Daniel v. Burdette

• Decision Date: 13 August 1938
• Docket Number: No. 2716.,2716.
• Citation: 24 F. Supp. 218
• Court: U.S. District Court — District of South Carolina
• Parties: DANIEL v. BURDETTE et al.

24 F. Supp. 218

DANIEL v.BURDETTE et al.

No. 2716.

District Court, W. D. South Carolina.

August 13, 1938.

Dobson & Dobson, of Gaffney, S. C., for plaintiff.

Wyche & Burgess, of Greenville, S. C., for defendant Lloyds America.

WYCHE, District Judge.

Plaintiff brought this action against the defendants in the Court of Common Pleas for Cherokee County, South Carolina, for damages for the alleged wrongful death of her intestate husband.The defendant, Lloyds America, by its petition removed the suit to this court on the ground of separable controversy.Within due time plaintiff filed her traverse to the petition for removal in which it is claimed substantially that there are allegations of joint acts of negligence and wilfulness on the part of the defendants so as not to present a separable controversy, and that by reason of Section 487, Code of Laws of South Carolina, 1932, as amended byActNo. 287, 39Statutes, 406, defendants may be joined in the same action and their liability shall be joint and concurrent.The matter is now before me on plaintiff's motion to remand upon the grounds set out in her traverse and upon the further ground, "That the defendants are sued for personal injury, founded upon tort, and both defendants are liable, either as principal or surety."

Plaintiff's intestate was killed while driving a Ford truck which collided with a tractor and trailer owned by the defendantH. P. Burdette, and parked by the defendantSam West on the highway leading from Gaffney to Spartanburg.His death is alleged to have been caused by the acts of negligence and wilfulness of the defendantsH. P. Burdette and Sam West, and the defendant tractor and trailer, in the particulars named.The complaint further alleges that, as required by sections 8507 to 8524,1932 South Carolina Code, the defendant, Lloyds America, filed with the proper officer of the State of South Carolina its liability and property damage insurance and surety bond on the basis of which the defendantH. P. Burdette, obtained a certificate and license from the South Carolina Public Service Commission to operate as a carrier of persons and property for hire; that the bond was conditioned to insure and indemnify passengers and the public receiving personal injuries or death by reason of any act of negligence of the said H. P. Burdette, his agents or servants, in driving said tractor and trailer, to the extent of Five Thousand Dollars ($5,000), and that by reason of such contract, the defendants, Lloyds America and H. P. Burdette, are jointly liable to plaintiff to the extent of Five Thousand Dollars ($5,000).Plaintiff seeks judgment against the defendant in the sum of Fifty Thousand Dollars ($50,000) actual damages.

The Legislature of South Carolina, obviously for the purpose of preventing the removal of causes of action like the instant case to the federal court under the removal statute and the decisions construing the same, amended section 487, Code of Laws of South Carolina, 1932, by providing as follows: "In all cases where it is now or hereafter provided by law that * * * insurance must be given by a principal * * * as insurance against personal injury founded upon tort, the principal and his surety, * * * may be joined in the same action and their liability shall be joint and concurrent."Acts South Carolina, 1935, 39 Statutes, 406.

Prior to the enactment of this amendmentthe Supreme Court of South Carolina had already decided that the joinder of defendants in such cases was permissible and proper where the damages sought were for negligence only, and not in excess of the policy limits.Piper v. American Fidelity & Casualty Co., 1930, 157 S.C. 106, 154 S.E. 106;Benn v. Camel City Coach Company, 162 S.C. 44, 160 S.E. 135;Thompson v. Bass, 167 S.C. 345, 166 S.E. 346.It had, however, been decided by the federal courts that the action against the insured carrier and his participating agents was an action sounding in tort, while that against the insurance company was an action in contract, and that while these causes of action may be joined in one complaint they were separate and distinct and proceeded along different lines, and, notwithstanding, that the issues may be joined in one action the controversy as to the insurance company was separable and entitled it to removal to the federal court.28 U. S.C.A. § 71;Mecke v. Valleytown Mineral Company, 4 Cir., 93 F. 697;Manufacturers' Commercial Company v. Brown Alaska Company, C.C., 148 F. 308;Stimson v. United Wrapping Machine Company, C.C., 156 F. 298;Murray v. Southern Bell Tel. & Tel. Company, D.C., 210 F. 925;James Ferry, Inc., v. John R. Wiggins Co., D.C., 287 F. 421;Branchville Motor Company v. American Surety Co., D.C., 27 F.2d 631;Stewart v. Nebraska Tire & Rubber Company, 8 Cir., 39 F.2d 309, certiorari denied282 U.S. 840, 51 S.Ct. 21, 75 L.Ed. 746; Shaw v. Dunlap et al., unreported opinion of Judge H. H. Watkins(D.C.S.C.) filed April 9, 1933.

The theory on which joinder was said to be permissible in such cases, as announced in the Piper, Benn and Thompson Cases, supra, was that under the applicable code provisions the liability arose "out of the same transaction" and "affected * * * all the parties to the action"(154 S.E. pages 109, 110.)It was expressly held in that line of cases, and the statute so declared, that in order for such causes of action to be joined it "must affect all the parties to the action".In the Piper Case, supra, the Supreme Court of South Carolina sustained a demurrer to the complaint because in that caseplaintiff sought to recover a judgment against the insurance carrier for $25,000 damages, and its policy was limited to only $5000.The State Supreme Court, in that case, said:

"It seems clear that, as to so much of the plaintiff's cause of action as was based upon the negligence of the bus company, the plaintiff is necessarily limited to the amount of the policy, and the excess up to the amount sued for $25,000 does not at all `affect' the insurance company.

"It seems equally clear that the insurance company under the statute and under...