Farmer v. Union Ins. Co. of Indiana

• Decision Date: 07 March 1927
• Docket Number: 26297
• Citation: 111 So. 584,146 Miss. 600
• Court: Mississippi Supreme Court
• Parties: FARMER v. UNION INS. CO. OF INDIANA. [*]

111 So. 584

146 Miss. 600

FARMER v. UNION INS. CO. OF INDIANA. ^[*]

No. 26297

Supreme Court of Mississippi

March 7, 1927

Division A

1 ACTION. Injury to person and automobile struck by train constitutes single cause of action, and cannot ordinarily be split. Injury resulting to person and to automobile when struck by train constitutes a single cause of action, and can only be split into more than one cause of action in exceptional cases for conserving ends of justice.

2 INSURANCE. Insurer held released from liability on policy after insured released railroad from liability for injury to automobile. When insured released railroad company from liability for injury to automobile, thereby destroying right of subrogation of insurer in accordance with conditions of policy, insurer was there by released from liability thereon.

3 EVIDENCE. Judicial records import unerring verity, and are conclusive as to existence, date, and legal consequences.

Judicial records, required by law to be kept, import unerring verity, and are conclusive evidence against all the world as to their existence, date, and legal consequences.

4. JUDGMENT. If insured, in settling suit against railroad, intended to reserve right of action for insurer against railroad, judgment should so recite.

If insured, in settling with railroad for damages to person and automobile, intended to reserve right of action for insurer against railroad in accordance with subrogation provided in policy, judgment should have so recited.

HON. S. F. DAVIS, Judge.

APPEAL from circuit court of Leflore county, HON. S. F. DAVIS, Judge.

Suit by J. H. Farmer against the Union Insurance Company of Indiana. Judgment of dismissal, and plaintiff appeals. Affirmed.

Judgment affirmed.

Kimbrough, Tyson & Kimbrough, for appellant.

I. The court erred in overruling the demurrer of plaintiff to the special plea of defendant for the reason that said plea did not allege that there was any right of recovery by said Farmer against the Yazoo & Mississippi Valley Railroad Company for the loss by fire of the automobile and did not allege that there was a liability on the part of that railroad company for such loss. That such an allegation is necessary would appear from 26 C. J. 459; Parkhurst Davis Merc. Co. v. Merchants Underwriters, 86 N.E. 1062.

II. The second assignment of error is to the effect that the court below erred in sustaining the demurrer of the appellee to the replication filed to its special plea by the appellant, J. H. Farmer.

Under the facts as stated in the replication, the defense of appellee insurance company interposed by its special plea, to the effect that its right of subrogation had been destroyed, was completely answered and was so entirely sufficient in law as should have rendered it impregnable to the demurrer which the lower court erroneously sustained. The replication stated facts that brought the case of appellant, Farmer, within the operation of that principle of law which is clearly established by all authorities and under which the right of subrogation of the insurer is left intact. 14 R. C. L. 1405, paragraph 568. A leading case enunciating this principle is that of Connecticut Fire Ins. Co. v. Erie Ry. Co., 29 Am. Rep. 171. See, also, Ins. Co. of North America v. Fidelity Title & Trust Co., 2 L. R. A. 586 (Penn., 1889); Brown v. Vermont Mut. Fire Ins. Co., 29 L. R. A. (N. S.) 698 and note; notes to Fire Ass'n v. Wells, Ann. Cas. 1917-A 1298; Atchison R R. Co. v. Home Ins. Co., 53 P. 459.

The foregoing cases clearly establish the doctrine that when in a settlement with a tort-feasor an insured reserves his right to proceed against an insurance company in which he has a policy to cover part of the loss occasioned by the tort-feasor, the right of subrogation in behalf of the insurance company is not destroyed.

R. C. McBee, for appellee.

I. The demurrer to the special plea was properly overruled. The special plea and the exhibits thereto show conclusively that Farmer recovered a final judgment for three thousand dollars against the railroad company for personal injuries received in the same accident in which his car was burned, "which judgment the said railroad company thereafter satisfied and paid." Can Farmer now sue and recover from the railroad company the value of his car? We submit that he cannot. Kimball v. Railroad Co., 94 Miss. 396.

In this case the plaintiff split his cause of action. This is not permissible. In an action of tort where one sustains personal injuries and at the same time damages to his property by the same tortious act, but one cause of action is given. Kimball v. L. & N. R. R. Co., 94 Miss. 396, 48 So. 230; Home Ins. Co. v. Tate Merc. Co., 78 So. 709.

Not being able to recover against the railroad company, he cannot comply with the subrogation clause of the policy of insurance. Packham v. German Fire Ins. Co., 91 Md. 515, 80 A. S. R. 461. This case is in harmony with the view of this court and of the supreme court of the United States. Freed v. Am. Fire Ins. Co., 90 Miss. 72, 43 So. 947; Home Ins. Co. v. Hartshorn, 129 Miss. 282.

II. The demurrer to the replication was properly sustained. The procedure had in this case is that required by law. Lackey v. R. R. Co., 102 Miss. 339, 59 So. 97; Oliver v. Miles, 110 So. 666.

The replication says that when this agreement was made between Farmer and the railroad company that Farmer stated his reasons for the conditions mentioned; that is, that he agreed to the entry of a judgment for three thousand dollars "only upon the express condition that his declaration be amended, as it was, so as to eliminate therefrom any claim against said railroad company for damages to his said automobile."

We say that Farmer cannot here plead any such conditional agreement, because he did not incorporate it anywhere in the proceedings in his case against the railroad company. He cannot plead that the judgment was a conditional one as long as the judgment is valid and outstanding, for the reason that on its face the judgment does not show any such conditional agreement whatsoever. To prove such an agreement would necessarily mean attacking the judgment collaterally. 34 C. J. 521 and 506; 22 C. J. 1077; Clark v. State, 100 Miss. 751, 57 So. 209; Panola County v. Carrier, 92 Miss. 148.

If Farmer had settled his claim with the railroad company and merely executed a release reserving in that release his right against the insurer, we would have had a different situation, but that is the very thing he did not do; hence, Connecticut Fire Ins. Co. v. Erie Ry. Co., 29 Am. Rep. 171, and other cases cited, are not in point. Brown v. Vermont Mut. Fire Ins. Co., 29 L. R. A. (N. S.) 698, is authority for the position we take here.

In the present case there was no release, nor are court proceedings in form contractual. The method used by Farmer and the railroad company to close their controversy was that of a formal court proceeding. They agreed to a judgment and had that judgment formally placed upon the minutes of the court. Starling v. Sorrel, et al., 134 Miss. 782, 100 So. 10.

All the cases cited in appellant's brief in this case are based upon releases and none upon judgments. This clearly appears in the excerpt in his brief from Atchinson R. R. Co. v. Home Ins. Co., 53 P. 459.

OPINION

SMITH, C. J.

This is an appeal from a judgment sustaining a demurrer to a replication to a plea, and dismissing the suit.

The declaration is on an insurance policy issued by the appellee on an automobile owned by the appellant, which declaration alleges that the automobile was struck by a train of the Yazoo & Mississippi Valley Railroad Company while being driven across the tracks of the company by its owner, one of the results of which was that the automobile caught on fire and was so far consumed as to be a total loss. To this declaration, the appellee filed a special plea, alleging, in substance:

That the policy contained the following subrogation clause:

"And upon payment of any loss, damage, claim, or expense under this policy, the company shall be subrogated to the extent of such payment to all rights of recovery of assured against others for such loss, damage, claim, or expense, and the company shall be entitled, if it so desire, to institute, conduct, and prosecute, in the name of the assured, or in its own name, any claim of the assured for indemnity, damages, or otherwise against any third party."

That Farmer...