Grimes v. American Heating, Etc., Co.
| Decision Date | 06 November 1939 |
| Docket Number | 33842 |
| Court | Mississippi Supreme Court |
| Parties | GRIMES et al. v. AMERICAN HEATING, ETC., CO. et al |
APPEAL from chancery court of Stone county HON. D. M. RUSSELL Chancellor.
Suit between W. H. Grimes and others and American Heating, etc Co. and others. From the judgments rendered, W. H. Grimes and others appeal. Reversed and remanded.
Reversed and remanded.
Watkins & Eager, of Jackson, for appellants.
This suit can be prosecuted by and there can be a recovery by Washington County.
There would be no question but that this suit could be brought in the name of and/or by Washington County had there been no compensation of the Consolidated School District by the insurance companies.
Sheedy v. State, 152 Miss. 82, 118 So. 372; McKinnon v. Gowan Bros., 127 Miss. 545, 90 So. 243; 45, C. J. 1054; Sec 271, Code of 1930; Freeman v. Board, 66 Miss. 1; McKee v. Hogan, 110 So. 775, 145 Miss. 747; Coahoma County v. Knox, 173 Miss. 789, 163 So. 453; Fernwood Rural School Dist. v. Universal Rural School Dist., 154 So. 258; Storey v. Rhodes (Miss.), 174 So. 561.
Washington County is a proper party complainant after reimbursement, in that the defendant appellees cannot object to the fact that the county or subdivision of the county has been reimbursed.
Dietrich v. Peters (Ohio), 162 N.E. 753; 17 C. J. 929; Northeastern Nash Automobile Co. v. Bartlett, 136, A. 697.
This suit can be brought by the insurance companies.
The insurance companies as assignees of Leland Consolidated School District could bring suit in the name of Washington County.
Newman v. Gaul (Conn.), 129 A. 221; Westville Land Co. v. Handle (N. J.), 171 A. 520; In re Levin (N. Y.), 173 F. 119; Am. Trust & Savings Bank v. Turner, 80 So. 176.
The insurance companies could bring this suit as subrogees of Washington County.
60 C. J. 695, 831; Conway v. Strong, 24 Miss. 665; Box v. Early (Miss.), 178 So. 793; Prestridge v. Lazar, 95 So. 837; Grenada Bank v. Young, 139 Miss. 448, 104 So. 66; Woodyard v. Sayer (W.Va.), 110 S.E. 689, 87 A. L. R. 1497; Doty v. Enterprise Timber Co., 75 So. 602, 114 Miss. 872.
The insurance companies can sue as assignees of the trustees of the Leland Consolidated School in their own name.
47 C. J. 20; Sec. 505, Code of 1930; Quan Wye v. Chin Lin Hee (Cal.), 55 P. 783; Wing Ho v. Baldwin, 11 P. 565; Stover v. Winston Bros. Co. (Wash.), 55 P.2d 821; Smith v. N.Y.Cooperage Co., 71 N.Y.Supp. 479; Jefferson County Bank v. Townley (N. Y.), 54 N.E. 74.
The trustees of the Leland Consolidated School District can bring this suit.
We respectfully submit the individuals comprising the present board of trustees of the Leland School can bring this suit.
Sheedy v. State, 152 Miss. 82, 118 So. 372; Storey v. Rhodes, 174 So. 560, 178 Miss. 776; American Ins. Co. v. Newberry (Ala.), 112 So. 195; Commissioners of the Sinking Fund v. Walker, 6 How. 143, 38 Am. Dec. 433.
The board of trustees of the Leland Consolidated School can sue as an entity.
Ayres v. Board of Trustees, 134 Miss. 363; Nabors v. Smith, 135 Miss. 608; 56 C. J., par. 928; Sec. 6650, Code of 1930; State v. Taylor, 64 N.W. 548; White School House v. Post, 31 Conn. 240; School District v. Hamilton School District (Pa.), 77 A. 414; Hill v. Houk (Ala.), 46 So. 562; Windham v. Chisholm, 35 Miss. 531; Trustees v. Carter, 123 Miss. 457, 86 So. 289.
Shands, Elmore, Hallam & Causey, of Cleveland, for appellees.
Leland Consolidated School District is a governmental subdivision and agency of the State of Mississippi.
Sec. 6631, Code 1930, provides that boards of trustees may insure buildings against loss by fire and when necessary sue for collection of proceeds of insurance policies.
Boards of school trustees have no power to sue or be sued, except as stipulated in Sec. 6631, Code 1930.
Storey v. Rhodes, 178 Miss. 776, 782, 174 So. 560; Fernwood Rural School Dist. v. Universal Rural School Dist., 170 Miss. 35, 154 So. 268; Ayres v. Bd. of Trustees, 134 Miss. 363, 98 So. 847; Nabors v. Smith, 135 Miss. 608, 100 So. 177; Stringer et al. v. Roper, 152 Miss. 559, 120 So. 460; Miss. Centennial Exposition Co. v. Luderbach, 123 Miss. 828, 86 So. 517; Miss. Livestock Sanitary Board v. Williams et al., 133 Miss. 98, 97 So. 523.
There is no express or implied authority to sue or to be sued.
Stringer v. Roper, 152 Miss. 559, 566, 120 So. 460; Morris v. Vandiver, 164 Miss. 476, 491, 145 So. 228; Blodgett v. Seals, 78 Miss. 522, 29 So. 852; Trustees, etc. v. Carter, 123 Miss. 457, 86 So. 289; Miss. Livestock Sanitary Bd. v. Williams, 133 Miss. 98, 97 So. 523.
In every cause of action complaining party must be competent to sue and must have a present existent actionable title or interest in cause of action.
Griffith's Chan. Practice, secs. 58, 169; American Book Co. v. Vandiver, 181 Miss. 518, 178 So. 598; Ex Parte Collins, 49 Ala. 69, 70.
Cause of action implies a right to bring suit and someone who has right to sue.
Patterson v. Patterson (N. Y.), 17 Am. Rep. 384, 387.
Trustees were acting as a board, not as individuals.
Trantham v. Russell, 171 Miss. 481, 488, 158 So. 143; McGaha v. Curlee, 176 Miss. 671, 680, 169 So. 694.
Insurance companies acquired no better right to sue than the trustees had and the trustees had none.
Sec. 6631, Code 1930, does not authorize school trustees to assign a cause of action.
School trustees may not sue in tort.
Question for decision is not one of incapacity to sue but the added question, who has been damnified.
Insurance companies are not equitable subrogees.
Insurance companies elected to accept contracts and are conventional subrogees.
Conventional subrogation is controlled by the agreement and the rights of the party granting the right of subrogation.
Conventional subrogee is bound by the terms of its contract.
Home Ins. Co. v. Hartshorn, 128 Miss. 282, 294, 91 So. 1; Trust Co. v. Peters, 72 Miss. 1058, 1070; Tallahatchie Compress Co. v. Hartshorn, 125 Miss. 662, 88 So. 278; Huntington v. The Advance, 72 F. 793, 800.
If appellants have any right, such rights are fixed by their contract for subrogation.
Uhrick v. Globe Surety Co., 166 S.W. 845, 847; Southwestern Surety Co. v. Casualty Co., 159 P. 788, 789.
Washington County and members of the board of trustees and the insurance companies are total strangers and were not acting under compulsion. Therefore, doctrine of equitable estoppel does not apply.
60 C. J. 713, 714; 5 Pomeroy (2 Ed.), 5184, secs. 2344 and 2347.
Equitable subrogation never arises until person claiming the right of equitable subrogation has actually paid the debt to the person to whose rights he demands to be subrogated.
Insurance companies have not paid one dime to Washington County or to the individual members of the board of trustees. Therefore, insurance companies cannot claim right of equitable subrogation as to Washington County and trustees.
McGee v. Leggett, 48 Miss. 143, 146; Dry Goods Co. v. Kelly, 80 Miss. 64, 66, 31 So. 808; 5 Pomeroy (2 Ed.) 5200, sec. 2350; 60 C. J. 720; Franklin Life Ins. Co. v. Rogers, 178 Miss. 518, 173 So. 418.
Board of trustees are not agent of board of supervisors. Therefore, payment to trustees was not payment to board of supervisors or Washington County.
Ayres v. Bd. of Trustees of Leake County Agricultural H. S., 134 Miss. 363, 98 So. 847.
If third person has no right of action, then insured acquired none by subrogation.
Jackson v. Boylston M. Ins. Co., 2 N.E. 103, 52 Am. Rep. 728; Phoenix Ins. Co. v. Erie & Western Transp. Co., 117 U.S. 312, 29 L.Ed. 873, 878; U.S. v. Am. Tobacco Co., 166 U.S. 469, 41 L.Ed. 1081, 1083; St. Louis Iron Mountain Ry. Co. v. Commercial Union Ins. Co., 139 U.S. 223, 315 L.Ed. 154, 157.
An assignor cannot assign that which he does not possess.
Universal Adj. Corp. v. Midland Bank, etc., 184 N.E. 152.
Subrogee and assignee must stand in shoes of their creditor.
6 C. J. S., page 723, sec. 35 and page 1160, sec. 102.
Board of supervisors and Washington County treated as one and the same party.
Nat. Surety Co. v. Bd. of Supervisors, 120 Miss. 706, 83 So. 80.
Insurance policies insure "Trustees of Leland Consolidated School." Therefore, if recovery should be had, money must be paid to the county.
Ayres v. Bd. of Trustees of Leake County Agricultural H. S., 134 Miss. 363, 98 So. 847.
If Washington County has right of action it is wholly independent of and disconnected with insurance policies.
If Washington County should recover, the county cannot pay proceeds to insurance companies.
Secs. 256, 258, 259, Code of 1930.
Washington County may only sue where the county or a part of the county or of its inhabitants are concerned and then only to vindicate a public right.
Sec. 271, Code 1930; Coahoma County v. Knox, 173 Miss. 789, 795, 163 So. 451.
Sec. 271, Code 1930, was not enacted to permit private individuals to sue in the name of counties.
Miss. Centennial Exposition Co. v. Luderbach et al., 123 Miss. 828, 86 So. 517.
The language of Sec. 271, Code 1930, excludes the right of county to sue for the benefit of private individuals or corporations. Rule "Expressio Unius Est Exclusio Alterius" applies.
American Oil Co. v. Wholesale Gro. Co., 138 Miss. 801, 104 So. 70.
When statute enumerates powers, then no other powers shall be implied.
Tepper Bros. v. Buttross, 178 Miss. 659, 174 So. 556.
Washington County is undertaking to assist insurance companies and is suing for exactly the amount of money which the insurance companies have paid to the board of trustees.
Argued orally by Elizabeth Hulen and W. H. Watkins, for appellant, and by Hugh F. Causey, for appellee.
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