Aetna Ins. Co. v. Charleston & W.C. Ry. Co.

• Decision Date: 12 February 1907
• Citation: 56 S.E. 788,76 S.C. 101
• Parties: AETNA INS. CO. v. CHARLESTON & W. C. RY. CO.
• Court: South Carolina Supreme Court

56 S.E. 788

76 S.C. 101

AETNA INS. CO. v. CHARLESTON & W. C. RY. CO.

Supreme Court of South Carolina

February 12, 1907

Appeal from Common Pleas Circuit Court of Aiken County; Watts Judge.

Action by the Aetna Insurance Company against the Charleston & Western Carolina Railway Company. Judgment for plaintiff. Defendant appeals. Affirmed.

S. J Simpson, for appellant. Hendersons & Miller and Whaley, for respondent.

GARY A. J.

This appeal involves the doctrine of subrogation. The case was heard by his honor, the circuit judge, upon an agreed statement of facts.

It was admitted that plaintiff insurance company did on the 14th day of September, 1903, issue its policy in favor of Mrs. B. E Cozart, insuring her property for $1,000; that on the 22d day of September, 1903, this property, to the value of $1,950 was destroyed by fire originating within the limits of the right of way of the defendant railroad, in consequence of the acts of its agents and employés, and communicated by a spark from a locomotive engine of the defendant; that such policy was then of force; that upon proper proofs of loss being filed the plaintiff on the 28th of November, 1903, in accordance with the provisions of the policy, paid to Mrs. Cozart the sum of $1,000, and that thereupon she executed and delivered to plaintiff the subrogation receipt introduced in evidence, assigning to it all her interest and right of action by reason of said fire, to the extent of $1,000, and that later, to wit, on the 4th of January, 1904, the defendant railroad company paid to Mrs. Cozart $800 in full discharge of all claims she then had against the defendant. It is admitted that the claim of Mrs. Cozart against the defendant arose entirely under section 2135 of the Code of Civil Procedure of 1902. The plaintiff claims that under the admitted facts the defendant was liable to Mrs. Cozart for $1,950, the amount of loss sustained by fire, and that, as plaintiff paid Mrs. Cozart $1,000 of such loss, it became subrogated to her right of action against defendant to that amount.

The defendant contends (1) that this action cannot be maintained in the name of the insurance company as plaintiff, and that Mrs. Cozart alone had the right to bring suit; (2) that the doctrine of subrogation in insurance cases is dependent upon a wrongful act on the part of a person causing the loss of property by fire, and that this action cannot be maintained for the reason that there is no allegation or proof that the railroad was negligent in causing the fire. The objection that the plaintiff has not the right to maintain this action, and that it could only be brought in the name of the party insured, appears upon the face of the complaint. Therefore the proper remedy was by demurrer and not by answer. But, waiving this question, the objection cannot be sustained. The case of Ins. Co. v. Railroad, 41 S.C. 408, 19 S.E. 858, sustains the proposition that, when the plaintiff paid the policy of insurance to Mrs. Cozart, she became a trustee for its benefit, and thereafter the insurance company was the real party in interest, to the extent of $1,000. The plaintiff, therefore, had the right to bring the action, and, as there were no others beneficially interested, it was not necessary for them to be made parties. McCorkle v. Williams, 43 S.C. 66, 20 S.E. 744.

We proceed next to consider the question whether the fact that...