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WATTS v. BAKER ET AL.

November 6, 1958

KATE K. WATTS, RESPONDENT,
v.
CECIL C. BAKER AND CANAL INSURANCE COMPANY, INC., APPELLANTS.



The opinion of the court was delivered by: Moss, Justice.

November 6, 1958.

The respondent, Kate K. Watts, commenced this action in the Richland County Court for the recovery of damages for personal injuries alleged to have been sustained by her while she was riding as a passenger in a taxicab owned and operated by the appellant, Cecil C. Baker. The appellant, Canal Insurance Company, was joined as a defendant in the action, the respondent claiming a direct right of action against the insurance company and a right to join such as a defendant by reason of an insurance policy filed with the City of Columbia covering the taxicab involved, in accordance with the Ordinances of the City of Columbia.

The motion and the demurrer came on to be heard by the Honorable Legare Bates, Judge of the Richland County Court, and he issued an order requiring the respondent to make her complaint more definite and certain by setting forth in detail whether or not she claimed that the insurance policy referred to in the complaint was filed pursuant to the requirements of any Statute or Ordinance and, if so, by setting forth in detail the said Statute or Ordinance, and the provisions thereof. The demurrer filed by the appellants was overruled.

After the filing of the order of the County Judge, the respondent, in compliance with said order, amended her complaint by setting forth in full the Ordinance of the City of Columbia, requiring the operator of any taxicab to file with the City Clerk a bond or insurance policy covering the operation of each vehicle used as a taxicab. The appellants demurred to the complaint, as amended, on the ground that such amended complaint did not state facts sufficient to constitute a cause of action against the appellant, Canal Insurance Company, in that it appears upon the face of the complaint that the respondent was suing the insurance company under a liability insurance policy issued to the appellant, Cecil C. Baker, and that no cause of action existed under such policy of insurance until a final judgment is recovered against the appellant Baker. It is further asserted by the demurrer that since it does not appear upon the face of the complaint that the respondent has recovered a final judgment against the appellant, Baker, that there was a misjoinder of causes of action in said complaint. This demurrer was overruled by the County Judge and timely notice of intention to appeal therefrom to this Court was given.

The questions raised by the exceptions are whether the respondent has a direct cause of action on the insurance policy involved under the City Ordinance, and whether she has the right to join the insurer in an action against the insured, taxi owner, before obtaining final judgment against the taxi owner.

The Columbia City Ordinance, Section 36-6, entitled "Bond or Insurance Required", and the applicable provisions thereof, are as follows:

"Before any license is issued for the operation of a taxicab, the owner shall file with the city clerk a bond covering the operation of each vehicle and giving a security thereon in some indemnity or casualty company authorized to do business in the state, which bond shall be in the penalty of five thousand dollars covering injury to a single person, and in penalty of ten thousand dollars covering injury to more than one person in a single accident, and in the penalty of one thousand dollars covering injury or damage to property in a single accident. In lieu of such bond, such owner may file with the city clerk an insurance policy covering the operation of each vehicle in some indemnity or casualty company authorized to write such insurance and doing business in the state, in the penalties above provided with reference to persons or property. It shall be deemed a compliance with this section for the owner or operator of such vehicle to file with the city clerk a copy of such bond or such insurance policy properly certified by the company in which such bond or insurance policy is written, and in which the owner or operator of such vehicle has procured such bond or insurance policy in compliance with the provisions of this section * * *. The bond or policy shall stipulate that any person who may recover final judgment for damages, such judgment remaining unpaid for thirty days, shall have the right of action on such bond or policy in the event the owner of the taxicab is insolvent and does not pay the same within thirty days.

"No taxicab shall be operated upon or over the streets or public ways of the city unless it is adequately bonded or insured as provided above."

This Court has held where a Statute or Ordinance requires the filing of a policy of insurance, that such Statute or Ordinance becomes a part of the policy contract. Thompson v. Bass, 167 S.C. 345, 166 S.E. 346; Bryant v. Blue Bird Cab Co., 202 S.C. 456, 25 S.E.2d 489; Hutto v. American Fire & Cas. Ins. Co., 215 S.C. 90, 54 S.E.2d 523; Dobson v. American Indemnity Co., 227 S.C. 307, 87 S.E.2d 869.

It is provided in Section 58-1481 of the 1952 Code of Laws of South Carolina, that the Public Service Commission shall, in granting a certificate of public convenience and necessity, to a motor vehicle carrier of passengers or property for hire, require the applicant to procure and file with the Commission liability and property damage insurance in such amount as the Commission may determine, insuring or indemnifying passengers or cargo, and the public receiving personal injuries by reason of any act of negligence, and for damage of property to any person other than the insured. It appears by Rules 56 and 57, Vol. 7, of the 1952 Code of Laws, at page 804 et seq., that the Public Service Commission fixed a schedule of the amounts of insurance required to be filed by a motor carrier, depending upon the classification of such motor vehicle, and the Rule provides that the insurance company agrees to pay any final judgment recovered against the insured for bodily injuries to or death of any person resulting from the negligent operation, maintenance or use of the said motor vehicle.

It is provided in Section 10-702, of the 1952 Code of Laws of South Carolina, that:

"When an indemnity bond or insurance is required by law to be given by a principal for the performance of a contract or as insurance against personal injury founded upon tort the principal and his surety, whether on bond or insurance, may be joined in the same action and their liability shall be joint and concurrent."

This Court has held in numerous cases that where insurance is given as required by Section 58-1481 of the 1952 Code of Laws of South Carolina, that it was proper, under Section 10-702 of the Code, to join the insured and the insurance company as parties defendant in actions by third persons, based upon the negligence of ...


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