Opinion
15700
January 8, 1945.
Before THOS. S. SEASE, J., Cherokee County, September, 1944. Affirmed.
Action for damages to property and for breach of contract by Piedmont Fire Insurance Company, Inc., against Burlington Truckers, Inc., and Continental Casualty Company, Insurance Carrier. Defendants demurred to the Complaint on the ground of Misjoinder Of Causes Of Action. From Judgment overruling Demurrer, the Defendants appeal.
The Circuit Order of Judge Sease, ordered to be reported, follows:
The Demurrer in this case was heard before me at Chambers at Spartanburg, S.C. on September 2, 1944. The Demurrer is based on a misjoinder of causes of action, one in tort and one in contract against a common carrier and its insurance company. The defendants contend that such joinder is permissible only when damages claimed arise out of a personal injury, but that in this case the alleged damages arise out of loss to property, and for this reason the defendants claim that the joinder of the causes of action are improper.
Section 8511 of the 1942 Code of Laws of South Carolina provides, in part, "The commission shall, in the granting of a certificate, require the applicant to procure and file with said commission liability and property damage insurance, or surety bond with some casualty or surety company authorized to do business in this State, on such motor vehicle or vehicles to be used in the service aforesaid, in such amount as the commission may determine, insuring or indemnifying passengers or cargo and the public receiving personal injury by reason of any act of negligence, and for damage to property of any person other than the assured; such policy or bond to contain such conditions, provisions, and limitations as the commission may prescribe and the same shall be kept in full force and effect." It has been clearly established in this State in the cases of Piper v. American Fidelity Casualty Co. et al. 157 S.C. 106, 154 S.E., 106; Benn v. Camel City Coach Co., et al., 162 S.C. 44, 160 S.E., 135. These cases, decided in 1929 and 1931, respectively, that the said Act requiring transportation companies to procure liability and property damage insurance or surety bond, for the benefit of the traveling public receiving injuries through the negligence of the transportation company, gave the public such an interest in the contract of insurance that upon damage to person or property by the negligence of a common carrier that an action could be brought by the person so damaged and the common carrier and its insurance company could be joined as defendants where it was alleged that the loss arose only from the negligence of the common carrier. The Court said in the Piper case, supra [ 157 S.C. 106, 154 S.E., 107], "Otherwise, it would be necessary to bring two suits in order to enforce a common liability growing out of the same transaction and in the second action against the insurer it might be urged that it was not bound by the judgment against the transportation Company, which it had no opportunity to defend."
Act 287 of the 1935 Acts does not supersede Section 8511 of the Code of 1942, which Section 8511 was originally Act 170 of the 1925 Acts, and the said 1925 Act was the basis for the joinder of the common carrier and the insurance company as allowed in the Piper case and the Benn case. Clearly there is no sound reason to allow a joinder of causes of action in such cases where the damage is based on personal injuries and not to allow it where damage is based on loss of property when the insurance contract, as it is necessitated by Section 8511 of the 1942 Code, provides that the said contract must cover injury to the person or damage to the property. For example, under the defendant's reasoning, if a person traveling on the highways in an expensive automobile had his nose broken and his expensive automobile totally demolished by the negligence of a common carrier he would not be allowed to bring an action against the common carrier and its insurance company for the injuries to his person and the damage to his automobile. The defendants argue that he would have to bring separate actions against the parties. This would entail a multiplicity of actions, which the law does not allow.
The defendants argue also in their Demurrers that the alleged property loss of the plaintiff is not covered by the insurance contract between the defendants. The insurance contract is not before the Court and this defense should be set up at the proper time, and it is not a matter which can be determined by demurring, since by demurring the defendants admit the allegations of the Complaint to be true insofar as the property is concerned.
The defendants have already filed their Answer to this action, and any amendments to same may be allowed by proper motion to this Court.
Messrs. Wolfe Fort, of Gaffney, S.C. Counsel for Appellants, cite: As to Significance of Act No. 287, Acts of 1935, pp. 406-7; inc., Amending Sec. 487, Code of 1942: 157 S.C. 118; 12 C.J., p. 187; Code of S.L.C.L., 1942, Vol. 4, 8511; Act No. 287, Acts of 1935.
Mr. J.H. Hall and Mr. C.E. Saint-Amand, both of Gaffney, S.C. Counsel for Respondents, cite: As to Act 287, Acts of 1935, Barring Joinder Of Common Carrier And Its Insurer In Action Founded Only On Negligence, and Where Damages Claimed Are For Property Loss: 154 S.C. 106; 157 S.C. 106; 162 S.C. 44, 160 S.E., 35; 193 S.C. 176, 7 S.E.2d 833.
January 8, 1945.
This appeal comes to this Court from the Court of Common Pleas of Cherokee County and is from an order passed by Honorable T.S. Sease overruling a demurrer to the complaint in the action.
The demurrer was on two grounds, first, that there was a misjoinder of causes of action and a lack of common liability on the part of the defendants Burlington Truckers, Inc., and Continental Casualty Company, Inc., in that there is an alleged cause of action in tort against the defendant Burlington Truckers, Inc., and what purported to be a cause of action against the Continental Casualty Company, under Section 8511 of the 1942 Code and Section 487 of that Code, making it permissible to join the insurance carrier in such cases only where the suit is based on personal injury and that therefore an action based on alleged property damage was excluded, and secondly, because it appeared from the face of the complaint that the source of damage to the plaintiff was not such as was within the contemplation of the insurance contract of the defendant Continental Casualty Company.
Judge Sease's order overruling this demurrer as to the first ground held in substance that to sustain the demurrer would entail a multiplicity of actions and that under Piper v. American Fidelity Casualty Co. et. al. 157 S.C. 106, 154 S.E., 106, and Benn v. Camel City Coach Co. et. al., 162 S.C. 44, 160 S.E., 135, both causes of action relating to property damage and personal injury might be joined in the same complaint against both principal and surety.
The appeal claims error in this order in that the Act of 1935, Act No. 287, 39 St. at Large, Page 406, applied only to actions involving personal injury and not to actions involving property damage; in that the said amendment was intended to modify the common-law practice as declared in the cases above referred to; in that the joining of actions for property damage is not permissible under the modified statute law where the actions involve only property damage, and in that the passage of the Act of May, 1935, by implication, repealed all contrary statutory provisions, and in that no significance was given to the Act of 1935 by holding that the established rule had not been affected by the passage of the said Act.
No exceptions were made with regard to the holding of Judge Sease to the effect that the second ground of the demurrer did not properly raise the matter of whether the alleged liability was comprehended by the policy of insurance in that the said policy was not before the Court on demurrer.
It is in the view of this Court that Act No. 287, approved May 17, 1935, is remedial legislation and as such is entitled to the liberal construction at the hands of this Court. We accordingly overrule all exceptions and affirm the order of Judge Sease overruling the demurrer. We do not believe that the passage of the Act referred to modified the previously declared practice of permitting the joinder of such causes of action as those involved here as against both principal and surety. Let the order of Judge Sease be reported herewith.
MR. CHIEF JUSTICE BAKER and MESSRS. ASSOCIATE JUSTICES FISHBURNE, OXNER and STUKES concur.