Travelers Indem. Co. v. Moore
| Decision Date | 24 January 1947 |
| Citation | 304 Ky. 456,201 S.W.2d 7 |
| Parties | TRAVELERS INDEMNITY CO. v. MOORE. |
| Court | Kentucky Court of Appeals |
As Modified and Extended on Denial of Rehearing March 28, 1947.
Appeal from Circuit Court, Washington County; W. H. Spragens, Judge.
Action by the Travelers Indemnity Company against Randall Moore to recover amount paid by plaintiff to its insured for damage to her automobile in collision with defendant's truck. From a judgment dismissing its petition upon failure to plead further after demurrers thereto had been sustained, plaintiff appeals.
Judgment reversed with directions.
Polin & Polin, of Springfield, and Doolan, Helm Stites & Wood, of Louisville, for appellant.
C. E Rankin, of Harrodsburg, and R. L. Wathen, of Springfield, for appellee.
Prior to August 16, 1944, Mrs. Elizabeth Frances Grundy owned a Buick automobile and on that day she procured an indemnity policy from the appellant, and plaintiff below, The Travelers Indemnity Company, whereby it agreed to indemnify her against loss or damage which she might sustain by injury to her automobile but the indemnifying policy did not cover personal injuries that she might sustain from the same cause producing injury and damage to her automobile.
On the day above mentioned and while the indemnifying policy was in full force and effect a Chevrolet truck owned by defendant and appellee, Randall Moore--while being driven by an employee of the owner--collided on a public highway with Mrs. Grundy's automobile in which she was traveling, and which was driven by her husband, Hugh L. Grundy. The collision damaged Mrs. Grundy's automobile to the amount of $848, and she sustained quite severe personal injuries.
On September 13, 1944, appellant, the insurer, paid to Mrs. Grundy, in compliance with the obligation of its policy issued to her, $848 damage to her automobile and at the same time took from her a subrogation receipt in compliance with the terms of the indemnifying policy, whereby she transferred her claim for damages to her automobile to the appellant as her insurer.
On January 17, 1945, Mrs. Grundy sued appellee, Moore, to recover from him damages for personal injuries she sustained but in which action she neither sought to recover, nor did recover any damages to her automobile. She recovered a judgment against defendant in that action, but the amount of it, or whether or not it has been paid, does not appear in this record. On July 26, 1945, this action was filed by appellant, and plaintiff, in the Washington circuit court against Moore to recover from him the amount of $848 which it paid Mrs. Grundy for damages to her automobile, which it alleged in its petition it had the right to do as subrogee under the terms of its policy, fortified by the subrogation receipt issued by Mrs. Grundy. Appellee as defendant filed both a special and a general demurrer to appellant's petition, both of which the court sustained, and upon plaintiff failing to plead further its petition was dismissed, to reverse which it prosecutes this appeal.
The court in its order sustaining the demurrers to the petition gave no reason for sustaining either of them, but counsel for both parties in their briefs filed on this appeal agree that the ground for the court's order was and is that the facts above recited--all of which was alleged in the petition--did not confer the right of action on plaintiff, since it involved the splitting of the original cause of action in Mrs. Grundy to recover her entire damages to her automobile and that sustained by her personally, which the court concluded could not be done, so as to vest a separate and independent right of action in plaintiff as assignee of the damage sustained to her automobile. The supposed ground for sustaining the general demurrer as argued by appellee's counsel was that since the court held that the appellant could not maintain the action in its name and, since the owner of the damaged property could not split her cause of action either directly or indirectly, the judgment in her favor against appellee for the amount of her personal damages was a bar to another action by either the appellee or her insurer to recover for damages to her personal property, which should have been included in Mrs. Grundy's action against appellee. The correctness of such conclusion by the trial court presents one of the questions for our determination.
The supposed ground for sustaining defendant's special demurrer, i. e., the contention that plaintiff obtained no right to maintain a separate action as subrogee to the claim for damage to the property covered by its risk, has been too often adversely held by this, and other courts, to require any extended discussion of that question. Three of our later cases so holding are: New York Underwriters Insurance Co. v. Louisville & N. R. R. Co., 285 Ky. 561, 148 S.W.2d 710; Remedial System of Loaning v. New Hampshire Fire Insurance Co., 227 Ky. 652, 13 S.W.2d 1005, and Aetna Life Insurance Co. v. Roper, 243 Ky. 811, 50 S.W.2d 8. Those cases involved the right of the insurer to be subrogated to the right of the insured against a tort-feasor producing the loss, followed by its right to maintain an action against the tort-feasor. We need not stop to analyze the various reasons given for the creation of the right of subrogation in the insurer--followed by its right to maintain an action against the tort-feasor--since the question is firmly settled in this jurisdiction, as well as in practically all other jurisdictions throughout the country. The court therefore ruled erroneously in sustaining the special demurrer to the petition, if it did so on the supposed ground above stated, which is the one that counsel for appellee says was true.
The second ground involves the questions, whether or not, in the circumstances and facts of this case as hereinbefore set out, a single cause of action for damage sustained by an insured which was produced by a tort-feasor, when there is more than one item of damage sustained (only one of which was assigned to an insurer) may indirectly split his cause of action by transferring the right--through the right of subrogation--to an insurance company who has issued a policy on one of the items of damages, be sustained so as to create a separate and independent right of action by the subrogee upon satisfaction of the obligations of his or its policy against the tort-feasor for the amount it was compelled to pay under its insurance contract?
Involved in that ground is the question, whether an action and the recovery of judgment by the insured against a tort-feasor for only a part of his damage for which he held no indemnity contract is or is not res judicata and a consequent bar against the subrogee in any proceedings that he or it might employ in an effort to enforce his subrogated rights as insurer of only part of the damage sustained by plaintiff?
It does not appear to be disputed that one sustaining an injury with consequent damage consisting of more than one item of damage may not split his single cause of action by maintaining in his name separate suits against the same tort-feasor for each item of damage sustained. As stated in briefs of counsel the leading case in this jurisdiction so determining is Cole's Adm'x v. Illinois Cent. R. Co., 120 Ky. 686, 87 S.W. 1082. A number of other domestic ones involving the same question have followed the well-settled rule announced in that case, and for which reason we do not feel called upon to further discuss such well-settled rule against the right of a damaged plaintiff to split his single cause of action for one item of damages sustained by him by a tort-feasor, and to later maintain an independent action against the same defendant to recover the assigned item produced by the same tort. The reason for such declared rule is that it is the duty of a plaintiff to assert his entire cause of action resulting from a single tort, and upon failure to do so he, in effect, renounces his right to recover other items of damages in subsequent actions.
However, that rule does not rest on the exact facts of this case. Nevertheless, a majority of courts have determined that, since the victim of the single tort may not split his cause of action against the tort-feasor to recover for consequent damages produced, he (the victim) likewise may not indirectly do so by agreeing to and actually transferring his right to recover damages sustained to one of several items pursuant to an insurance contract indemnifying him against damages so produced to that particular item. We say that the majority of courts so hold as will be seen by the text in 1 A.J. 494, sec. 114 and annotations in 64 A.L.R. 668, as well as in 140 A.L.R. 1241. The referred to text of A.J., after stating the general rule to be as indicated, says this, in the same section: . That volume contains a 1946 supplement, and on its pages 30 and 31 the section is rewritten so as to bring it up to date.
The annotator in 64 A.L.R. also says that: 'An exception to the rule that a single tort causing injury to a person and to his property constitutes but one cause of action, which cannot be split, is presented in several cases involving subrogation under insurance...
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