Adderton v. Aetna Casualty & Surety Co.

189 S.E. 736, 182 S.C. 465, 1937 S.C. LEXIS 70

• Court: Supreme Court of South Carolina
• Decided: February 4, 1937
• Docket: 14428
• Status: Published

Opinions

The opinion of the Court was delivered by

Mr. A. D. Gaston, Acting Associate Justice.

This case has been through various vicissitudes. The situation is shown in the order of this Court for a rehearing. The order is as follows, to wit:

“A curious situation has developed in this case. On the first hearing of the appeal Mr. Chief Justice Stabler wrote an opinion to the effect that the order of the trial Judge sustaining the demurrer to the first complaint, from which order there was no appeal, barred recovery on the amended complaint, and that the trial Judge erred in denying the motion to dismiss the amended complaint. Having reached this conclusion he did not determine, nor consider the other issues made by the exceptions, save that which pertained to the question whether the truck was being used to carry passengers for hire within the meaning of the policy when the collission occurred. As to that, he held that the testimony thereabout made an issue of fact for the jury.

“Mr. Justice Bonham wrote an opinion which dealt only with the matters relating to the effect of the amendments to the first complaint as referred to the order of the trial Judge sustaining the demurrer to the first complaint, and that which denied the motion to dismiss the amended complaint. He held that the amended complaint contained allegations which showed that, under the provisions of the Code, the two defendants were necessary parties to the final determination of the action.

“Mr. Justice Fishburne concurred in the opinion of the Chief Justice, and Mr. Justice Cartel in that of Mr. Justice Bonham. Mr. Justice Baker was disqualified. In consequence of this equal division of the Court, a reargument of the case was ordered and Hon. G. Duncan Bellinger, Judge of the Fifth Circuit, was assigned to sit with the Court in the stead of Mr. Justice Baker. He did not write a separate opinion, but concurred in the opinionof Mr. Justice Bonham, which thus became the majority opinion of the Court.

“The appellants have filed a petition for rehearing which brings to the attention of the Court that certain questions made by the exceptions have not been passed upon by either of the opinions. They are, of course, entitled to have these issues determined. The petition, tha'efore, for a rehearing is granted, and the case ordered set down for argument at the October, 1936, term of Court.”

It is apparent at the outset two separate opinions have been filed, and it is desirable to avoid any repetition of the statements of fact, or the reasoning set forth in the two opinions, by Mr. Chief Justice Stabler and Mr. Justice Bonham, respectively.

According to the order granting a rehearing the case was reargued at the October term, 1936, of this Court. The Court was then composed of the Chief Justice, and Mr. Justice Bonham, Mr. Justice Fishburne, and the writer of this opinion. Mr. Justice Carter did not sit on account of illness, and Mr. Justice Baker did not sit on account of being disqualified.

The first ground for a rehearing is predicated on the proposition that the two defendants made separate contracts and not a joint contract with the insured, and that this is not an open question in the case, for the reason that the trial Court so held and no appeal was taken by the plaintiff from this holding, and in consequence thereof it is the law of the case; and appellants now claim that the judgment below cannot be affirmed and that tie Supreme Court, under the facts of this case, is precluded from basing a judgment of affirmation on the ground tint the liability of the defendants was joint and that they made one contract and not two contracts. The real issue before the Court now is whether this action can be maintained against both defendants in one suit. Judgment was rendered in the County Court in solido' for the sum of $1,500.00, for damages sustained by the plaintiff, to his automobile and for injuries to his person, in a suit against Coastal Oil Company and a Chevrolet truck, which caused the collision. It was necessary, under the law of this State, for the plaintiff to bring a single action for all of his damages to his person and his property caused by the collision. He could not split his case into two suits Holcombe v. Garland & Denwiddie, 162 S. C., 379, 160 S. E., 881; Arthur Flickner v. Chevrolet Truck, 178 S. C., 53, 182 S. E., 104; First Carolinas Joint Stock Land Bank v. McNiel, 177 S. C., 332, 181 S. E., 21; Lawton v. N. Y. Life Insurance Co., 181 S. C., 230, 186 S. E., 909.

It was, therefore, proper, necessary, and indispensable that the plaintiff recover all damages to which he was entitled by reason of his injuries and to recover judgment in one suit; and he could not maintain separate actions for the injuries sustained. This judgment was never paid by the Coastal Oil Company. The plaintiff then brought his suit against the defendants herein, upon his complaint alleging that the defendants were liable for the judgment by reason of their joint and concurrent policy of insurance. The defendants demurred to the original complaint, and the County Court sustained the demurrer and held that the liability of the two defendants is separate and not joint, and that the joinder of the causes of action in one complaint is not permitted under Section 487 of the Code 1932, since each cause of action does not affect both defendants. But the County Court further ordered that the plaintiff be allowed to amend his complaint if so advised.

The amended complaint was thereafter served and alleged the liability of the defendants, for the judgment against the Coastal Oil Company and the Chevrolet truck, and contained new allegations charging both defendants with liability under the terms of the combined concurrent policy or policies of insurance, issued by them simultaneously, by their joint agent, upon the one offending truck owned by Coastal Oil Company for the payment of the judgment entered upon the verdict rendered in one lump sum for damages sustained to the person and property of the plaintiff, and which were not separately stated by the jury in the verdict; that both defendants were duly notified by the insured of the claim for damages and suit thereon, but they refused and failed to appear and defend, or have the judgment proportioned as to personal damages and as to property damages; that the defendants are fraudulently attempting to hinder and delay or defeat any legitimate claims or suits against them under their combined contracts; that the defendants are one and the same concern, or are owned and controlled by the same parties in interest and are operated together as one; and that, therefore, both defendants are liable for the payment of the one judgment, as between themselves for their respective share or part thereof, and are proper, necessary, and indispensable party defendants for a complete determination of this controversy.

Both defendants served identical motions to dismiss the amended complaint upon exactly similar grounds, that the two defendants cannot be sued jointly and the order of the County Court to that effect has become res adjudicatei; and that the purported amended complaint is inconsistent with the order of Court sustaining the demurrer to the original complaint.

The County Court overruled these twin motions, in one single order, holding that the order sustaining the duplicate demurrers to the original complaint was a final determination of all questions raised by the allegations of the original complaint, but is not res. adjudicata as to the new allegations, which show that the presence of both defendants is necessary to a complete determination of the rights of all parties to the controversy, and to save a multiplicity of suits; and the defendants were allowed twenty days within which to answer.

Dual answers were‘filed by the two double defendants, and each answer is a duplicate of the other, with absolutely the same defenses couched in the same language, except as to the name of the answering defendant, which varied sufficiently to designate the difference in name of each.

On the trial of the case, at the dose of plaintiff’s testimony, the attorneys for the defendants moved for a nonsuit and stated that “the grounds on which I base my motion, made for each defendant separately and in writing are as follows

(1) There is no evidence to establish a joint liability.

(2) The testimony shows that several causes of actions have been improperly united.

(3) If some kind of liability has been established against this defendant, the amount is not established by any testimony.

(4) There is a total failure of proof of any judgment in favor of plaintiff against the person indemnified and to whom the alleged policy of this defendant was issued.

(5) It affirmatively appears that the former action was dismissed as to the person insured under the policy of this defendant and no cause of action can accrue to the plaintiff in this suit.

(6) There is a total failure of any testimony to show any legal judgment in favor of the plaintiff in the former suit, but only a verdict of a jury.

(7) There is a total failure of any testimony to show that any verdict of the jury or judgment, if any, in a former action included in it damage for which this defendant is liable under its indemnity policy, and

(8) The testimony shows that the offending truck was used for a purpose not covered by the policy, to w.t, carry^ing passergers for hire and there is no evidence of waiver. The motion for a nonsuit as to each defendant, wlich was stated sirgly, although applied separately, was overruled. The defeidants offered no testimony and made a motpn for a directed verdict, as a separate motion by each defendant upon the same grounds stated in the motion for nojsuit. On plaintiff’s motion the Court directed a verdict ii his favor for the total amount claimed.

Appelants insist by the exceptions and by the grouids of the jetition on which the rehearing was granted that he defendants made separate contracts; therefore, cannot ie sued jointly. It is true that the Court below consistently hei] that the two contracts were severable and not joint. How ever, tie Court clearly held that under the allegations of the amenced complaint the presence of both defendants is necessary :o fully determine the rights of the parties, and that the aisence of either of the defendants would render it impossble to do SO' even if the plaintiff should resort to two sepa'ate causes of action against them. He also further held that it was his duty to direct a verdict for the full anwunt and that then the defendants could come on the equty side of the Court and ascertain how much each of then is liable for in this suit. The Court was correct in its rumgs on this point, and the exceptions thereto should be oierruled. The two policy contracts contain the following simulations and conditions, to wit:

“X. Suit against Company. No action shall lie against tie Company to recover for loss and/or expense under this p>licy arising or resulting from claims upon the Assured £>r damages, unless it shall be brought for loss and/or ex-piase, whose amount shall have been definitely determined ly final judgment after trial of the issue or by agreement if the parties with the consent of the Company.”

“VII. If claim for damages is made or suit at law is brought the Assured shall forward to the Company every Demancj Summons, Notice or other process as soon as the same stall have been received by or served on him, the Company vill, at its own cost, adjust such claim or defend such suit in the name and on behalf of the Assured or other person eititled to benefit hereunder. The Assured stall co-operate with the Company at all times in facilitating the investigation and disposition of claims and suits but the Assure! shall not voluntarily assume any liability i;or incur any expense nor settle any claim except at his own cost wihout the written consent of the company previously gi'en, except that in case of injury to the person of another, tie Assured may provide at the Company’s expense such jnmediate surgical relief as is imperative at the time of he accident.”

The foregoing stipulations are a part of the general conditions and are made by the terms of the policies applicable to the policies issued severally by the defendants. It is clear, therefore, that each defendant well knew that these conditions applied to both defendants, and it is further dea- that each defendant well knew that under the law of South Carolina any suit brought against the assured under the two policies for injuries caused to the person and property of another by reason of a collision with the Chevrolet tuck described in the insurance policies must be brought in one action and could not be maintained in separate suits. The insurance contracts, therefore, were made as a matter of aw subject to and in contemplation of these decisions of this Court, because the defendants could not enter into any contract in this State which is contrary to the law of this Stste.

The testimony shows conclusively that when the first suit was begun by the plaintiff herein against the assured and fie offending truck that the summons and complaint wore served personally on the defendants in that suit who deliverid them to the agent of the two Aetna Companies, appellant herein; and that these companies wrote one letter to their insured and denied liability on the ground that the truck was being used for carrying passengers for hire. The appellants, therefore, refused to defend the first suit. It was their right under the policies to defend this suit and to demand that the verdict of the jury state or show separately the amount of the damage sustained by the plaintiff to his property and the amount sustained by him to his person. The defendants voluntarily relinquished this known right on their part after full notice of every fact and circumstance in regard to -the whole matter and, of course, waived their rights to object to a lump sum verdict. The letter referred to reads in part thus:

“In other words, we feel that the use of the truck at the time of the accident in the transporting of persons for a consideration which is sufficient to relieve us from liability on account of the above mentioned accident. Under separate cover we are forwarding to you copies of statements secured from witnesses which we feel will be of benefit to you in the defense of any claims or suits brought in connection with the accident. We are returning copy of summons and complaint which you gave to our Mr. Holmes, Adjuster.

“Yours very truly,

“Aetna Life Insurance Company,

“Aetna Casualty & Surety Company,

“By: H. A. Boren, Adjuster.

“MAH-HA.Boren.”

I am satisfied, therefore, that the present suit can and should be maintained against both defendants and that the Court below ruled correctly and properly on this issue.

This conclusion is based upon the issues made by the pleadings, and upon the record in the case. It follows fairly from the facts in the case, the appellants cannot complain as to the failure of the jury to render a separate verdict when the appellants failed to defend the suit, and made no motion for a separate statement of the causes of action. Miles v. Thrower, 181 S. C., 392, 187 S. E., 818, filed October 7, 1936.

The next issue raised by the exceptions is based on the theory that no judgment was proved, but only a verdict of a jury, as the basis for the present suit. It seems sufficient in response to this to say that the verdict rendered established the liability of the Aetna Companies to- suit on their contracts- of indemnity insurance. In addition to thvls, the record shows that a motion for new trial was made and refused; notice of appeal was served and an order of the Court below duly made dismissing the appeal, for failure to perfect same.

The testimony of the plaintiff, as a witness, shows also as follows:

Plaintiff offers in evidence judgment roll No. 10595:

“Q. Plow much has been paid on this judgment? A. Sixty-five ($65.00) dollars, I think.

“Q. That was the result of an execution given the sheriff of Horry County of the transcript of judgment? A. Yes, sir.

“Q. Did the sheriff levy and sell some of the Coastal Oil Company’s property? A. Yes, sir.”

It must be remembered that the appellants offered no evidence. Most surely this is ample proof of the final determination of the first suit, before the suit at bar was begun against the appellants upon their indemnity obligations. The plaintiff, as a third party, has the right to sue on such indemnity contract made for his benefit after his remedy against the insured has been exhausted. Andrews v. Poole et al. (S. C.), 188 S. E., 860, filed December, 1936.

Appellants say further that the judgment, if any, in the first suit was not against the assured, but against Coastal Oil Company as a corporation.

The name and residence address of the assured is stated in the policies, to be “H. — W. T'allevast d-b-a- Coastal Oil Company, agents for The Texas Co., of Conway, Horry Co., S. C.,” and insured two Chevrolet trucks, fully designated by year, tonnage, serial and motor numbers.

These policies were in force when the damages were sustained. The policies also^ recited that the signature of the assured was correctly affixed to the application. There was no mistake as to the identity of the assured, nor as to the coverage of the offending truck.

The first suit was against W. H. Tallevast, the Coastal Oil Company, a corporation, and Chevrolet motortruck, S. C. license No. 4098 et al. This is the suit appellants refused to defend.

The evidence shows that W. H. Tallevast testified for plaintiff herein as follows:

Direct examination by Mr. C. T. McDonald:

“Q. Mr. Tallevast, where do you live? A. Conway, Horry County.

“Q. Is the Coastal Oil Company a corporation of the State of South Carolina? A. Yes, sir.

“Q. What office do you hold in that corporation? A. President and Manager.

“Q. Did you hold that position during the month of June, 1933 ? A. Yes, sir.

“Q. Was Mr. H. C. Tallevast an employee of the Coastal .Oil Company? A. Yes, sir.

“Q. Did you or the Coastal Company about June, 1933, own a Chevrolet 1929 Model truck? A. Yes, sir.

“Q. What is this Mr. Tallevast (giving him a paper) ? A. Property damage and liability insurance policy that we had on that truck.

“Q. Was that insurance in force at the time, June 30, 1933? A. Yes, sir.

(Exhibit: Plaintiff offers this policy of 2Etna Casualty Automobile policies in evidence, No. J. A. 3808690, marked Pltfs. Ex. 2.)

“Q. Who did you buy that policy from ? A. I think it is D. A. Spivey & Company, W. B. King was manager.

“Q. Did you have any conversation with him? A. I just asked him, as I had been doing for the past five (5) or six (6) years to cover my truck with a policy, with liability in the policy and property damage policy and that is the policy he mailed me. That is the policy I paid him for.”

Re-cross examination by Mr. Woods:

“Q. I neglected to ask you this — this truck belonged to the Coastal Oil Company? A. Yes, sir.

“Q. It did not belong to you personally? A. No, sir.

“Q. You, personally, had no-interest in it? A. I had interest in it as owner of the Coastal Oil Company.

“Q. As owner of the stock? A. Yes, sir; and as manager.

“Q. What was your connection with the Coastal Oil Company? A. President and Manager.”

It also conclusively appears that W. H. and H. W. Tallevast are one and the same person, and that the policy used the letters d-b-a to mean “doing business as” Coastal Oil Company. This beyond question designates Coastal Oil Company as the assured, regardless of whether it be a trade-name, or a corporation, conducted by Tallevast. The Court below correctly held that the policies were intended and did indemnify Coastal Oil Company. A nonsuit as to Tallevast was granted.

The appellants’ last theory is that the truck was being used at the time of the accident to carry passengers for hire, a hazard not covered by the policies, and that this issue should have been submitted to the jury by the Court below.

The Court below correctly held that the mere fact of some testimony that the truck while operated in its legal business was -incidentally carrying CCC boys who paid the driver of the truck compensation for his service did not raise a jury issue.

The truck certainly was not engaged for hire by the owners to carry passengers, but was sent from Conway to Florence to haul 10 barrels of oil from the Texas Company’s plant, and at the time of the accident was traveling very slowly, at night on the Florence-Darlington Highway, about four miles beyond Florence, near the home of Wooten, sub-agent of the Texas Company, where the driver of the truck expected to stop to- see Wooten before he went further with the CCC boys who were on the truck.

No claim for damages is made by any of these boys, and Coastal Oil Company and Tallevast received no money for carrying them. This does not raise a jury issue, as there is not a scintilla of evidence to the contrary. No other reasonable inference could be had upon the evidence, and there was no evidence to the contrary to sustain a verdict. Both sides asked for a directed verdict, and the defendants offered no testimony. It was proper, therefore, for the Court to decide the legal issues. Fourth Nat. Bank v. City of Green ville, 91 S. C., 81, 74 S. E., 126.

Therefore, the Court being evenly divided, the judgment below is affirmed.

Mr. Justice Boni-iam concurs. Mr. Ci-iiee Justice Stabler and Mr. Justice Fishburne dissent. Mr. Justice Carter did not participate. Mr. Justice Baker disqualified.