Farmers' Mercantile Co v. Seabd. Air Line Ry, (No. 9219.)

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: GAGE
• Citation: 102 S.C. 348,86 S.E. 678
• Docket Number: (No. 9219.)
• Decision Date: 21 October 1915
• Parties: FARMERS' MERCANTILE CO. et al. v. SEABOARD AIR LINE RY.

86 S.E. 678
102 S.C. 348

FARMERS' MERCANTILE CO. et al.
v.
SEABOARD AIR LINE RY.

(No. 9219.)

Supreme Court of South Carolina.

Oct. 21, 1915.

[86 S.E. 679]

Appeal from Common Pleas Circuit Court of Bamberg County; T. J. Mauldin, Judge.

Action by the Farmers' Mercantile Company and others against the Seaboard Air Line Railway. From an order of nonsuit, the plaintiffs the Continental Insurance Company and another appeal, and from a judgment in favor of defendant, the plaintiff the Girard Fire & Marine Insurance Company appeals. Reversed and remanded.

W. Anderson Olarkson and James H. Fowles, both of Columbia, for appellants.

Lyles & Lyles, of Columbia, and Harley & Best, of Barnwell, for respondent.

GAGE, J. The appeal is by three insurance companies from an order of nonsuit as to two, and from a judgment entered on a jury's verdict as to one.

The Farmers' Mercantile Company had a storehouse at Olar, a station on the defendant's road. The goods therein were alleged to be worth $6,500, or more. They were alleged to be insured against loss by fire in the three plaintiff insurance companies for an aggregate sum of $4,000. They were alleged to have been totally destroyed by a fire set out by the defendants' locomotive engine.

The insurance companies paid the total loss of $4,000 which they had underwritten to the Farmers' Company, but its loss was yet unsatisfied by $2,500. The policies of insurance contained the customary clauses by which the companies became upon payment of the policies subrogated to the rights of the insured against the wrongdoer.

The Farmers' Company sued for the entire loss of $6,500, and the insurance companies were joined as plaintiffs by reason of their having paid $4,000 of the entire loss, for which they were secondarily liable; and such joinder was conceded proper. The Ætna and the Girard Companies were nonsuited. The Continental got no mention by name in the verdict. The verdict was "for the Farmers' Mercantile Company the sum of $2,500." Soon after the verdict rendered the defendant paid the full recovery of $2,500 to the Farmers' Company, and the judgment was marked satisfied. So that the apparent outcome of the action is the settlement by the defendant of a proven $6,500 liability for $2,500. It was frankly admitted at the bar by counsel for the respondent that the recovery of $2,500 was only for the surplus loss over the amount of insurance. And the same counsel did not deny that the Ætna and the Girard Companies may yet sue for subrogation, but not the Continental.

A result like that reached by the court and jury...