Sossamon v. Nationwide Mut. Ins. Co.

• Decision Date: 17 February 1964
• Docket Number: No. 18171,18171
• Citation: 243 S.C. 552,135 S.E.2d 87
• Parties: Lee A. SOSSAMON, Respondent, v. NATIONWIDE MUTUAL INSURANCE COMPANY, Appellant. Frank W. SOSSAMON, Jr., Respondent, v. NATIONWIDE MUTUAL INSURANCE COMPANY, Appellant.
• Court: South Carolina Supreme Court

Page 87

135 S.E.2d 87

243 S.C. 552

Lee A. SOSSAMON, Respondent, v.NATIONWIDE MUTUAL INSURANCE COMPANY, Appellant.

Frank W. SOSSAMON, Jr., Respondent, v.NATIONWIDE MUTUAL INSURANCE COMPANY, Appellant.

No. 18171.

Supreme Court of South Carolina.

Feb. 17, 1964.

Butler, Chapman & Barnes, Spartanburg, for appellant.

Jonathan Z. McKown, Gaffney, for respondents.

MOSS, Justice:

There are two separate appeals involved in this case.Nationwide Mutual Insurance Company is the appellant in each case.The respondents are Lee A. Sossamon and Frank W. Sossamon, Jr., husband and wife.Since the questions involved are interrelated with respect to two separate actions, the appeals have been consolidated.

The complaint in the wife's case alleges that she was the owner of a certain station wagon and that while operating same along a street in the City of Gaffney, a school bus of one of the school districts of Cherokee County, collided with the rear of her said station wagon.She further alleges that as a result of said collision she received personal injuries and that her station wagon was almost totally demolished.In her complaint she demands the sum of Seven Thousand & 00/100 ($7,000.00) Dollars as actual damages for her personal injuries and property damage, asserting that such were proximately caused by the negligence, gross negligence and recklessness of the driver of said school bus.The respondent alleges that the appellant was the statutory insurer of school busses under Section 21-840 of the 1962 Code, and is liable for the personal injuries and property damage sustained by her in said collision.

Section 21-840 of the Code requires insurance on all state-owned school busses and provides for two forms of coverage: (1) school children, without regard to fault or negligence, while doing certain acts in connection with school attendance; and (2) where a member of the general public or persons, not making use of the facilities for the purpose of attending school, are injured by the negligent operation of the school bus.Weston v. Nationwide Mutual Ins. Co., 237 S.C. 464, 118 S.E.2d 67.

It appears from the complaint, to which reference has heretofore been made, that Lee A. Sossamon is a member of the general public and she alleges that her personal injuries and property damage were caused by a collision between her station wagon and a school bus.Section 21-840(1)(b), which is applicable to the appellant, provides benefits 'for any person, other than a person riding on a school bus, * * * who suffers personal injuries * * * because of the negligent operation of any such school bus, an amount not exceeding five thousand dollars for any one person * * *'; and section (c) provides for property damage because of the negligent operation of such school bus an amount not exceeding five thousand dollars; and section (3) limits the recovery provided for in paragraphs (b) and (c) of subsection (1) to actual damages.It thus appears that if respondent is entitled to a recovery in this action it must be based on and pursuant to the aforesaid sections of the Code.

The appellant moved to strike from the complaint all allegations therein of 'gross negligence and recklessness'.It further moved to strike the words 'Seven Thousand ($7,000.00) Dollars' from the complaint upon the ground that such allegations are irrelevant and improper and not in conformity with the aforesaid statute, under which the appellant issued its policy of insurance.The appellant also moved to require the complaint to be made more definite and certain by alleging (a) the damages she claims to be for personal injuries; (b) the amount of her property damage; and (c) to allege whether she has paid or incurred any medical expense, and if so, the amount thereof.All of the aforesaid motions were denied by the Trial Judge and error in so holding is asserted.

In the case of Coker v. Nationwide Mut. Ins. Co., S.C., 133 S.E.2d 122, we held that allegations in a complaint that a school bus had been operated in a reckless, willful and wanton manner were irrelevant in an action under statute authorizing recovery of only actual damages due to negligent operation of a school bus.Considering only the complaint and the motion to strike, we find that the Trial Judge was in error in refusing to grant to motion of the appellant to strike from the complaint all allegations therein of 'gross negligence and recklessness'.In the event, however, of a plea of contributory negligence on the part of the appellant, the respondent would have a right to show that the appellant was guilty of reckless, willful and wanton conduct so as to overcome the plea of contributory negligence.

It is provided in Section 10-606 of the Code that when the allegations of a pleading are so indefinite or uncertain that the precise nature of the charge or defense is not apparent, the Court may require the pleading to be made more definite and certain by amendment.This section implies discretion which will not be disturbed on appeal unless it is shown that the pleading does not apprise the adversary of the charge which he will have to answer.In other words, the appellant must show prejudice to his position in order to entitle him to reversal.Ridgeland Box Mfg. Co. v. Sinclair Refining Co., 216 S.C. 20, 56 S.E.2d 585.Where the elements of general damages that the plaintiff claims to have suffered are definitely enumerated in the complaint, it is not necessary that the amount claimed for each of such elements be stated.Ellen v. King, 227 S.C. 481, 88 S.E.2d 598.A complaint may lack fullness of detail and yet not be subject to a motion to make more definite and certain.Oxman v. Profitt, 241 S.C. 28, 126 S.E.2d 852.The Trial Judge has construed the complaint in this action as demanding actual damages in the amount of $5,000.00 for personal injuries and $2,000.00 for property damage.We think this a proper construction of the damages demanded in the complaint in view of the limitation placed on recoverable damages under Section 21-840 of the Code.Certainly the Judge who tries this case can properly instruct the jury as to the damages recoverable under the allegations of the complaint and can limit such in accordance with the statute under which this action was brought.We think that in view of the allegations of the complaint, and the construction placed thereon by the lower Court, there was no prejudicial error in refusing the motion of the appellant to make the complaint more definite and certain by alleging the amount of damages claimed for personal injuries and the amount for property damage.

The next question for determination is whether the Trial Judge erred in refusing to require the respondent to allege whether she has paid or incurred any medical expense and if so the amount thereof.

The general rule is that in personal injury actions the plaintiff may recover for the necessary and reasonable expense caused by the injury such as amounts necessarily paid for medicine, medical attendance, hospital expense and care and nursing.Brasington v. South Bound Ry. Co., 62 S.C. 325, 40 S.E. 665;Hart v. Railroad Co., 33 S.C. 427, 12 S.E. 9, 10 L.R.A. 794.Ordinarily, a husband is bound to furnish the necessities of life to his wife, and among such necessities are necessary medical service and hospitalization.The husband's right to recover from a tort-feasor for such items of expense is based on his obligation to furnish them.However, where a wife sues for personal injuries and has incurred and paid for medical and hospital expense, for which the husband is not liable, she can recover therefor and such expenses are proper elements of her damage.Southeastern Air Service v. Crowell, 88 Ga.App. 820, 78 S.E.2d 103;United Dentists v. Bryan, 158 Va. 880, 164 S.E. 554.Medical expense of wife paid by husband may not be recovered by her.Vernon v. Atlantic Coast Line Ry. Co., 218 S.C. 402, 63 S.E.2d 53.

We have held that a general allegation of damages will let in evidence and warrant a recovery of all such damages as naturally, logically and necessarily result from an unlawful act.Special damages, which do not necessarily result, must be alleged.The object of the requirement that a plaintiff should set forth any special damage is to avoid surprise to the other party.Crozier v. Charleston & W. C. Ry. Co., 222 S.C. 121, 71 S.E.2d 800.Applying the foregoing rule to the wife's action, the allegation of her injuries and damage is sufficient to warrant a recovery for necessary medical expenses, if such were, in fact, paid for or incurred by her and for which the husband is not liable.We think there was no error on the part of the Trial Judge in refusing to require the wife to make her complaint more definite and certain by alleging whether she has paid or incurred by doctor or hospital bills and if so the amount thereof.

The husband's action is for damages for medical expenses incurred for his wife's care and treatment because of the personal injuries suffered by her and for loss of her services and consortium.He alleges that his wife's injuries were proximately caused by the negligence, gross negligence and recklessness of a school bus driver in the operation of a school bus which collided with the rear of a station wagon being operated by his wife.The complaint alleges that the appellant was a statutory insurer of school busses under Section 21-840 of the 1962 Code, and is liable to him for the loss of consortium of his wife and the medical expenses incurred by him in the...