South Carolina Ins. Co. v. James C. Greene and Co.

• Decision Date: 08 September 1986
• Docket Number: No. 0798,0798
• Citation: South Carolina Ins. Co. v. James C. Greene and Co., 290 S.C. 171, 348 S.E.2d 617 (S.C. App. 1986)
• Court: South Carolina Court of Appeals
• Parties: SOUTH CAROLINA INSURANCE COMPANY, Respondent, v. JAMES C. GREENE AND COMPANY, a corporation, and Blane H. Lawson, doing business as Jim Robertson Insurance Agency, Appellants.

Page 617

348 S.E.2d 617

290 S.C. 171

SOUTH CAROLINA INSURANCE COMPANY, Respondent, v.JAMES C. GREENE AND COMPANY, a corporation, and Blane H Lawson, doing business as Jim Robertson Insurance Agency, Appellants.

No. 0798.

Court of Appeals of South Carolina.

Submitted March 19, 1986.

Decided Sept. 8, 1986.

Robert W. Brown of Weinberg, Brown & MacDougall, Sumter, for appellantJames C. Greene and Co.

Herbert W. Hamilton of Whaley, McCutchen, Blanton & Rhodes, Columbia, for appellantBlane H. Lawson.

Alva M. Lumpkin and B. Michael Brackett of Lumpkin & Sherrill, Columbia, for respondent.

BELL, Judge:

South Carolina Insurance Company seeks indemnity from its agents, James C. Greene and Company and Blane H. Lawson, for alleged negligence which caused it to pay a default judgment against its insured, Patricia Manning, in excess of policy limits.Greene and Lawson each raise the defense of imputed contributory negligence as a bar to the Insurance Company's recovery against them.The circuit court granted the Insurance Company's motion to strike the defense of imputed contributory negligence.Greene and Lawson appeal.We affirm.

Lawson, doing business as Jim Robertson Insurance Agency, was the initiating agency for an automobile liability insurance policy issued by the Insurance Company to one Karen Bruce.The policy provided third party liability coverage of up to $15,000 for bodily injury for any one person.It also provided that the Insurance Company had the right and the duty to defend the insured against third party claims and the right to negotiate and settle any claim.

The covered automobile, while being operated with Bruce's permission by her mother, Patricia Manning, was involved in an accident in which one Edward Coker received personal injuries.Greene undertook on behalf of the Insurance Company to investigate the accident and to adjust Coker's claim.According to the allegations of the complaint, Coker's attorney offered in writing to settle the claim for $15,000.The offer allegedly specified it would be withdrawn if not accepted within ten days.Greene allegedly failed to transmit the offer to the Insurance Company, thus depriving it of the opportunity to negotiate and settle Coker's claim within the policy limits.

Thereafter, Coker commenced suit against Patricia Manning.Manning caused the suit papers to be delivered to Lawson in a timely manner as required by the insurance policy.Lawson allegedly forwarded them to Greene.However, no answer was filed.Coker thereupon obtained a default judgment against Manning for $150,000.The complaint alleges the suit went into default as a result of the negligence of Lawson and Greene in failing to forward the suit papers to the Insurance Company.After it failed in an attempt to have the default set aside, the Insurance Company settled the judgment for $130,000, which it paid to Coker.The Insurance Company then instituted this action against Greene and Lawson seeking to be indemnified for the $130,000.

Both Greene and Lawson answered the complaint raising, among other defenses, contributory negligence.Each alleged that the other was the agent of the Insurance Company and that the other's alleged negligent conduct would therefore be imputed to the Insurance Company, as principal, so as to bar its action.

The Insurance Company moved to strike the defenses of imputed contributory negligence from both answers.The circuit court granted the motion, holding that under South Carolina law an agent who is sued by his principal for negligence may not impute the negligence of another agent to the principal in order to raise a defense of contributory negligence.

I.

Whether an innocent principal is barred from recovering damages caused by the negligence of one agent because another agent has also been negligent is a question of first impression in South Carolina.Common sense and fairness suggest that when two agents of the same principal have both injured him by their negligence, each should be liable rather than neither.Our consideration of the authorities convinces us the law holds both agents liable in such circumstances.

A.

A cause of action for negligence arises from the concurrence of three essential elements: (1) a duty of care owed by the defendant to the plaintiff; (2) a breach of that duty by a negligent act or omission, i.e., failure to exercise the care of a reasonable man in the circumstances; and (3) damage proximately resulting from the breach of duty.Brown v. South Carolina Insurance Company, 284 S.C. 47, 324 S.E.2d 641(Ct.App.1984), cert. dismissed, 290 S.C. 154, 348 S.E.2d 530.Negligence does not exist in the air; if there is no breach of a duty of care, there is no liability for negligence.Morris v. Mooney, 288 S.C. 447, 343 S.E.2d 442(1986).

B.

Where several causes combine to produce injury, a person is not relieved from liability for negligence because he is responsible for only one of them.It is sufficient that his negligence is an efficient cause without which the injury would not have resulted to as great an extent and that any other efficient cause is not attributable to the person injured.Gray v. Barnes, 244 S.C. 454, 137 S.E.2d 594(1964).Consequently, if a person's negligence is a proximate cause of an injury to another, the fact that the negligence of a third party concurred with his own negligence to produce the harm does not relieve him of liability.Brown v. National Oil Company, 233 S.C. 345, 105 S.E.2d 81(1958).In such cases, both tortfeasors are in breach of a duty of care owed to the plaintiff and, because the negligence of both concurred to produce the injury, both are liable to the full extent of the plaintiff's damages.Under the common law, as it presently exists in South Carolina, the courts will not undertake to apportion damages among the various persons whose negligence concurred to cause the plaintiff's injury.Rourk v. Selvey, 252 S.C. 25, 164 S.E.2d 909(1968);see also, Davis v. Garrett(1830)6 Bing. 716, 130 Eng.Rep. 1456.

C.

The law reaches a different result if an actionable injury is caused by the combined lack of care of more than one person, but one of those persons is the plaintiff himself.In such cases, the doctrine of contributory negligence applies in South Carolina.

Contributory negligence is a lack of ordinary care on the part of a person injured by the negligence of another which combines and concurs with that other's negligence and contributes to the injury as a proximate cause without which the injury would not have occurred.Taylor v. Bryant, 274 S.C. 509, 265 S.E.2d 514(1980);Horne v. Atlantic Coast Line R.R. Co., 177 S.C. 461, 181 S.E. 642(1935).If, in the exercise of ordinary care, the plaintiff might have avoided the consequences of the defendant's negligence, he is the author of his own injury in the eyes of the law.SeeConlin v. City Council of Charleston, 49 S.C.L. (15 Rich.) 201(1868).Accordingly, the common law, as it presently exists in South Carolina, bars him from recovering anything against a defendant whose negligence also caused his injuries, even if the defendant was guilty of greater negligence.Langley v. Boyter, 284 S.C. 162, 325 S.E.2d 550(Ct.App.1984), rev'd on other grounds, 286 S.C. 85, 332 S.E.2d 100(1985);Gladden v. Southern Ry. Co., 142 S.C. 492, 141 S.E. 90(1928).

Negligence and contributory negligence rest on different legal principles.Stated another way, negligence and contributory negligence are not symmetrical rules of law.A defendant guilty of negligence is liable because he breached a duty of care owed to the plaintiff.However, a plaintiff guilty of contributory negligence is not barred from recovery because he breached a duty of care owed to the defendant.¹Rather, the doctrine of contributory negligence embodies the principle that an injured person should not, as a matter of natural justice, be permitted to ask from others greater care than he himself exercises for his own welfare.If the plaintiff is contributorily negligent, recovery is barred on the principle that the law should not attempt to apportion damages among parties who are both at fault in causing an actionable injury, since it would not have occurred without the negligence of both.SeeBruno v. Pendleton Realty Co., 240 S.C. 46, 124 S.E.2d 580(1962);Herrell v. St. Louis-San Francisco Ry. Co., 324 Mo. 38, 23 S.W.2d 102(1929).

This distinction between negligence and contributory negligence was stated with admirable clarity by Viscount Simon in Nance v. British Columbia Electric Ry. Co., Ltd.[1951] A.C. 601, 611:

[W]hen negligence is alleged as the basis of an actionable wrong, a necessary ingredient in the conception is the existence of a duty owed by the defendant to the plaintiff to take due care....But when contributory negligence is set up as a defence, its existence does not depend on any duty owed by the injured party to the party sued, and all that is necessary to establish such a defence is to prove to the satisfaction of the jury that the injured party did not in his own interest take reasonable care of himself and contributed, by this want of care, to his own injury.For when contributory negligence is set up as a shield against the obligation to satisfy the whole of the plaintiff's claim, the principle involved is that, where a man is part author of his own injury, he cannot call on the other party to compensate him in full.

Accord, Staveley Iron & Chemical Co. Ltd.[1956] A.C. 627, 648(per Lord Tucker)(contributory negligence is not founded on breach of duty);Lewis v. Denye[1939]1 K.B. 540, 554-555(per du Parcq, L.J.)(the doctrine of contributory negligence cannot be based upon a breach of duty to the negligent defendant).

D.

For purposes of this appeal, Greene and Lawson argue not that the Insurance Company itself was guilty of contributory negligence, but that the lack of due care by the other agent should be imputed to the ...