The opinion of the court was delivered by: Moss, Justice.
It appears from the record that an automobile owned and driven by Edward C. Crook, the respondent herein, and one owned and driven by Otis L. Smith, now deceased, were in a collision in the year 1953. The respondent sustained personal injuries, and he instituted an action against Otis L. Smith, who died during the pendency of the action, and who is now represented by W. Frank Smith, as administrator of said estate, he having been substituted in lieu of the original defendant. The respondent recovered a judgment against the estate of Otis L. Smith in the amount of Five Thousand ($5,000.00) Dollars, in the Common Pleas Court of Spartanburg County, South Carolina. This judgment, which became final because no appeal was taken therefrom, was entered of record in the office of the Clerk of Court for Spartanburg County, South Carolina, on October 27, 1955. An execution was issued upon said judgment against the estate of Otis L. Smith and a nulla bona return was made by the Sheriff of Spartanburg County, South Carolina.
The record shows that the appellant, State Farm Mutual Automobile Insurance Company, issued its liability insurance policy to Otis L. Smith, covering the automobile which he was driving at the time of the collision with the respondent, which said policy had a policy limit to any one person in the amount of Five Thousand ($5,000.00) Dollars.
The present action was instituted by the respondent to recover from the appellant the amount of his judgment. The action is one ex contractu. The respondent alleges in his complaint that by the terms of the above referred to contract of insurance, the appellant agreed that it would pay any judgment, not exceeding the sum of Five Thousand ($5,000.00) Dollars, to any person holding such arising out of the negligent operation of the automobile of Otis L. Smith, now deceased. The complaint further alleges that this policy provided that the judgment creditor would have the right to sue the appellant to collect such judgment, these provisions in the contract being for the benefit of the holder of a judgment against the insured, Otis L. Smith. The complaint then alleges that the respondent demanded payment of his judgment from the appellant and that such demand was refused. It is then alleged by the refusal of the appellant to pay said judgment that it breached its contract of insurance with Otis L. Smith, which was made for the benefit of the respondent herein as a third party creditor beneficiary, pursuant to the terms of the insurance contract.
The appellant asserts, among other things, that it obligated itself to defend any suit against the insured alleging bodily injuries and seeking damages on account thereof, and that it has the right to make such investigation, negotiation or settlement of any claim or suit as it deems expedient, and it asserts that the insured, following the accident with the respondent, represented to the appellant as to how the accident between the assured and the respondent had occurred, and that he later changed such statement with respect to the facts, thereby misleading and preventing the appellant from exercising its right to negotiate and settle respondent's claim. The appellant further alleged that the insured violated the contract of insurance by assuming liability to the respondent. In brief, the appellant alleges in its answer that the assured violated the terms and provisions of the policy of insurance by his misstatement as to the facts concerning the cause and circumstances of the accident, by admitting his responsibility for the accident and, in effect, assuming obligation therefor, and by his failure to cooperate with the insurer in the defense of the action. The appellant has asserted these various defenses and refers to the provisions of the policy containing such limitations and conditions. The appellant also asserts that no action would lie against it unless as a condition precedent thereto the assured had fully complied with the terms of the policy.
The appellant also moved the court to require that W. Frank Smith, as administrator of the Estate of Otis L. Smith, be made a party defendant to this action so that a judgment in this cause will be binding upon the estate of the assured.
The respondent moved to strike the allegations of the answer containing the defenses heretofore outlined, and also to refuse the motion by the appellant to make the administrator a party to this action. The trial Judge granted the respondent's motion to strike the portions of appellant's answer heretofore referred to and also refused the motion by the appellant to make the administrator a party.
The appellant is before this Court on exceptions to the Order of the lower Court. The exceptions raise two questions: (1) Were the allegations stricken from the answer irrelevant, immaterial, redundant and evidentiary? (2) Should the administrator of the insured's estate have been made a party to the action?
In the case of Du Bose v. Bultman, 215 S.C. 468, 56 S.E.2d 95, 96, this Court says:
"An allegation is irrelevant when it has no substantial relation to the controversy. Lucas v. Garrett, 208 S.C. 292, 38 S.E.2d 18. The motion here is in the nature of a demurrer. Mason v. Williams, 194 S.C. 290, 9 S.E.2d 537. The question is whether the matter stricken from the answer constitutes a defense to the cause of action alleged in the complaint."
In the case of Alexander v. DuBose, 73 S.C. 21, 52 S.E. 786, 788, we find the following: