MILWAUKEE INSURANCE COMPANY
v.
McLEAN TRUCKING COMPANY.
No. 387.
Supreme Court of North Carolina.
April 18, 1962.*27 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 *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 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 wrongand 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, 371-372; Great American Insurance Co. of New York v. Modern Gas Co., 247 N.C. 471, 101 S.E.2d 389; Smith v. Pate, 246 N.C. 63, 97 S.E.2d 457; Burgess v. Trevathan, supra; Service Fire Insurance Co. of New York v. Horton Motor Lines, Inc., supra; Underwood v. Dooley, supra; Fireman's Fund Insurance Co. v. Rowland Lumber Co., 186 N.C. 269, 119 S.E. 362; Powell & Powell v. Wake Water Co., supra; Cunningham v. Seaboard Air Line R. R., 139 N.C. 427, 51 S.E. 1029, 2 L.R.A.,N.S., 921.
Plaintiff's one assignment of error is to the judgment. That raises the question whether an error of law appears on the face of the record proper. This includes the question whether the facts found by the judge are sufficient to support the judgment, and whether the judgment is regular in form. Such an assignment of error does not bring up for review the evidence upon which the findings of fact are based. In the absence of an exception to the findings of fact, the findings of fact are presumed to be supported by the evidence, and are binding on appeal. Webb v. Gaskins, 255 N.C. 281, 121 S.E.2d 564; City of Goldsboro v. Atlantic Coast Line R. R., 246 N.C. 101, 97 S.E.2d 486; Suits v. Old Equity Life Insurance Co., 241 N.C. 483, 85 S.E.2d 602; Hoover v. Crotts, 232 N.C. 617, 61 S.E.2d 705; Strong's N.C. Index, Vol. 1, Appeal and Error, § 21, where numerous cases are cited.
Defendant states in its brief: "The insurance contract was between the insurance company and Miller and not with the shippers of the cargo." The insurance policy is not in the record. There is a recital in the judgment to the effect that it appears in this action plaintiff alleges it paid certain shippers of cargo by virtue of a policy of cargo insurance it issued to David V. Miller, d/b/a Interstate Motor Lines. There is nothing in the findings of fact to indicate the entire coverage provided by this policy. In the complaint in this action it is called a "Motor Truck Merchandise Floater" policy. Defendant states in its brief: "In the present case the insurance company paid only a portion of the loss sustained in the collision." This statement *29 in the brief finds no support in the findings of fact. Defendant further states in its brief: "It should also be noted that since Miller was a common carrier and a bailee for hire, his responsibility for the loss of cargo would be to the shippers, thus giving to him a special interest in recovery for its loss."
The general rule is that upon payment of a loss, pursuant to the terms of its contract of insurance, the insurer, or insurers in the case of coinsurance, are entitled to be subrogated pro tanto to any right of action which the insured may have against a third party whose negligence or wrongful act caused the loss. The right of an insurer to be thus subrogated to the rights of the insured may be either the right of conventional subrogationthat is, subrogation by agreement between the insurer and the insuredor the right of equitable subrogation, by operation of law, upon the payment of the loss. Smith v. Pate, supra; Underwood v. Dooley, supra; Lumberman's Mut. Insurance Co. v. Southern R. R., 179 N.C. 255, 102 S.E. 417; Cunningham v. Seaboard Air Line R. R., supra; 29A Am.Jur., Insurance, sec. 1719.
If the contract of insurance of plaintiff here covered the cargo alone, and if the plaintiff here, pursuant to the terms of its contract of insurance, has paid Miller and the owners of the cargo destroyed in the collision an amount that covers the loss in full prior to the trial of the case of Miller v. McLean Trucking Company and Oliver at 22 June 1959 Civil Term of Guilford Superior Court, High Point Division, Miller would have no right to recover in that trial for such loss, because "every action must be prosecuted in the name of the real party in interest," G.S. § 1-57, and under such circumstances plaintiff would be "the real party in interest," and a recovery for such loss must be in a suit brought by plaintiff in its name to enforce its right of subrogation of the indivisible cause of action against the alleged tortfeasors. Under such circumstances, if such existed, Miller in his trial could only take a voluntary nonsuit or suffer an involuntary nonsuit. "Where, however, the insurance company has fully compensated its insured for all damages he has sustained, the insured no longer is the real party in interest. No right of action vests in him. The insurer is the real and only party interested in the result and hence the only party that can maintain the action." Smith v. Pate, supra.
The trial judge's so-called finding of fact, "Miller in the prior action chose to prosecute only a part of his claim, notwithstanding he then had legal title to and introduced evidence concerning the entire claim," is a conclusion of law or a mixed finding of fact and conclusion of law.
We are of opinion, and so hold, that the findings of fact in the judgment are insufficient to support the judgment dismissing plaintiff's action.
Plaintiff has filed in this Court a motion to amend its complaint by striking therefrom Paragraph XI, and inserting in lieu thereof the following:
"As a result of said collision and the ensuing damage to the cargo being transported by the plaintiff's insured, David V. Miller, plaintiff was called upon to pay and paid on behalf of David V. Miller to the shippers of said cargo the entire loss sustained by said shippers as a result of the destruction of said cargo, to-wit, One Thousand Six Hundred Sixty One and 75/100ths ($1661.75) Dollars; the shippers of said cargo, namely Furniture Dealers Supply Company and Ideal Chair Company, Incorporated, were the owners of said cargo and David V. Miller neither had nor owned any interest in said cargo; payment under its policy of cargo insurance was made by plaintiff to Furniture Dealers Supply Company by its draft Number M24631 dated January 7, 1959 in the sum of $1536.00 payable to `David B. [sic] *30 Miller t/a Interstate Motor Lines, and Furniture Dealers Supply Company' and to Ideal Chair Company, Incorporated by its draft Number M66992 dated January 7, 1959 in the sum of $125.75 payable to `David B. [sic] Miller t/a Interstate Motor Lines and Ideal Chair Company, Incorporated' (copies of said drafts and the endorsements thereto being hereto attached and incorporated by reference herein); the policy of cargo insurance whereunder said losses were paid contained no deductible provision and plaintiff is the only real party in interest with respect to an action to recover damages for the destruction of said cargo."
This motion is denied without prejudice. Plaintiff may apply to the trial court below, pursuant to the provisions of G.S. § 1-163, for permission to so amend his complaint.
The judgment below is
Reversed.