Milwaukee Ins. Co. v. McLean Trucking Co., 387

• Court: United States State Supreme Court of North Carolina
• Citation: 125 S.E.2d 25,256 N.C. 721
• Decision Date: 18 April 1962
• Docket Number: No. 387,387
• Parties: MILWAUKEE INSURANCE COMPANY, v. McLEAN TRUCKING COMPANY.

Page 25

125 S.E.2d 25 256 N.C. 721 MILWAUKEE INSURANCE COMPANY,
v.
McLEAN TRUCKING COMPANY. No. 387 Supreme Court of North Carolina. April 18, 1962

Haworth, Riggs, Kuhn & Haworth, by John Haworth, High Point, for plaintiff appellant.

Spry & Hamrick, by Claude M. Hamrick, Winston-Salem, for defendant appellee.

PARKER, Justice.

Plaintiff has only one assignment of error, and that is to the signing and entering of the judgment and to the judgment. Plaintiff has no exception to Judge Walker's findings of fact.

Judge Walker's judgment recites near its beginning: 'It appearing to the court that in this action the plaintiff seeks recovery of a sum of money, which plaintiff alleges it paid certain shippers of cargo by virtue of a policy of cargo insurance issued to one David V. Miller * * *, which cargo was alleged to have been destroyed in a collision between the motor vehicles of the said David V. Miller and the defendant, McLean Trucking Company. ' Plaintiff's complaint alleges it has 'paid on behalf of David V. Miller to the shippers of said furniture the entire loss sustained by said shippers as a result of the destruction of said cargo, to-wit, $1,661.75, and plaintiff is the only real party in interest with respect to an action to recover damages for the destruction of said cargo.'

So far as this appeal is concerned Judge Walker's crucial findings of what he terms facts, but which in reality are findings of fact and conclusions of law, are in substance: Miller in the prior action chose to

Page 28

prosecute only a part of his claim, notwithstanding he then had legal title to and introduced evidence concerning the entire claim. Plaintiff in this action is subrogated only to the rights of its insured Miller, and [256 N.C. 725] is in privity with him. If plaintiff were permitted to maintain its action arising out of the same collision upon the same facts relied on by Miller in the prior action, it would constitute a multiplicity of suits and the splitting of a single indivisible cause of action. The final judgment in Miller v. McLean Trucking Company constitutes a bar to the maintenance of the present action.

Where insured property is destroyed or damaged by the tortious act of another, the right of action accruing to the injured party is for an indivisible wrong--and a single wrong gives rise to a single indivisible cause of action. Burgess v. Trevathan, 236 N.C. 157, 72 S.E.2d 231; Service Fire Insurance Co. of New York v. Horton Motor Lines, Inc., 225 N.C. 588, 35 S.E.2d 879; 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; 1 Am.Jur.2d, Actions, sec. 127.

Where insured property is destroyed or damaged by the tortious act of another and the insurance paid the owner of the property 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 of the owner's indivisible cause of action against the tortfeasor. The rationale of this rule is, the insurance company in such case is entitled to the entire recovery in the action, and must be regarded as the real party in interest by virtue of G.S. § 1-57, which states explicitly 'every action must be prosecuted in the name of the real party in interest. ' Herring v. Jackson, 255 N.C. 537, 543, 122 S.E.2d 366,...