Massey v. War Emergency Co-op. Ass'n

• Decision Date: 09 October 1946
• Docket Number: 15874.
• Citation: Massey v. War Emergency Co-op. Ass'n, 39 S.E.2d 907, 209 S.C. 292 (S.C. 1946)
• Parties: MASSEY et al. v. WAR EMERGENCY CO-OPERATIVE ASS'N et al.
• Court: South Carolina Supreme Court

39 S.E.2d 907

209 S.C. 292

MASSEY et al. v. WAR EMERGENCY CO-OPERATIVE ASS'N et al.

No. 15874.

Supreme Court of South Carolina

October 9, 1946

Appeal from Common Pleas Court, of Spartanburg County; T. S. Sease Judge.

Action by Stella B. Massey, as administratrix of the estate of Oscar B. Massey, deceased, and another against the War Emergency Co-operative Association and another to recover damages for deceased's death.From an order granting in part defendants' motions to strike certain portions of the complaint and denying them in part, denying defendants' motions to require plaintiffs to state separately several causes of action set forth in the complaint, and overruling demurrers to the complaint, plaintiffs and defendants appeal.

The federal Motor Carrier Act, requiring interstate motor carriers to comply with Interstate Commerce Commission's rules as to filing and approval of surety bonds, insurance policies, etc., conditioned to pay any final judgments recovered against such carriers for injuries or deaths resulting from such carriers' negligent operation or use of motor vehicles, involves no obligation directly to public until after final judgment against carrier, so that carrier's liability insurer may not be joined as defendant in death action under such act.Interstate Commerce Act, § 215, 49 U.S.C.A. § 315.

Order of Judge Sease follows:

This is a death action under Lord Campbell's Act.The complaint alleges that on June 23, 1944, Oscar B. Massey the intestate of the personal plaintiff, was killed in a collision between his employer's truck and a truck operated by War Emergency Co-Operative Association, a motor carrier holding certificate under chapter 162 in the 1942 South Carolina Code and qualified as an interstate carrier under Federal Statute.

Hardware Mutual Casualty Company carried workmen's compensation insurance on Massey and has accepted the death award and joins as plaintiff pursuant to procedure sanctioned by Fuller v. Southern Electric Service Co.,200 S.C 246, 20 S.E.2d 707.

American Fidelity and Casualty Company has been made a defendant under allegations that it is surety upon two statutory policies of liability insurance carried by its co-defendant, one pursuant to the requirements of state statute, and the other pursuant to the Motor Carrier Act of the United States of 1935 and conditioned as required in said Act.

The defendants appeared and demurred separately.The insurer defendant demurred upon the grounds of insufficiency of fact.Both defendants demurred in substantially the same terms upon the ground of misjoinder of causes.

The insurer defendant also separately moved to strike 'all allegations, references or prayers with reference to any insurance issued by the Defendant, American Fidelity &amp Casualty Company, Inc., or to the DefendantWar Emergency Co-Operative Association, beyond a limit of $5,000.00, or with respect to any alleged liability of American Fidelity & Casualty Company, Inc., beyond the $5,000.00.'

The defendants also jointly served notice that the Court would be asked to take judicial notice of certain rules, regulations and orders of the Interstate Commerce Commission'to the extent that the same may be proper and necessary.'

The foregoing matters were heard by me at my Chambers at Spartanburg on December 2, 1945.

Plaintiffs stated at the hearing that they did not object to the motion to strike from paragraph 3 the words 'and $10,000.00 payable in case of injury to or death of two persons in a single collision' and the words '$100,000.00 payable in case of injury to or death of two persons in a single collision.'The motions to strike the quoted matter is therefore granted.

The motion is granted to strike paragraph 2.

The motion is granted to strike from paragraph 6 the words 'owned by one Jack Kerney and,' the words 'his agents and servants under the name of,' and the words 'as lessee as aforesaid.'

The motion is granted to strike from paragraph 7(e) the words, 'or to ameliorate the effects of collision resulting as a consequence.'I think the foregoing matter is irrelevant and redundant; but the remaining matter sought to be struck is relevant and proper and the motions to strike are overruled except as granted above.

Under Holder v. Haynes,193 S.C. 176, 77 S.E.2d 833andBryant v. Blue Bird Cab Co.,202 S.C. 456, 25 S.E.2d 489, a plaintiff cannot be required to separately state his cause in tort against the carrier and his cause in contract against the insurer.

I do not think that the complaint alleges any other cause of which separate statement may be required.The motions to require separate statement are overruled.

The Insurer's demurrer concedes under subdivision (b) that the complaint states a cause of action against the insurer for the statutory insurance.The demurrer on this ground must therefore be overruled under Coral Gables v. Palmetto Brick Co.,183 S.C. 478, 191 S.E. 337.

Under Santee Mills v. Query,122 S.C. 158, 115 S.E. 202, andBrownlee v. Charleston Motor Express Co., Inc.,189 S.C. 204, 200 S.E. 819, I am taking judicial notice of the rules, regulations and orders of the Interstate Commerce Commission so far as they'have the same effect as law.'

Plaintiffs have contended that demurrer is not the proper method of pleading misjoinder in this case, but I hold to the contrary.

However, I do not think that the actions contemplated in the complaint are such as cannot be joined under South Carolina statutes.

I hold that the complaint states the elements of only three causes of action, viz: (1) a cause in tort against the carrier, (2) a cause in contract against the insurer under State statute and (3) a cause in contract against the insurer under Federal statute.

It is well established that the tort and the action in contract under State statute may be joined.Piper v. American Fidelity & Guaranty Co., 157 S.C. 106, 154 S.E. 106, andBenn v. Camel City Coach Co.,162 S.C. 44, 160 S.E. 135.

Attorneys for Defendants have argued earnestly that because the Federal statute requires insurance conditioned to pay 'any final judgment recovered against such motor carrier,' an injured party can have no cause of action against the insurer until he had first recovered a final judgment against the carrier.

But the contention was denied in Bryant v. Blue Bird Cab Co.,202 S.C. 456, 25 S.E.2d 489, where the Court had under consideration an ordinance of the City of Greenville requiring a taxi cab operator to file insurance 'conditioned for the payment of any final judgment' against him.It was said that the insurance 'is palpably for the protection of passengers and the public' and that it 'is not an indemnity of the carrier from loss but constitutes an original and direct liability from the insurer to the damaged passenger or other member of the public.'

The case pointed out also that similar effect has been given to bonds filed by state highway patrolmen under South Carolina statute requiring that they be conditioned to 'pay any judgment recovered' against the patrolmen, citing Small v. National Surety Corporation,199 S.C. 392, 19 S.E.2d 658, 660.

In the absence for federal authority holding to the contrary, I think it must be considered that the federal statute requires the insurance for the protection of the public and not for the protection of the carrier, and that joinder of the insurer is proper, especially in view of the recent holding in the case of Daniel, Adm'r v. Tower Trucking Co.,203 S.C. 119, 26 S.E.2d 406, 407, where the Court said: '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.* * * This general right of joinder is sustained by the weight of authority elsewhers.'(Emphasis added.)

Defendants' counsel have also argued that since the rules of the Interstate Commerce Commission require the filing of insurance in the 'minimum amount' of $5,000, any excess over that amount of insurance carried by War Emergency Co-Operative Association, must be considered as private insurance and not compulsory insurance.

But the requirement generally of a minimum amount does not necessarily infer that a larger amount may not be required in a particular case.Here the complaint alleges that 'pursuant to the requirements of the Motor Carrier Act of the United States of 1935, said War Emergency Co-Operative Association also carried at the times herein alleged further liability insurance conditioned as required in said Act with limits of $50,000.00 payable in case of injury or death of one person in a single collision.'

I think that under the rule of liberal construction of pleadings, these allegations must be taken as showing that more than the minimum amount of insurance was required to be filed by the carrier.

Defendants also argued that there is no basis for holding that the $5,000 policy filed under State statute is cumulative to the $50,000 policy filed under Federal statute.But no reason appears why the statutes must be construed to intend that the coverages should not be separate coverages, therefore totaling $55,000.Presumably separate premiums were paid for insurance aggregating that amount.The intent of the law is not altered because the same insurer supplied both coverages.

I hold therefore that there has been no misjoinder of causes in the complaint, and the demurrers upon that ground are overruled.

It is therefore, ordered that there be stricken from the complaint the following: (1) all of paragraph 2;(2) from paragraph 3 the words 'and $10,000.00 payable in case of injury to or death of two persons in a single collision,' and the words 'and $100,000.00 payable...