Be-Mac Transport Co., Inc. v. LarimoreBe-Mac Transport Co., Inc. v. Larimore
This is a personal injury action arising out of a motor car collision. Judgment was for plaintiff, and defendants appeal.
Plaintiff was a member of the fire department of the city of Tulsa. The collision occurred at a street intersection between a fire truck operated by plaintiff and a truck owned and operated by the defendant Be-Mac Transport Company, Inc. The collision was alleged to have occurred as a result of the negligence of the dеfendant’s driver in operating the truck at an excessive rate of speed and in not yielding the right of way to the fire truck at the intersection, all in violation of the city ordinances.
There was a charge of contributory negligence in oрerating the fire truck at an excessive rate of speed and in disregard of the safety of others.
The defendant American Fidelity & Casualty Company was joined in the action as insurance carrier of the transport company under a policy issued pursuant to
Defendants’ principal contention is that the joinder of the insurance carrier as a party defendant was improper since the transport company was engaged solеly in interstate commerce, and that the trial court erred in denying the motion of the insurance carrier to dismiss for misjoinder, and in holding that it was a proper party.
In this connection it is urged that the right as recognized in this state under
Ordinarily, in an action for personal injuriеs any unwarranted reference to defendant’s liability insurance in the presence of the jury is improper and considered highly prejudicial to defendant’s legal rights. Yoast v. Sims,
Defendants do not dispute the right to such joinder in the ordinary case against motor carrier, but say, as stated above, that the present action is not governed by the state statute, but controlled exclusively by the act of Congress aforesaid, and under the latter act the insurer cannot be joined with the motor carrier in an action for personal injuries. Grier v. Tri-State Transit Co., 36 Fed. Supp. (D.C.) 26.
It would seem that if the Federal Motor Carrier Act (1935) superseded
Congress has power to regulate commerce among the several states (art. 1, sec. 8, U. S. Const.). Pursuant to that power 'Congress has delegated to the Interstate Commerce Commission certain supervisory authority and regulatory powers over interstate motor carriers. 49 U.S.C.A. 301, et seq. Section 315 of the Code, supra, confers on the commission the power to make rules and regulations сoncerning the filing of bonds by the motor carriers and denies the carriers the right to operate without such bonds as will protect all persons and property against injury resulting from the negligent operation of motor vehicles.
But the power to regulate interstate commerce as delegated to Congress by the Constitution, supra, does not extend to every use to which an interstate carrier may employ the highways in the several states nor to every act done or committed by them in the course of their interstate transportation. And the Act of 1935 does not purport to deprive the states of their inherent right to regulate the use of their public highways in the interest of the public welfare. In McDonald v. Thompson,
*252 We fail to perceive any reason why the requirement of a bond or poliсy of insurance by the state for the protection of its citizens against the negligence of an interstate carrier would in any way conflict or interfere with, hamper, or impair the power of Congress to regulate commerce between the several states. But we are not called on here to express a definite opinion on that matter. It is not necessary to a decision in this case. Such statutes no more than incidentally involve interstate commerce where, as here, they bear a real and substantial relation to the public health and safety. Missouri, K. & T. Ry. Co. v. Williamson, 36 Fed. Supp. 607 (D. C. Okla.). The rule is there stated as follows:
“A state can in the exercise of its police power enact reаsonable measures in the interest of health, safety, and welfare of' its people, including employees of railroads, passengers on trains, and others, even though interstate commerce may be incidentally involved.”
In the last-cited case appears the following statement:
“In respect to the regulatory power of the state and the occasions for its exercise, the general subject of commerce has been divided into three separate and distinct classes. They are those in which the power of thе state is exclusive, those in which the state may act in the absence of legislation by Congress, and those in which the action of Congress is exclusive and therefore the state cannot act at all. Covington & Cincinnati Bridge Co. v. Kentucky, supra; Wеstern Union Telegraph Co. v. James,162 U. S. 650 ,16 S. Ct. 934 ,40 L. Ed. 1105 ; Southern Railway Co. v. Reid,222 U. S. 424 ,32 S. Ct. 140 ,56 L. Ed. 257 . The reasonable limitation of the length of trains in the interest of public safety falls within the second class. As to that class, the exercise of the paramount power of Congress is necessary to takе from the state its subordinate power to legislate.”
Defendants say that Congress has acted on the particular subject here involved by requiring liability insurance, and as a consequence the state statute no longer applies. Said statute may have been superseded so far as it applied to passengers or property moving in interstate commerce or even moving intrastaté on an interstate carrier. But the statute has not been superseded insofar as it rеlates to persons other than passengers. In Continental Casualty Co. v. Shankel, 88 Fed. 2d 819, it was held that a state may not require a carrier to furnish liability insurance covering persons and property being transported in interstate commerce. But the rule does not apply to persons other than passengers. In Brashear Freight Lines Inc. v. Hughes, 26 Fed. Supp. (D.C. Ill.) 908, it was held as follows:
“Provisions of Illinois statute requiring motor carriers to file sworn statement of ability to pay damages resulting from acсidents or bond guaranteeing payment of such damages and regulating hours of duty of operators have not been superseded by Federal Motor Carrier Act of 1935. Smith-Hurd Stats. Ill. c. 111 2/3, secs. 57-59a; Motor Carrier Act of 1935,49 U.S.C.A. secs. 301-327 .
“Provisions of Illinois statute requiring motor сarriers to file sworn statement of ability to pay damages resulting from accidents or bond guaranteeing payment of such damages and regulating hours of duty of operators are fair and reasonable and enforcement thereоf does not violate commerce, equal protection or due process clauses of Federal Constitution. Smith-Hurd Stat. Ill. c. 111 2/3, secs. 57-59a; U.S. C.A. Const. art. 1, sec. 8, cl. 3 and Amend. 14.”
To the same effect is Lowe v. Stoutamire,
We see in the Act of 1935 nothing to indicate an intention or purpose tо supersede or interfere with the power of the states to enact laws requiring insurance on the part of the interstate motor carriers to protect the people of the states. And we make no expression here as to whether an act of Congress attempting so to do would be valid as falling within its express constitutional powers.
Since the insurance policy was prop *253 erly required by the Corporation Commission and duly filed pursuant to statute, joinder of the insurance carrier was also propеr, and the trial court did not err in denying its motion to dismiss.
The joinder of the motor carrier and its insurer being proper in this case, the general rule against references to liability insurance does not apply.
Defendants rely on Grier v. Tri-State Transit Co., supra, as authority in support of their argument that the state statute was rendered inoperative by the act of Congress, and that the plaintiff’s remedy is governed by the latter act, which does not permit joinder of the motor carrier and its insurer.
It is noted, however, that the injured party in that case was an interstate passenger on defendant’s bus, and that the plaintiff attempted to join the insurance carrier as a party by virtue of its policy of insurance issued pursuant to the order оf the Interstate Commerce Commission, and not by reason of any policy deposited with the state authorities. In the attempted joinder plaintiff relied on the direct action statute of the state. The court held that such statute did not apply. Whether the decision was right or wrong we do not attempt to say. The action was based on an obligation created by Federal law alone, and therefore the case is not in point here.
Defendants say the verdict of $10,000 was excessive.
The record shows that plaintiff had рaid out approximately $1,200 for medical and hospital bills at the time of the trial; that he was 33 years of age, and had been in the employ of the fire department for ten years at a salary of $167.50 per month. There was conflicting testimоny of experts as to the likely duration of his disability. There was ample evidence in this regard to clearly indicate that plaintiff would never again be physically fit, by reason of the injury, to resume his employment. In our opinion this evidence was sufficient to warrant the recovery fixed by the jury.
The judgment is affirmed.