Mobley v. Bland and Penn. Cas. Co. , 200 S.C. 448 ( 1942 )

I regret that I do not agree with the reasoning of the Chief Justice and the conclusions reached by him in this case.

In the first place, it is stated at the end of the opinion that it is not ascertainable from the complaint whether the defendant was operating as a common carrier. But there is more in the record upon this subject than is contained in the complaint and I do not think it can be omitted from consideration for it was a part of the basis of the decision of the Circuit Court.

In the order there Judge Dennis said, at folio 54 of the transcript: "While the complaint does not allege that at the time of the collision Bland was operating his truck as a common carrier, yet the affidavit in the attachment proceeding does so state and at the argument the defendant admitted this fact and stated that the complaint should be amended in this particular. Therefore the complaint should be considered as so amended. If as we have already concluded, an action of this nature can be maintained against a foreign corporation on a cause originating out of the state, then there would seem to be no good reason why the Casualty Company could not be joined with the defendant Bland in this action. The complaint alleges a cause of action against the defendant Bland for the negligent operation of the truck and resulting damages while engaged in the business of a common carrier and against the defendant Casualty Company as an insurer of Bland against loss from liability."

Furthermore it is stated in the brief of appellant:

"By agreement, it was considered that the complaint be amended by including allegations in the affidavit for attachment as follows:

"`That at the time of the loss and damage above described the defendant Bland was engaged in the transportation of goods, wares and personal property for hire as a common carrier * * * (and) the Pennsylvania Casualty Company had issued and had in force a policy or policies of insurance insuring the said Howard Bland against loss from liability imposed on him by law for damages resulting from the operation of the two trucks above described.

Thus I think we are bound to consider the record in accord with the foregoing quotations; that it was alleged by amendment of the complaint that Bland was operating as a common carrier at the time of the collision which gave rise to the litigation.

On that premise, can Bland's insurer "against loss from liability imposed on him by law," etc., be joined as a defendant in this action?

It is perfectly settled that an insurer against liability of a motor vehicle or its owner or operator engaged in private business or pleasure cannot be made a defendant in the Courts of this State in an original action for damages. Coxv. Employers Liability Assurance Corp., 191 S.C. 233,196 S.E., 549; Powell v. Drake et al., 199 S.C. 212,18 S.E.2d 745, filed February 16, 1942.

However, I think that it is equally well-settled in this Court that the insurer of a common carrier may be joined as a defendant with the carrier in an action for damages for the latter's negligence. Piper v. American Fidelity CasualtyCompany, 157 S.C. 106, 154 S.E., 106, and subsequent similar cases. And I do not think that this rule, remedial which it is, is dependent for its existence upon a statute requiring common carriers to carry insurance. Study of the Piper and subsequent cases discloses that the joinder is permitted because the insurance is procured for the benefit of passengers, owners of freight and the public generally. The statute in question is now Section 8511, of the Code of 1932. It will be searched in vain for any provision that the insurer may be sued, how or when; and the basis of the decision in the Piper case was the insurance is for the benefit of the public, hence the right of any member of the latter to sue upon it.

The truth of the situation is, as I see it, that a common carrier is using the public highways in a public business, and any injured member of the public, whose protection was sought by the carrier by the procurement of the insurance, is entitled to sue the insurer against liability. In contrast, a private vehicle owner procures insurance for his own protection, if at all.

In the case of Andrews v. Poole, 182 S.C. 206,188 S.E., 860, 863, which involved an accident in the State of Virginia and action was brought in this State by a non-resident against a resident carrier and his non-resident insurer, it was said that the statute might be disregarded and that "if a casualty company issues a policy of liability insurance then any party injured would have a beneficial interest under that policy and could sue in South Carolina, because the other defendant resides here; and necessarily the plaintiff has to sue where the defendant resides or where they can obtain jurisdiction." In this case the plaintiff is a resident of Dillon County of this State and the defendant Bland, according to the record, "voluntarily submitted to the jurisdiction of the Court" after attachment in this action of one of his motor trucks while it was in Dillon County, although it appears that he is a resident of the State of Georgia; he has not appealed. So there appears to be no material difference between the facts of this case and those in Andrews v. Poole. There the carrier was a South Carolina resident; here he voluntarily submitted himself to the jurisdiction of our Court.

It did not appear expressly in the report of the decision in the Andrews case that Poole was a carrier and it was thereafter attempted, on the supposed authority of that decision, to sue the insurer for the negligent operation of a privately owned and privately used motor vehicle in Coxv. Employers Liability Assurance Corporation, supra, which right this Court denied, and expressly limited the authority of Andrews v. Poole, to cases involving common carriers. It was there said [91 S.C. 233, 196 S.E., 550]: "We hold that one who alleges injury due to the negligent operation of a motor vehicle which is privately owned and privately used, and not used as a common carrier, may not unite in his complaint a cause of action in tort against the owner and operator of the motor vehicle with a cause of action on a contract of liability insurance carried by the owner of the motor vehicle."

It seems to me that this carries the clear implication that there may be united in a complaint a cause of action against the owner and operator of a motor vehicle and a cause of action on a contract of liability insurance when the owner or operator is a common carrier, as is the case here. Upon petition for rehearing of the Cox case it was unequivocally said by the Court that Andrews v. Poole, "is now authority only in cases involving common carriers." I think it is indisputable that the instant case is such under the record by which we are bound; it is a case involving a common carrier and is, therefore, ruled by Andrews v. Poole.

There is nothing novel in permitting a plaintiff to sue directly upon an insurance contract which may fairly be held to have been procured for his benefit although he is not a party to it, as for instance, the beneficiary of a life policy. Suits upon construction bonds by laborers and materialmen also constitute a common illustration. Mack Mfg. Co. v.Massachusetts Bonding and Ins. Co., 103 S.C. 55,87 S.E., 439, is a case in point, where the forceful opinion of this Court was delivered by Mr. Justice Gage. Another isCaldwell v. Carroll, 139 S.C. 163, 137 S.E., 444, cited with approval in the Piper case, where suit for tort was allowed against the surety upon a county road construction bond. In the concise opinion by Mr. Justice Watts, by which demurrers were overruled, it was said that the terms of the bond of the surety would show the extent of its liability and that the negation of liability under such is a matter of defense and cannot be determined by demurrer.

The latter describes the situation, I think, in this case. The complaint alleges that the appellant issued its policies whereby it insured Bland "against loss from any liability imposed by law on the said defendant Howard Bland for damages resulting through the operation of said trucks, or either of them, and under said policy or policies the said defendant Pennsylvania Casualty Company is liable to this plaintiff along with its co-defendant Howard Bland for the damages sustained * * *." The language "loss from any liability" is practically the identical language of Andrews v.Poole, and it is admitted in this case by the demurrer, whereby the case is brought within the rule of the latter, and the policy as described in the complaint is one of liability and not merely of indemnity of Bland who would in the case of the latter have to first suffer an actual loss by payment before liability of the insurer would arise.

Appellant might have produced a copy of its policy or policies at the hearing for construction by the Court, to which I doubt if respondent would have objected, but it did not do so and is now bound under its demurrer by the allegations of the complaint, which latter I think state a cause of action against the surety under the Andrews-Poole case, the authority of which is expressly preserved (Cox case,supra) in cases involving carriers, as has been pointed out.

But appellant argues that plaintiff's injuries were sustained in North Carolina and under the law of that State he would be confined first to a suit against Bland, so he cannot join the insurer here. The law in North Carolina upon the subject was submitted to the Court below and to this Court in two decisions of the Supreme Court of that State, both reported in 143 S.E., at pages 256 and 258, respectively, to wit, Williams v. Frederickson Motor ExpressLines, 195 N.C. 682, and Brown v. Brevard Auto ServiceCo., 195 N.C. 647. These cases hold in substance that the pertinent statute of North Carolina, then in effect, prevented the joinder of the carrier and the insurer in one action, pointing out the history of the law in that state to be that it had been held that such joinder was permissible (Harrison v.Southern Transit Corporation, 192 N.C. 545,135 S.E., 460), but the Legislature of the state, evidently intending to change the rule of the Harrison case, enacted a statute providing that suit could be entertained against the insurer only after procurement and failure to collect a judgment against a carrier. But as pointed out by Judge Dennis, the very effect of these decisions is to clear the way for the joinder in one action of the carrier and his insurer in this State, for the North Carolina Court in the Brown case very clearly held that the North Carolina statute upon the subject merely affected the remedy by providing a different method for enforcing the right of action; in other words that the law was not substantive but remedial. It is needless to cite authority for the postulate that there is no higher authority in the construction of the statute of a state than the highest Court of that state.

I think then, granting that the plaintiff in this action, had he gone across the State line and commenced it in North Carolina, could at first have sued only the carrier, the defendant Bland, his inability to join Bland's insurer would have been due only to the law of the remedy afforded in North Carolina, and when he chose to bring his suit in his home State of South Carolina he is entitled to the full remedy afforded by the laws of this State.

"It is a general rule that the law of the forum determines the proper parties to suits." 11 Am. Jur., 500. "Questions relating to parties to an action generally belong to the form of the remedy rather than to the right * * * and such questions are decided by the application of the lex fori. * * * The lex fori determines the joinder of parties." 15 C.J.S., Conflict of Laws, § 22, page 952.

The converse of the situation here presented was present in McArthur v. Maryland Casualty Company,184 Miss., 663, 186 So., 305, 120 A.L.R., 846, which is a well-reasoned decision in 1939 by the en banc Supreme Court of Mississippi and it was held that the law of the forum applied to the question of whether the insurer could be joined with the insured in a suit upon a collision which occurred in the State of Louisiana, where such joinder was permitted, but not being permitted by the law of Mississippi, the joinder was refused; the opinion is, I think, considered and convincing upon the point and it contains numerous citations which need not be here repeated. "Whether an insurer can be joined with the insured in an action to recover damages as a result of an automobile collision is a question of procedural law as to which the law of the state in which the action is brought controls. — Oertel v. Williams, supra [214 Wis. 68,251 N.W., 465]." Quoted from footnote, 15 C.J.S., Conflict of Laws, § 22, page 952.

In 2 Bouv, Law Dict., Rawle's Third Revision, page 1940, many authorities are cited for these lucid statements: "Thelex fori is to decide who are proper parties to a suit;" and: "The lex fori governs as to the nature, extent, and character of the remedy."

We are not without authority of this Court for the foregoing principle, that the lex fori governs the remedy. The literally learned opinion in Sawyer, Wallace Co. v. Macaulay,18 S.C. 543, was delivered by then Chief Justice Simpson, who cited earlier South Carolina decisions, and on pages 549 and 550 of the report is found his illuminating discussion of the subject, in which it was said: "The underlying principle is that the lex fori shall govern as to the remedy and its enforcement * * *."

Appellant excepts to the overruling of its special appearance to contest the jurisdiction of the Court and takes what to me is a startling position, set forth in its first exception, that there is no method of acquiring jurisdiction of it by the Courts of this State upon a cause of action which arose without the State. It argues that under the decision of this Court in Murray v. Sovereign Camp W.O.W., 192 S.C. 101,5 S.E.2d 560, jurisdiction of a foreign insurance company can be obtained only by service of process upon the State Insurance Commissioner pursuant to Section 7964 of the Code of 1932, and that section is applicable only to causes of action arising within the State, which position appears to me to be in the teeth of Section 826 of the Code of 1932, which provides that a foreign corporation may be sued in the Courts of this State "by any resident of this State, for any cause of action." And if the latter provision of the Code could possibly need clarification it is provided by the following subdivision, (2), that a non-resident may also sue a foreign corporation in our Courts, "when the cause of action shall have arisen, or the subject of the action shall be situated, within this State."

With reference to this Code section, then 461 of the Code of 1912, the eminent Justice Marion said in the Lipe case,infra, at pages 523 and 524 of 123 S.C. at page 103 of 116 S.E., 30 A.L.R., 248: "The language of the statute, conferring the right upon any resident to bring an action in the Circuit Court against a foreign corporation `for any cause of action', and limiting the right of action of a nonresident, is too clear to require interpretative comment. The plaintiff, a resident of the state, was entitled to sue upon her transitory cause of action arising in the state of North Carolina, and the Circuit Court was invested with jurisdiction to try the cause. Obviously, if the service of process was otherwise sufficient to give the Circuit Court jurisdiction of the person of the defendant, the service was not invalidated or rendered nugatory by reason of the fact that the plaintiff's cause of action arose without the state. The power of the state `to make the jurisdiction over the foreign corporation wide enough to include the adjudication of transitory action not arising in the state' is not open to question. See MissouriPac. R. Co. v. Clarendon B.O. Co., supra [257 U.S. 533,42 S.Ct., 210, 66 L.Ed., 354]; Best v. [Seaboard Airline] Ry., 72 S.C. [479] 482, 52 S.E., 223; 14a C.J., 1384, § 4100."

The language of Judge Dennis in disposing of this question is interesting:

"The contention of the defendant here would deny the right of the plaintiff to obtain jurisdiction by service on the insurance commissioner on the ground that under the Lipecase (123 S.C. 515, 116 S.E., 101 [30 A.L.R., 248] it would violate the due process clause of the Federal Constitution, and at the same time he challenges the validity of the service on the local agent of the defendant on the ground that the method provided by Code Section 7964 is exclusive. The logical and practical result of this reasoning would be to deny the right of the plaintiff to bring an action against a foreign insurance company on a cause of action arising out of the state. It may be noted here that while the Lipecase did not involve the question of service on an agent designated by a statute and the discussion of that question in that opinion was somewhat incidental, yet the reasoning and authority cited strongly suggest that the efficacy of such a method of service should be limited to causes of action arising within the state. Therefore granting this limitation, then clearly the provision of Section 7964 should be regarded as applying only to local causes of action or actions arising in the state. Consequently, the service made on the local agent of the Casualty Company in this state is valid and sufficient to obtain jurisdiction."

It will not be gainsaid that a "foreign" insurance company may obtain jurisdiction of and sue a resident of this State upon a transitory cause of action originating in another state, but it is contended that the converse is not true. It seems to me that to state the proposal is to answer it in the negative and I do not think that the decisions of this Court can fairly be interpreted to render the Court so impotent.

In the consideration of the problem now before the Court it must be kept in mind that we have the unusual situation of completed service upon the appellant by two methods. When it questioned the effectiveness of service upon the insurance commissioner under Section 7964, the plaintiff procured service upon a local agent of the appellant in Dillon County so that it need not be decided in this appeal which method of service was proper and effective, if it be determined that one or the other was. The able Circuit Judge held that service upon the local agent was effective which need not be expressly affirmed or reversed for it is well and universally recognized in the law of appeals that if the trial Court reached the correct decision it matters not upon what ground it was put.

The Chief Justice suggests that the law of the Lipe case has been superseded by that of the decision in the Murraycase, but I do not think so. That exhaustive research and careful consideration was given to the problem in the Lipecase is evidenced by the opinion of the Court by Mr. Justice Marion. It involved a cause of action which arose in North Carolina against a Virginia corporation which was doing business in this State and had agents here, upon one of whom process was served, although it had not complied with the formality of "domestication". The facts then are similar to the instant case except that the non-resident defendant was in that case a railroad corporation while here it is a non-resident insurance company which has "domesticated" and is doing business in the State.

The opinion of the Court in the Murray case, involving a cause of action which originated in the State, was delivered by the sound and careful Chief Justice Stabler and the result of the opinion was stated to be that a foreign insurance company can be served only under Section 7964 of the Code by delivery of process to the insurance commissioner, and the painstaking writer of the opinion set forth at the end that Section 434 is the general law regulating service of process upon foreign corporations, which Section 7964 did not repeal, but merely created an exception thereto with reference to insurance companies; but it was indicated on high authority in the Lipe case that such form of statutory substituted service related only to service of process in actions arising within the State, so it may be logically held, and in harmony with these decisions, that Section 7964 creates an exclusive method of service of foreign insurance companies upon causes of action arising within the State, and this in effect is what Judge Dennis held. With that I agree.

So in this case against a foreign insurance company, involving a cause of action which arose without the State, the plain provisions of Section 434 seem to be applicable, — that service may be made upon a foreign corporation by delivery of process personally to any agent thereof, — and I think it should be so held.

It is impossible for me to believe that Chief Justice Stabler intended in writing the decision in the Murray case to encroach upon the authority of the Lipe case which was not mentioned. And meanwhile that able justice had written the decision of the Court in the case of Thompson v. QueenCity Coach Company, 169 S.C. 231, 168 S.E., 693, 697, in which he referred at length to the Lipe case and approved it in strong language, saying: "The decision is well reasoned, firmly fortified by authority, and sound * * *." Incidentally, in that case, which was a suit against certain carriers and their sureties, it was held that the court lacked jurisdiction over the latter and could not try the case because the carriers were not within the jurisdiction of the Court. Applying that decision to the facts before us, I think it is clear authority for jurisdiction in this case because here the carrier is voluntarily within the jurisdiction of the Court, as has been mentioned.

One of the exceptions of the appellant is to the effect that maintenance of the suit against it would be a denial of the equal protection of the law and a deprivation of its property without due process of law, in violation of the Federal Constitution, but the point was not argued and may, therefore, be deemed to have been abandoned. It may be said, however, in passing, that should the appeal prevail I think offhand that rather than as contended, it would be more of a deprivation of the property of plaintiff if he be thereby denied the right to sue in the Courts of his State upon his cause of action against an insurance company domesticated and doing business in this State because forsooth his cause of action originated across the boundary line of the State, which happens by unimportant coincidence to be also the boundary of the county of his residence.

It is noted that the defendant Bland is a resident of Georgia, the collision occurred in the State of North Carolina and one of his truck carriers was attached in the action in this State, whereupon he made his voluntary appearance and became subject to the jurisdiction of the Court. From such it may be reasonably inferred that he was engaged in interstate commerce, but no point thereabout was made in the Court below and no federal statute or regulation was cited or relied upon, so, of course, none such has been considered by this Court.

I think that the exceptions should be overruled and the orders of the Circuit Court affirmed.

MR. ASSOCIATE JUSTICE FISHBURNE concurs.