Section 487 of the Code is ample authority in support of Judge Sease's order refusing the motion. By the specific terms of that Act, in such case, the principal and his surety may be joined in the same action. The exception is overruled."

In that case plaintiff sued the owner of a for-hire truck licensed under the State Motor Transportation Act and joined his insurer. It was found that the driver was operating the truck without the scope of his employment so there was no liability upon the owner or the insurer, but, as stated above, it was held that the joinder was proper, and even that the causes of action in tort and contract, respectively need not be separately stated, as they are in the instant case.

The Act of 1935, now constituting the last paragraph of Section 487 of the Code of 1942, Volume 1, page 340, is as follows: "In all cases where it is now or hereafter provided by law that an indemnity bond or insurance must be given (by a principal for the performance of contract or) as insurance against personal injury founded upon tort, the principal and his surety, whether on bond or insurance, may be joined in the same action and their liability shall be joint and concurrent."

In the above quotation parentheses have been placed about that part of the statute which is irrelevant to the present problem. That portion may...