Daniel v. Tower Trucking Co.

• Decision Date: 02 July 1943
• Docket Number: 15555.
• Citation: 26 S.E.2d 406,203 S.C. 119
• Parties: DANIEL v. TOWER TRUCKING CO., Inc., et al. (two cases).
• Court: South Carolina Supreme Court

26 S.E.2d 406

203 S.C. 119

DANIEL v. TOWER TRUCKING CO., Inc., et al.(two cases).

No. 15555.

Supreme Court of South Carolina

July 2, 1943

Wolfe & Forte and R. A. Dobson, all of Gaffney, for appellant.

Hall & Saint-Amand, of Gaffney, for respondents.

STUKES Justice.

The actions in these two cases arose out of a collision between an automobile occupied by Thomas Dixon Daniel and his wife Mrs. Mitchell Goforth Daniel, and a truck owned and operated by the Tower Trucking Company, Inc.As a result of the accident, which occurred at the intersection of two streets in the city of Gaffney, both occupants of the automobile were instantly killed.

Separate suits were instituted under Lord Campbell's Act(Sections 411and412,1942 Code) by W. J. Daniel, the administrator of the estates of Mr. and Mrs. Daniel, for the recovery of actual damages, based upon the alleged negligence of the defendant, trucking company.Joint demurrers to the complaints, filed by the trucking company and its codefendant and insurance carrier, American Fidelity and Casualty Company, were sustained by the Circuit Court, upon the ground of misjoinder of causes of action and of parties, with leave to amend.

As the two cases are essentially identical, and the issues raised by the appeal are common to both, the parties agreed to a consolidation for the hearing in this Court.Although we shall discuss the first case only, our judgment will be determinative of both cases.

The offending truck was operated as a common carrier for hire and it is alleged that the Tower Trucking Company, Inc., in compliance with the requirements of Section 8511 of the Code filed with the Public Service Commission a liability insurance policy executed by the Casualty Company as surety, which insured the public against damages in the sum of $5,000 as to any one person arising from personal injury or death by reason of any act of negligence on the part of the Trucking Company, its agents or servants, in the operation of its trucks on the highways of the State.

The plaintiff prayed for judgment, "in aggregate against the defendants, Tower Trucking Company, Inc., and the American Fidelity and Casualty Company, the insurance carrier, for actual damages in the sum of Twenty-five Thousand ($25,000.00) Dollars."But it was expressly alleged, in effect, in the complaint, as set forth above, that the extent of liability of the Casualty Company is $5,000 for the death of any one person.Thus no judgment may be rendered in this case against that defendant in excess of the stated amount.

The lower Court, sustaining the demurrer, held that it was improper to join as a partydefendant in an action for personal injury or death based on negligence, the surety to the alleged tort feasor, where the damages claimed against the tort feasor and its surety are different in amount, here the former greatly exceeding the latter.

The right of joinder of insurer and insured under policies of compulsory liability insurance in actions by third persons based upon negligence of the insured, is settled in this State.Piper v. American Fidelity & Casualty Co., 157 S.C. 106, 154 S.E. 106;Benn v. Camel City Coach Co.,162 S.C. 44, 160 S.E. 135;Thompson v. Bass,167 S.C. 345, 166 S.E. 346;Bryant v. Blue Bird Cab Co. et al., S.C.,25 S.E.2d 489.This general right of joinder is sustained by the weight of authority elsewhere.SeeAnnotation, 96 A.L.R. 356.

In the Piper case, apparently the first upon the subject, the insured and insurer were joined as defendants.The plaintiff sued for the recovery of actual and punitive damages in the aggregate amount of $25,000, based upon the negligence and willfulness of the bus company.On the contract side of his case, he alleged a cause of action upon a policy of insurance to the extent of the amount of the policy, to wit: $5,000.Careful consideration of the leading opinion discloses that demurrer was sustained mainly upon the ground of the joinder of the insurer in the suit against the carrier for punitive damages, as well as actual, in other words, on the "jumbled" cause of action stated, for damages for negligence and also for willfulness.Indeed, the other ground referred to, that the damages alleged exceeded the amount of the insurance, was not included in the grounds of demurrer stated in the opinion or considered by the Circuit Court, whose order was quoted in the opinion.

Similarly the latter question, urged by respondents and relied upon by the Court below, was not an issue in Benn v. Camel City...