Burgess v. Trevathan, 18

• Decision Date: 17 September 1952
• Docket Number: No. 18,18
• Citation: 72 S.E.2d 231,236 N.C. 157
• Parties: BURGESS, v. TREVATHAN.
• Court: North Carolina Supreme Court

Page 231

72 S.E.2d 231

236 N.C. 157

BURGESS, v. TREVATHAN.

No. 18

Supreme Court of North Carolina.

Sept. 17, 1952

Dan H. Jones, Farmville, and Marvin V. Horton, Jr., Farmville, for the plaintiff, appellant.

Lewis & Rouse, Farmville, and Rodman & Rodman, Washington, for the defendant, appellee.

ERVIN, Justice.

This appeal falls under the ban of the general rule that ordinarily an order allowing a motion for the joinder of an additional party is not appealable. In consequence, it must be dismissed. City of Raleigh v. Edwards, 234 N.C. 528, 67 S.E.2d 669; Colbert v. Collins, 227 N.C. 395, 42 S.E.2d 349; Service Fire Insurance Co. v. Horton Motor Lines, Inc., 225 N.C. 588, 35 S.E.2d 879; Morgan v. Turnage Co., 213 N.C. 425, 196 S.E. 307; Wilmington v. Board of Education, 210 N.C. 197, 185 S.E. 767; Barbee v. Cannady, 191 N.C. 529, 132 S.E. 572; Joyner v. Champion Fiber Co., 178 N.C. 634, 101 S.E. 373; Armfield Co. v. Saleeby, 178 N.C. 298, 100 S.E. 611; Etchison v. McGuire, 147 N.C. 388, 61 S.E. 196; Bernard v. Shemwell, 139 N.C. 446, 52 S.E. 64; Sprague v. Bond, 111 N.C. 425, 16 S.E. 412; Emry v. Parker, 111 N.C. 261, 16 S.E. 236; Sneeden v. Harris, 107 N.C. 311, 12 S.E. 205; Lane v. Richardson, 101 N.C. 181, 7 S.E. 710; White v. Utley, 94 N.C. 511.

While this course must be pursued, we will nevertheless exercise our discretionary power to express an opinion upon the question which the plaintiff attempts to raise by his fragmentary and premature appeal. Penn-Allen Cement Co. v. Phillips, 182 N.C. 437, 109 S.E. 257; Bargain House v. Jefferson, 180 N.C. 32, 103 S.E. 922; Taylor v. Johnson, 171 N.C. 84, 87 S.E. 981; Jester v. Baltimore Steam Packet Co., 131 N.C. 54, 42 S.E. 447; State v. Wylde, 110 N.C. 500, 15 S.E. 5; Guilford County v. Georgia Co., 109 N.C. 310, 13 S.E. 861.

This question is as follows: Where the owner of an insured automobile brings an action for damage to his automobile and injury to his person against the supposed tort-feasor whose negligence allegedly caused the damage and injury, may the court, on motion of the supposed tort-feasor, bring into the case as an additional party an insurance company which has indemnified the owner for only a part of the damage to the automobile?

Counsel for plaintiff insist with much earnestness that an insurance company which pays the insured only a part of his loss is not a proper party to an action brought by the insured against the tort-feasor causing the loss, and that consequently the question ought to be answered in the negative. Upon the hearing of the motion in the court below, the presiding judge rejected this contention and answered the question in the affirmative. In our opinion, the ruling of the judge is correct.

When all is said, it is evident that counsel for the plaintiff, whose industry and zeal merit commendation, have misinterpreted certain decisions of this court, and have been thus induced to take an unsound position on the question under consideration. The decisions, which are cited below, establish these indisputable propositions:

1. Where insured property is destroyed or damaged by the tortious act of another, the owner of the property has a single and indivisible cause of action against the tort-feasor for the total amount of the loss. Service Fire Insurance Co. v. Horton Motor Lines, Inc., supra; Underwood v. Dooley, 197 N.C. 100, 147 S.E. 686, 64 A.L.R. 656; Powell & Powell v. Wake Water Co., 171 N.C. 290, 88 S.E. 426, Ann. Cas.1917A, 1302.

2. When it pays the insured either in full or in part for the loss thus occasioned, the insurance company is subrogated pro tanto in equity to the right of the insured against the tort-feasor. Royal Insurance Co. v. Atlantic Coast Line R. R., 193 N.C. 404, 137 S.E. 309; Lumbermen's Mut. Ins. Co. v. Southern R. R., 179 N.C. 255, 102 S.E. 417; Stuyvesant Insurance Co. v. Reid, 171 N.C. 513, 88 S.E. 779; Powell & Powell v. Wake Water Co., supra; Fidelity Insurance Co. v. Atlantic Coast Line R. R., 165 N.C. 136, 80 S.E. 1069; Cunningham v. Seaboard Air Line R. Co., 139 N.C. 427, 51 S.E. 1029, 2 L.R.A., N.S., 921. See, also, in this connection: 29 Am.Jur., Insurance, section 1336, and 46 C.J.S., Insurance, § 1209.

3. Where the insurance paid the insured covers the loss in full, the insurance company, as a necessary party plaintiff, must sue in its own name to enforce its right of subrogation against the tort-feasor. This is true because the insurance company in such case is entitled to the entire fruits of the action, and must be regarded as the real party in interest under the statute codified as G.S. § 1-57, which specifies that 'Every action must be prosecuted in the name of the real party in interest '. Service Fire Insurance Co. v. Horton Motor Lines, Inc., supra; Underwood v. Dooley, supra; Fireman's Fund Insurance Co. v. Rowland Lumber Co., 186 N.C. 269, 119 S.E. 362; Powell & Powell v. Wake Water Co., supra; Cunningham v. Seaboard Air Line R. Co., supra; Hamburg-Bremen Fire Insurance Co. v. Atlantic Coast Line Railroad Co., 132 N.C. 75, 43 S.E. 548.

4. Where the insurance paid by the insurance company covers only a portion of the loss, the insured is a necessary party plaintiff in any action against the tort-feasor for the loss. The insured may recover judgment against the tort-feasor in such case for the full amount of the loss without the joinder of the insurance company. He holds the proceeds of the judgment, however, as a trustee for the benefit of the insurance company to the extent of the insurance paid by it. The reasons supporting the rule stated in this paragraph are that the legal title to the right of action against the tort-feasor remains in the insured for the entire loss, that the insured sustains the relation of trustee to the insurance company for its proportionate part of the recovery, and that the tort-feasor can not be compelled against his will to defend two actions for the same wrong. Lumbermen's Mut. Ins. Co. v. Southern R. R., supra, 179 N.C. 255, 102 S.E. 417; Powell & Powell v. Wake Water Co., supra; Fidelity Insurance Co. v. Atlantic Coast Line R. R., supra, 165 N.C. 136, 80 S.E. 1069. See, also, in this connection: 29 Am.Jur., Insurance, section 1358, and 46 C.J.S., Insurance, § 1211.

These things being true, the decisions cited furnish plenary support for the proposition that an insurance company indemnifying the insured for only a part of the loss is not a necessary party to an action brought by the insured against the tort-feasor to recover the full amount of the loss. But they are not authority for the plaintiff's contention that the insurance company in such case is not a proper party to such action. Indeed, two of them, to-wit, Service Fire Insurance Co. v. Horton Motor Lines, Inc., and Lumbermen's Mut. Ins. Co. v. Southern R. R., 179 N.C. 255, 102 S.E. 417, sanction by implication at least the observation of that great master of North Carolina procedural law, Professor Atwell Campbell McIntosh, that 'there would seem to be...