Service Fire Ins. Co. of N. Y. v. Horton Motor Lines

• Decision Date: 21 November 1945
• Docket Number: 521
• Citation: 35 S.E.2d 879,225 N.C. 588
• Parties: SERVICE FIRE INS. CO. OF NEW YORK v. HORTON MOTOR LINES, Inc., et al.
• Court: North Carolina Supreme Court

35 S.E.2d 879

225 N.C. 588

SERVICE FIRE INS. CO. OF NEW YORK v. HORTON MOTOR LINES, Inc., et al.

No. 521

Supreme Court of North Carolina

November 21, 1945

Civil action by insurer to recover damages suffered by its insured as a result of an automobile-truck collision.

There was a collision between the automobile of one R. B. Medlin and a truck of defendant Horton Motor Lines, which has since been absorbed by defendant Associated Transport, Inc. The damage to the automobile was $463.50. The plaintiff, having issued its collision insurance policy on the automobile of Medlin, paid him $413.50. It now seeks to recover the said amount under the doctrine of subrogation. Negligence on the part of defendants is duly alleged.

Defendants demurred to the complaint for that 'the plaintiff, not having paid the entire loss, is subrogated only to the extent of the payment made by it. That the right of action for damages to said property is indivisible and the only right of action is in the owner of said property and that plaintiff has no right of action against these defendants.'

When the cause came on for hearing on the demurrer the plaintiff during argument thereon, moved the court for an order making Medlin, the insured owner of the automobile, a party to the action 'in order that there may be a full and final determination and adjudication of all matters involved in this controversy. ' The motion was allowed and an order was entered making said Medlin a party to the action and directing that summons issue. The court then overruled the demurrer and defendants excepted and appealed.

Helms & Mulliss, of Charlotte, for plaintiff-appellee.

Jones & Smathers, of Charlotte, for defendants-appellants.

BARNHILL Justice.

As a general rule the trial court has the discretionary power to make new parties, especially when necessary in order that there may be a full and final determination and adjudication of all matters involved in the controversy. G.S. ss 1-73, 1-163; Home Real Estate, Loan & Insurance Co. v. Locker 214 N.C. 1, 197 S.E. 555, and cases cited; Morgan v Turnage Co., Inc., 213 N.C. 425, 196 S.E. 307; City of Wilmington v. Board of Education, 210 N.C. 197, 185 S.E. 767; Goins v. Sargent, 196 N.C. 478, 146 S.E. 131.

Ordinarily such orders are not reviewable upon appeal. City of Wilmington v. Board of Education, supra; Choate Rental Co. v. Justice, 212 N.C. 523, 193 S.E. 817; Morgan v. Turnage Co., Inc., supra; Bernard v. Shemwell, 139 N.C. 446, 52 S.E. 64.

That the plaintiff alone, without the joinder of the owner, is not entitled to maintain the action does not alter the rule or limit the discretionary power of the judge.

In Lumberman's Mut. Ins. Co. v. Southern R. Co., 179 N.C. 255, 102 S.E. 417 each of five insurance companies had paid a proportionate part of the loss. Each entered an action against the alleged tortfeasor without the joinder of the insured, the legal holder of the claim, to recover. The defendant demurred and the demurrer was sustained. Thereupon the plaintiffs moved to consolidate the actions and to make the insured owner a party plaintiff. The motion was allowed. The court affirmed. holding that the latter order, in effect, reversed the ruling on the demurrer. That case is controlling here. See also Choate Rental Co. v. Justice, supra, and Home Real Estate, Loan & Insurance Co. v. Locker, supra.

When property upon which there is insurance is damaged or destroyed by the negligent action 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. Powell & Powell v. Wake Water Co., 171 N.C. 290, 88 S.E. 426, Ann.Cas. 1917A, 1302; 1 Am.Jur. 493. The whole claim must be adjudicated in one action. 1 Am.Jur. 481. See note 19 for numerous citations.

The cause of action abides in the insured through whom the insurer, upon payment of the insurance, must work out his rights. Powell & Powell v. Wake Water Co., supra.

If, however, the insured no longer has an unsatisfied claim, over and above the amount of insurance received, then the claim of the insurer represents the entire unsettled claim and it, being subrogated to the rights of the insured, may maintain an action without the joinder of the owner. Powell & Powell v. Wake Water Co., supra; Cunningham v. Seaboard Air Line R. Co., 139 N.C. 427, 51 S.E. 1029, 2 L.R.A., N.S., 921; Insurance Co. v. Atlantic Coast Line R. Co., 132 N.C. 75, 43 S.E. 548.

The complaint alleges that the value of the automobile before the collision was $600 and that immediately thereafter it was reasonably worth $136.50. This is tantamount to an allegation that Medlin sustained damages in the sum of $463.50. Plaintiff paid the owner $413.50. Does the complaint thus...