Croft v. Hall
| Decision Date | 19 March 1946 |
| Docket Number | 15820. |
| Parties | CROFT v. HALL et al. |
| Court | South Carolina Supreme Court |
N. A. Turner and Edward A. Harter, Jr., both of Columbia, and Julian S. Wolfe and P. L. Felder, Jr., both of Orangeburg, for appellants.
A. J. Hydrick, of Orangeburg, for respondent.
The city of Orangeburg has an ordinance whereby operators of taxicabs are required to procure and file with the city clerk liability insurance policies in stated amounts and with stipulated conditions, for personal injury and property damage. The appellants, Hall, are alleged to have been so engaged, with the other appellant as their insurer.
Dewey Whetstone was a driver for them and about midnight on December 27, 1943, undertook to take two passengers to their respective homes in the country and he carried his wife, Mrs. Ruby C. Whetstone, as a guest. It was a rainy and foggy night and after he turned off a main highway several miles from the city he decided, on account of the unfavorable driving conditions, to return to the city before reaching his destinations. Accordingly, he turned around and when he reached the intersection of the highways he drove across the road junction, over a ditch and into an embankment beyond. The car was upset and the occupants suffered various injuries. Mrs. Whetstone was extricated from the wreckage and laid upon the road until passersby came and took her to the hospital in Orangeburg where she died a little more than a day later.
The action is by the administratrix of her estate, brought under the survival statute, Sec. 419 of the Code of 1942. It was alleged that the deceased was a guest in the taxicab and was injured by acts of the driver which were 'heedless and in reckless disregard of the rights of plaintiff's intestate' in stated particulars. Further allegation of the complaint is quoted as follows: '* * * inflicting upon her head, facial and bodily injuries from which she suffered continuous and violent pain and anguish'; and also the following: 'That the injury to the person, the pain and anguish sustained and suffered by the said Ruby C Whetstone were proximately caused', etc. The concluding paragraph of the complaint is as follows: 'That the plaintiff brings this action for injury to the person, pain and anguish suffered by the said Ruby C. Whetstone in her lifetime for the benefit of her estate.'
The appellant insurer moved for the dismissal of it as a defendant and also demurred upon the ground of improper joinder because its liability was contractual and respondent was suing upon tort. The motion and demurrer were overruled from which there is an appeal which is restricted to the point that the insurance was required by a city ordinance and that the alleged tort occurred without the geographical limits of the city. (This position would not be available to the insurer-appellant but for the acquiescence of respondent as will be later explained.)
The defendants Hall and their insurer answered separately and the case proceeded to trial. At the conclusion of the evidence the trial judge directed a verdict for the defendants upon the ground that the only reasonable inference of which it was susceptible was that the deceased was unconscious from the time of the accident until death and, therefore, suffered no conscious pain, to which element of damages plaintiff was limited. But on motion for new trial the court reversed itself and held that there was sufficient in the testimony of the mother of the deceased to take that issue to the jury. The exceptions challenge the correctness of this conclusion.
Respondent has submitted an additional ground upon which she contends that the order granting a new trial should be sustained. It is to the effect that conscious pain was only one of the elements of damage alleged in the complaint and that in addition there were allegations and evidence of bodily injuries which resulted in physical disfigurement. But we need not consider whether the latter is a recoverable element of damages in the case and, if so, whether it was adequately alleged in the complaint, for we conclude that the lower court did not err when it granted a new trial upon the ground stated.
The first issue which we shall discuss is not really raised on the record, as has been mentioned. That the accident happened outside of the city limits was not made a ground of the motion to dismiss, the demurrer to the complaint or the motions for nonsuit and directed verdict in behalf of the insurer. However, this is expressly waived by respondent in her brief and she joins appellants in arguing the point, which will be decided. This course is convenient for the proposition is alleged in the answers as a defense and the case will have to be tried again.
The appellant-insurer recognizes the authority of Bryant v. Blue Bird Cab Co., 202 S.C. 456, 25 S.E.2d 489, 490, but attempts to distinguish it upon the fact that there the alleged tort was committed within the city of Greenville where the cab company was licensed to do business and insured against liability in compliance with an ordinance, whereas here the injury was inflicted outside Orangeburg. Incidentally, question of the authority of the city council to enact the ordinance and that it is a 'law' within the terms of Sec. 487 of the Code of 1942 are not contested. The latter statute provides, insofar as now pertinent, 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.'
The Bryant-Blue Bird case, above, and this are different in this respect. The Greenville ordinance, which is set out in the opinion, required security of licensed taxicabs for payment of damages inflicted 'on the streets' and 'arising in the city.' These provisions are not in the Orangeburg ordinance. It requires (Sec. 25) 'a liability insurance policy' for licensing for operation on the streets of the city (Sec. 2) but does not purport to restrict the applicability of the insurance to the area of the city. On the contrary, the ordinance clearly contemplates the operation of the taxicabs licensed under it from points within the city to points without. Ind...
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