Phillips v. Alston, 597

• Decision Date: 23 May 1962
• Docket Number: No. 597,597
• Citation: 257 N.C. 255,125 S.E.2d 580
• Court: North Carolina Supreme Court
• Parties: Landrum A. PHILLIPS and American Security Insurance Company v. James R. ALSTON.

Page 580

125 S.E.2d 580

257 N.C. 255

Landrum A. PHILLIPS and American Security Insurance Company v. James R. ALSTON.

No. 597

Supreme Court of North Carolina.

May 23, 1962

Tally, Tally, Taylor & Strickland by Nelson W. Yaylor, III, and Jesse M. Henley, Jr., Fayetteville, for defendant appellant.

No counsel contra.

RODMAN, Justice.

Defendant does not except to the facts found by the court. He merely excepts to the conclusions declared to result from the facts found. Illustrative: The court found defendant was operating his automobile 'at a greater rate of speed than was prudent under the circumstances and conditions then existing. ' No exception was taken to this finding. Based on the finding the court concluded defendant had violated the provisions of G.S. § 20-141(a). Defendant's first exception is to this conclusion. His exceptions 2, 3, 4, and 5 are similar in character.

Defendant says in his brief: 'There is no evidence or finding of fact by the court below to support the finding of negligence on the part of defendant or that any such negligence was the cause of the accident. ' In effect his argument is that the court should have nonsuited the case. The record does not disclose that such motion was made. The evidence was not included in the case on appeal and brought forward in the record. In the absence of exceptions, the findings are presumed to be supported by competent evidence and are binding on appeal. Stancil v. Stancil, 255 N.C. 507, 121 S.E.2d 882.

Defendant is without exception to support his assertion that the evidence shows as a matter of law that plaintiff was contributorily negligent. If such an exception had been taken we would be unable to pass on the merit of the exception because the evidence is not before us.

Defendant argues the release executed by Phillips is a bar to insurer's right to recover. Defendant is bound by the factual finding that the adjuster, who paid for and took the release, knew that insurer had paid Phillips $390 as it was obligated to do under its policy of insurance.

The question for decision is: Does the release taken by defendant's agent bar insurer's right to recover? The answer is no.

When an insurer of property pays the insured the sum fixed by the policy, he is, to the extent of the payment, subrogated to insured's claim against a tortfeasor who caused the damage. Winkler v. Appalachian Amusement Co., 238 N.C. 589, 79 S.E.2d 185. If the sum paid covers the entire loss, the insurer is subrogated to the entire right of action against the tortfeasor. It alone can maintain the action. Smith v. Pate, 246 N.C. 63, 97 S.E.2d 457; Cunningham v. Seaboard Airline R. R. Co., 139 N.C. 427, 51 S.E. 1029, 2 L.R.A.,N.S., 921.

When the sum paid is only partial compensation, the owner is a necessary party to an action against a tortfeasor. If he desires full compensation for his loss, he should bring the suit. If he refuses, insurer may sue, making the owner a party defendant. The tortfeasor is entitled to have the amount of damage determined in one action. Where only partial compensation is paid, insurer is not a necessary but a proper party. Burgess v. Trevathan, 236 N.C. 157, 72 S.E.2d 231; Smith v. Pate, supra.

While a tortfeasor is entitled to have the total damage ascertained in one action, he cannot, when he has knowledge of insurer's rights by virtue of its payment to the owner, defeat those rights by making payment to and taking a full release from the owner. The payment so made and release taken will be construed as a mere adjustment of the uncompensated portion of the...