Squires v. National Grange Mut. Ins. Co., 18433

• Court: United States State Supreme Court of South Carolina
• Citation: 247 S.C. 58,145 S.E.2d 673
• Docket Number: No. 18433,18433
• Parties: E. J. SQUIRES, as Administrator of Estate of Elnita Shelley Squires, Respondent, v. NATIONAL GRANGE MUTUAL INSURANCE CO., Appellant. Rufus SKIPPER, as Administrator of Estate of Linda Faye Johnson, Respondent. v. NATIONAL GRANGE MUTUAL INSURANCE CO., Appellant.
• Decision Date: 07 December 1965

Page 673

145 S.E.2d 673 247 S.C. 58 E. J. SQUIRES, as Administrator of Estate of Elnita Shelley
Squires, Respondent,
v.
NATIONAL GRANGE MUTUAL INSURANCE CO., Appellant.
Rufus SKIPPER, as Administrator of Estate of Linda Faye
Johnson, Respondent.
v.
NATIONAL GRANGE MUTUAL INSURANCE CO., Appellant. No. 18433. Supreme Court of South Carolina. Dec. 7, 1965.

[247 S.C. 61]

Page 674

Wright, Scott, Blackwell & Powers, Florence, for appellant.

H. T. Abbott, Conway, for respondents.

MOSS, Justice.

These two actions, one by E. J. Squires, as Administrator of the Estate of Elnita Shelley Squires, and the other by Rufus Skipper, as Administrator of the Estate of Linda Faye Johnson, the respondents herein, were instituted against National Grange Mutual Insurance Company, the appellant herein, to enforce part payment of

Page 675

certain judgments previously secured by them against Leroy Sessions and Archie Hartley in wrongful death actions. The appellant had liability[247 S.C. 62] and uninsured motorist coverage on the automobile in which respondents' intestates were riding at the time of their deaths.

These cases, along with a companion case, were tried before the Honorable J. B. Ness, Presiding Judge, without a jury. The cases were submitted upon the pleadings and stipulations of fact. Thereafter, by order dated March 26, 1965, the Trial Judge held that the appellant is liable to the respondents as to the verdicts secured against Leroy Sessions only, for a sum not to exceed $10,000.00 each. The appellant gave timely notice of intention to appeal from said order.

The record here reveals that on May 13, 1961, Elnita Shelley Squires, Linda Faye Johnson and Effie Johnson, along with two other women, were passengers in an automobile driven by Lorenzer Bill Squires when it was involved in a head-on collision with an automobile driven by Leroy Sessions, who was engaged in an automobile race upon U. S. Highway No. 17 with an automobile driven by Archie Hartley and an automobile owned by Ila W. Kennedy and driven at the time by John Kennedy. All occupants of the Squires automobile died as a result of injuries received in said collision.

Thereafter, administrators were appointed for the estates of Elnita Shelley Squires, Linde Faye Johnson and Effie Johnson and these administrators, in September, 1961, instituted suits for their wrongful deaths against Leroy Sessions, Archie Hartley and Ila W. Kennedy. Sessions failed to answer the complaints. Kennedy answered and, thereafter, entered into a covenant not to sue with the said administrators and there was paid to each the sum of $2,833.34. Hartley's answer was a general denial.

The case for the wrongful death of Effie Johnson was tried in the Court of Common Pleas for Georgetown County on April 24, 1962, and resulted in a verdict in favor of her administrator against Leroy Sessions for $10,000.00 actual [247 S.C. 63] damages and $15,000.00 punitive damages and against Archie Hartley for $5,000.00 actual damages and $10,000.00 punitive damages. This case was appealed to this court and the judgment of the lower court was affirmed. We held that all who engage in an automobile race upon a public highway are jointly and concurrently liable for an injury sustained by a third person as a result thereof, regardless of which of the racing cars actually inflicted the injury. Skipper v. Hartley, 242 S.C. 221 130 S.E.2d 486.

The record shows that on May 13, 1961, when Elnita Shelley Squires, Linda Faye Johnson and Effie Johnson lost their lives as a result of a head-on collision with an automobile driven by Leroy Sessions and at the time the actions were commenced for their wrongful deaths, Leroy Sessions and Archie Hartley were driving automobiles covered by liability insurance with Universal Insurance Company and the car owned by Ila W. Kennedy and driven by John Kennedy was insured by The Boston-Old Colony Insurance Company. It thus appears that all of the defendants in the original wrongful death actions were operators of insured motor vehicles.

It further appears that sometime after the accident of May 13, 1961, and prior to the trial of the Effie Johnson case on April 24, 1962, that Universal Insurance Company, through its attorneys, notified the attorneys for the respondents here of the denial of coverage as to Leroy Sessions under its policy because of the misstatements in his application. It appears that on April 23, 1962, one day prior to the trial of the Effie Johnson case, that counsel for the respondents wrote to the appellant as follows:

'I realize that you have already been advised of this accident, in that the medical on both of these policies has been paid; however, the copies of these

Page 676

complaints are forwarded to you due to the fact that the insurance carrier for the defendant Leroy Sessions has denied liability in connection with these cases. Under the uninsured motorist law, I thought it well that you have a copy of these complaints for your file.'

[247 S.C. 64] In response to the foregoing letter the appellant, on May 1, 1962, wrote the respondents and their attorney denying that the coverage of their policy extended to respondents' intestates in connection with the accident or to Leroy Sessions because the respondents had violated a condition of the policy by failing to immediately forward copies of the suit papers to it when the suits were instituted and upon the further ground that Sessions was not an uninsured motorist.

Universal Insurance Company was placed in receivership during the fall of 1962 pursuant to a proceeding which was instituted on August 9, 1962.

The wrongful death actions brought by the administrators of the estates of Elnita Shelley Squires and Linda Faye Johnson were called for trial at the 1962 September term of the Court of Common Pleas for Georgetown County but were continued because the attorneys for Universal Insurance Company, who were representing Hartley, asked to be allowed to withdraw. These cases were again continued at the October term of court when these attorneys advised that they had withdrawn. At the December 1962 term of court these two cases were called for trial and default judgments taken for $15,000.00 actual damages against Sessions and Hartley in the Squires case, and $12,500.00 actual damages against Sessions and Hartley in the Linda Faye Johnson case.

At the time of the collision which resulted in the death of respondents' intestates, there was in force and effect an automobile liability insurance policy issued by the appellant to Lorenzer Bill Squires. Attached to and forming a part of this policy was the uninsured motorist endorsement written in compliance with Sections 46-750.13 and 46-750.14 of the Code, providing...