Wallace v. Nationwide Mutual Insurance

Brailsford, Justice.

As I read the circuit order, which Justice Littlejohn proposes to adopt as the opinion of this Court, it limits plaintiff’s recovery in this contract action against her intestate’s insurance carrier to $1,500.00, on the theory that this result is required by the decision of this Court in Price v. Richmond & Danville R. R., 33 S. C. 556, 12 S. E. 413 (1890), followed in Rish v. Seaboard Air Line Ry., 106 S. C. 143, 90 S. E. 704 (1916).

The Price case was in tort for the wrongful death of the victim who, prior to his demise, had settled with the wrongdoer for his injury. The court denied recovery upon the ground that by the terms of the statute (Sec. 10-1951, Code of 1962) the administratrix could only recover in those cases in which the injured party could have recovered if he had survived. Since the release would have barred recovery by the victim in his lifetime, the court held that the action for wrongful death did not lie. There is no reason here to debate the merits of this decision.

In this case, plaintiff has already recovered judgment against the wrongdoer for the death of her intestate. Quite clearly, the tort-feasor, who had made no settlement with the injured party, could not have defended the action on the rationale of the Price case. I am at a loss to perceive how the insurance company, against which no rights need be, nor are, asserted under the wrongful death statute, can do so.

On this record, plaintiff is entitled to recover to the full extent of defendant’s contractual obligation to pay unless the defendant, by contract with the intestate, has been absolved of liability in excess of $1,500.00. The written promise of the intestate, upon which the defendant relies as a release, is no more than a conditional agreement to settle for $1,500.00 his claim under the uninsured motorist clause of his policy for “property damage and bodily injury.” I cannot illuminate by argument what the words of the instrument make plain — the agreement relied upon simply does not modify the carrier’s obligation with respect to this claim, founded upon a judgment for damages for wrongful death, as to which the intestate contracted only by the insuring agremeent.

The foregoing opinion, written in dissent, having been concurred in by a majority, becomes the opinion of the Court. Accordingly, the judgment appealed from is reversed and the case remanded for further proceedings consistent herewith.

Reversed and remanded.

Lewis and Bussey, JJ., concur.