Ex parte Phoenix Ins. Co.

• Decision Date: 11 May 1910
• Citation: 68 S.E. 21,86 S.C. 52
• Parties: Ex parte PH×NIX INS. CO. v. SOUTHERN RY. CO., CAROLINA DIVISION. MAYFIELD et al.
• Court: South Carolina Supreme Court

68 S.E. 21

86 S.C. 52

Ex parte PH×NIX INS. CO.

MAYFIELD et al. v. SOUTHERN RY. CO., CAROLINA DIVISION.

Supreme Court of South Carolina

May 11, 1910

On rehearing. Rehearing granted. Judgment reversed.

WOODS J.

In this case an original complaint appears at the beginning of the record under the title "Ex parte Ins. Co., In re Mrs Leda K. Mayfield v. Southern Ry. Co., Carolina Division." The complaint sets out the destruction of property of Mrs. Mayfield by fire, the liability of the Southern Railway Company for the resulting loss, the payment of insurance by the Ph nix Insurance Company, and its right of subrogation to the extent of the payment. The court received the impression from the caption that this complaint was filed on behalf of the insurance company, and this impression was confirmed by the appearance in the record of another complaint under the same caption called "Supplemental Complaint." With this understanding of the pleadings this court affirmed the judgment of the circuit court. A petition for rehearing has been filed, and we are now convinced that the first complaint printed in the record was in fact a complaint filed by Mrs Leda K. Mayfield, and that the only pleading filed by the Ph nix Insurance Company was the complaint improperly designated "Supplemental Complaint." This state of the pleadings is vital, and requires a change in the judgment of the court.

Mrs Leda K. Mayfield brought her action against the Southern Railway Company, Carolina Division, for the loss of certain property which she alleged was destroyed by fire communicated by sparks from the defendant company's locomotives. Her complaint set out that part of the loss had been paid by the Ph nix Insurance Company under its policy, and her demand was for judgment for the difference between the alleged value of the property lost and the insurance received. Afterwards the Ph nix Insurance Company filed what is termed in the record a "supplemental complaint," setting out more fully the facts upon which it claimed the right of subrogation. In the complaint judgment was demanded for $7,250, the entire alleged value of the property. The defendant answered this complaint by a general denial, and by the allegation that there was another action pending for the same cause of action. This complaint was entitled, "Ex parte Ph nix Ins. Co., In re Mrs. L. K. Mayfield and Ph nix Ins. Co. v. Southern Railway Co., Carolina Division. ...