Hatchett v. Nationwide Mut. Ins. Co.

• Decision Date: 15 July 1964
• Docket Number: No. 18240,18240
• Citation: 137 S.E.2d 608,244 S.C. 425
• Parties: Larry L. HATCHETT, Respondent, v. NATIONWIDE MUTUAL INSURANCE COMPANY, Appellant.
• Court: South Carolina Supreme Court

Page 608

137 S.E.2d 608

244 S.C. 425

Larry L. HATCHETT, Respondent, v. NATIONWIDE MUTUAL INSURANCE COMPANY, Appellant.

No. 18240.

Supreme Court of South Carolina.

July 15, 1964.

Leatherwood, Walker, Todd & Mann, Greenville, for appellant.

O. L. Long, Laurens, for respondent.

TAYLOR, Chief Justice.

Plaintiff, Larry L. Hatchett, instituted this action in December, 1962, to recover from defendant, Nationwide Mutual Insurance Company, the amount of a default judgment obtained against one Kenneth Stone, an uninsured motorist, as the result of an automobile accident in which plaintiff received personal injuries.

Trial was held in the Court of Common Pleas of Laurens County in May, 1963, before the Honorable Steve C. Griffith, and at the close of plaintiff's testimony both parties moved for a directed verdict. The jury was discharged and Judge Griffith, in his Order of August 10, 1963, denied defendant's motion for directed verdict but granted plaintiff's motion and directed that judgment be entered accordingly. This appeal is taken from that Order.

Plaintiff's personal Chevrolet automobile was insured with defendant company, the policy containing an endorsement entitled 'Family Protection Against Uninsured Motorists.' On May 4, 1962, while said policy was in full force and effect, plaintiff, while driving another automobile owned by a partnership of which he was a partner, was involved in an automobile collision with Kenneth Stone, an uninsured motorist.

On August 8, 1962, plaintiff instituted an action against Stone in the Court of Common Pleas for Laurens County; service was made upon Stone on August 16, 1962. On September 24, 1962, plaintiff notified defendant of the accident and of the fact suit had been instituted, at the same time forwarded a copy of the summons and complaint with an accompanying letter which stated that Stone was in default but that plaintiff would have no objection if the insurance company wished to intervene in its own name. Plaintiff was advised by letter of September 27, 1962, that the insurance company was assigning the matter to a field claims man for investigation and to the company's counsel for defense. During conversations between the lawyers for the respective parties, plaintiff's attorney refused to waive the default and permit an answer to be filed in behalf of Stone. Subsequently, plaintiff's attorney was notified that the file had been withdrawn from the insurance company's attorneys, and that they were no longer interested in the matter.

The case against the uninsured motorist was tried October 30, 1962, in the Court of Common Pleas for Laurens County before Judge William L. Rhodes. Stone, not having answered, offered no defense. After hearing evidence of damages and liability, the jury returned a verdict in favor of plaintiff against Stone in the sum of $10,000.00. Execution was issued and returned nulla bona on November 14, 1962. Plaintiff notified defendant Company of the judgment obtained and demanded payment thereof, which was refused. This suit was instituted on December 7, 1962, for the sum of $9,915.00, plaintiff having voluntarily reduced his claim to that amount.

By way of answer to the complaint, defendant, in addition to a general denial, denied liability on the grounds that plaintiff had failed to comply with the terms of the policy and that full compliance is a condition precedent to any action against defendant; and further that plaintiff failed to comply with the following provisions of the 'Uninsured Motorist Endorsement':

'8. Action Against Company. No action shall lie against the Company unless, as a condition precedent thereto, the Insured or his legal representative has fully complied with all the terms of this endorsement.

'3. Proof of Claim. As soon as practicable, the Insured or other person making claim shall give to the Company written proof of claim, under oath if required, including full particulars of the nature and extent of the injuries, treatment, and other details entering into the determination of the amount payable hereunder. * * *

'4. Notice of Legal Action. If, before the Company makes payment of loss hereunder, the Insured or his legal representative shall institute any legal action for bodily injury or property damage against any person or organization legally responsible for the use of an automobile involved in the accident, a copy of the summons and complaint or other process served in connection with such legal action shall be forwarded immediately to the Company by the Insured or his legal representative.'

By way of further defense, it is alleged that plaintiff failed to give written notice of the accident as soon as practicable, failed to assist defendant in all respects, and that notice was not given until on or after September 24, 1962.

Plaintiff filed an amended reply in which he admitted that the conditions precedent referred to by defendant were contained in the 'Uninsured Motorist Endorsement' but alleged that such conditions are invalid and of no force and effect in that they contravene the statute relating to uninsured motorists' liability. It is further alleged that all conditions precedent have been complied with and that, in addition, defendant has waived compliance with said conditions.

The trial Judge held the Act applicable and that it renders void any provision of the policy or any endorsement thereto that requires more of the insured than to establish liability of the uninsured. Particular stress was placed on that portion of Section 46-750.18 of the Code of Laws of South Carolina, 1962, which reads: '* * * nor may anything be required of the insured except the establishment of legal liability, * * *' Our Uninsured Motorist Law, prior to the 1963 Amendment, is contained in Section 46-750.11 and Sections 46-750.14 through 46-750.18 of the Code of Laws of South Carolina, 1962. Section 46-750.14 provides that no policy or contract of insurance as described in Section 46-750.13 shall be issued or delivered 'unless it contains an endorsement or provisions undertaking to pay the insured all sums which he shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle, * * *. * * * Recovery under the endorsement or provisions shall be subject to the conditions set forth in §§ 46-750.15 to 46-750.18.'

Sections 46-750.15 and 46-750.16 relate to notice to the Highway Department of the accident in case of unknown drivers and the procedure to be pursued against them as 'John Doe' defendants. Section 46-750.17 relates to subrogation rights.

It is provided in Section 46-750.18 as follows:

'No endorsement or provisions required by § 46-750.14 shall contain any provision requiring arbitration of any claim arising under any such endorsement or provisions, nor may anything be required of the insured except the establishment of legal liability, nor shall the insured be restricted or prevented in any manner from employing legal counsel or instituting legal proceedings.'

Although the policy was voluntarily procured by plaintiff, under the provisions of Section 46-750.14 it is mandatory that all bodily injury liability insurance and property damage liability insurance issued or delivered in this State contain an endorsement or provisions to comply with the Uninsured Motorist Act. The trial Judge correctly held that the provisions of the Uninsured Motorist Act apply to this action.

Plaintiff would have us place a construction on the Act to the effect that the conditions relied upon by defendant as being conditions precedent are rendered void by the Act. 'It should be kept in mind that the legislative intent must prevail if it can be reasonably discovered in the language used, which must be construed in the light of the intended purpose of the Statutes. One of the primary rules in a construction of a statute is that the words used therein should be taken in their ordinary and popular significance, unless there is something in the statute requiring a different interpretation. Brewer v. Brewer, 242 S.C. 9, 129 S.E.2d 736.' Laird v. Nationwide Ins. Co., 243 S.C. 388, 134 S.E.2d 206.

'It is perhaps unnecessary to say that courts have no legislative powers, and in the interpretation and construction of statutes their sole function is to determine, and within the constitutional limits of the legislative power to give effect to, the intention of the Legislature. They cannot read into a statute something that is not within the manifest intention of the Legislature as gathered from the statute itself. To depart from the meaning expressed by the words is to alter the statute, to...