Mobley v. Bland & Pennsylvania Casualty Co.

This concurring opinion is written as complementary to the opinion of the Chief Justice.

The first question involved in this appeal is whether a domesticated foreign insurance company can be properly served by delivering a copy of the summons to one of its local agents in this State on a cause of action arising out of the State.

Judge Dennis held that jurisdiction of the appellant was obtained through service made upon appellant's local agent at Dillon and not by service of the papers as provided in Section 7964, Code of Laws of South Carolina, 1932, Volume III; further holding that this Section does not apply to this cause of action, because it arose out of the State. No appeal having been taken by respondent from this ruling it becomes the law of the case and it necessarily follows that if the service on the local agent is not good then jurisdiction of the appellant has not been acquired, and its motion to dismiss should be sustained.

In the case of Murray v. Sovereign Camp, W.O.W., 192 S.C. 101,5 S.E.2d 560, 562, as referred to and quoted from in the opinion of the Chief Justice, it was held: "We hold, therefore, in view of the history of the legislation above pointed out, and of the deliberate insertion by the Legislature, in the light of the facts before it, of the word ``shall' in the act of 1917, that service on foreign insurance companies as provided for in Section 7964 of the Code of 1932 is exclusive, and that service made in any other way upon such corporations is invalid. * * *"

In view of the fact that Section 7964 provides the exclusive method of service of process upon a foreign insurance company, it follows that Judge Dennis was in error in sustaining as valid the service of the summons upon appellant's local agent at Dillon.

The determination of the validity of service as prescribed in Section 7964 upon a domesticated foreign corporation, by delivering the summons to the Insurance Commissioner, on a cause of action arising out of the State, becomes unnecessary since respondent did not appeal from Judge Dennis' ruling in respect thereto, or ask for affirmance upon any additional ground. Burkhalter et al. v. Townsend, 160 S.C. 134,158 S.E., 221; Baker v. Hartford Fire Insurance Company,195 S.C. 373, 11 S.E.2d 434.

The second question is whether the complaint sets forth a joint cause of action against the appellant, which is determined by the subsidiary question whether the allegations thereof set forth a contract of indemnity against liability or a contract of indemnity against loss.

The complaint alleges: "That the defendant, Pennsylvania Casualty Company, issued and now has outstanding its policy or policies of insurance insuring its co-defendant, HowardBland, against loss from any liability imposed by law on the said Howard Bland for damages resulting through the operation of said trucks, or either of them." (Italics ours.)

The Court is not at liberty to consider the allegations in the affidavit supporting the attachment since this affidavit is not incorporated in the Transcript of Record, but we may assume that the complaint was considered to be amended by alleging that at the time of the collision Bland was operating his truck as a common carrier, as it so appears from Judge Dennis' original order. The fact that Bland was operating as a common carrier does not affect the situation. He is a resident of Georgia, and our statutes relating to common carriers have no application. The language of the complaint alleges "a contract insuring * * * Howard Bland, against loss from any liability imposed by law" which is a contract indemnifying Howard Bland against loss, and not a contract of indemnity against liability. It insures Bland against Bland's loss. The case of Cox v. Employers LiabilityAssur. Corporation, 191 S.C. 233, 196 S.E., 549, is authority for the proposition that a plaintiff may not unite in a complaint such a cause of action with a cause of action in tort against the owner and operator of the motor vehicle.

In Piper v. American Fidelity Casualty Company, 157 S.C. 106,154 S.E., 106, 108, the Court said: "From the terms of the act of 1925 and of the contract of insurance as set forth in the complaint, I think it is clear that the contract provides for indemnity against liability and not simply against loss. The act specifically requires ``liability' insurance, which shall be a policy ``insuring or indemnifying passengers * * * receiving personal injury by reason of any act of negligence' on the part of the insured; the contract binds the insurer to pay such an amount as the owner of the insured car may be held bound for, on account of bodily injury to any person, passenger, or other than the insured. The payment by the insured is not logically a condition precedent to his liability to the injured person, and consequently not so to the obligation to the company to him."

A consideration of this case, and of Benn v. Camel CityCoach Company, 162 S.C. 44, 160 S.E., 135, leads definitely to the conclusion that the Court construed the policies in the light of the statute, requiring motor carriers to procure liability and property damage insurance or surety bond for the benefit of passengers and the public receiving injuries through negligence by common carriers in the operation of their motor vehicles. The case of Andrews v.Poole, 182 S.C. 206, 188 S.E., 860, is not out of harmony with this conclusion, especially as explained in Cox v. EmployersLiability Assur. Corp., supra. The terms of the policy involved in that case were such as to make the insurance company liable to third persons apart from any statutory requirements as to furnishing liability insurance. The determination of the question in this case must be under commonlaw principles, unaided by statutory requirements. It does not appear in the record in this case that Georgia requires common carriers to furnish contracts against liability for the benefit of passengers and third persons. The language in the complaint is not susceptible of the interpretation that third parties are protected by the policy referred to. It is insurance against Bland's loss, not Bland's legal liability, to third persons.

The demurrer admits only the facts alleged in the complaint but not any factual or legal conclusions. It was obligatory upon the plaintiff to allege facts showing that the contract was one insuring persons damaged by the negligence of Bland or his agents in the operation of the trucks. The allegations of the complaint are not only insufficient to show that plaintiff was protected by the insurance, but on the contrary shows that it was insurance against Bland's loss resulting from legal liability to third persons that was indemnified against. Appellant had no right to have the terms of its policy of insurance considered on demurrer, and no inference can be drawn as to its terms, except those naturally arising from the allegations of fact in the complaint.

The third question involves the applicability of statutes of North Carolina that do not have any extra-territorial effect, and should play no part in the decision of this case. However, it is not amiss to comment that, under the statutes of North Carolina, the plaintiff would not be permitted to join in this case the causes of action against the appellant and Bland, owner of the motor vehicles involved.

For the reasons set forth in the discussion of the first two questions, the orders of Judge Dennis should be reversed, and the attempted service of process upon the appellant dismissed, and the demurrer to the complaint sustained.