David Gregory HERRING
v.
William Taft JACKSON.
No. 173.
Supreme Court of North Carolina.
November 1, 1961.*371 Dupree, Weaver, Horton & Cockman, Raleigh, for plaintiff, appellant.
Jordan, Wright, Henson & Nichols and William D. Caffrey, Greensboro, for defendant, appellee.
BOBBITT, Justice.
It is unnecessary to set forth with particularity the findings of fact and conclusions of law challenged by plaintiff's exceptions. In gist, the court found and held that the payment by Nationwide's draft of Curtis Jackson's judgment against plaintiff and the execution by plaintiff of the "Loan Receipt" was not, in fact, an actual loan by Nationwide to plaintiff but "was a subterfuge device employed by Nationwide, paying that which it was obligated to pay, in an effort to circumvent and subvert the provisions of North Carolina GS 1-57 and GS 1-240."
The "Loan Receipt," in express terms, obligates plaintiff to cooperate with Nationwide "to the end that all rights of contribution which he may now have or hereafter acquire, against any party whose negligence proximately caused and contributed to the injuries and damages sued for by Curtis Jackson in the above entitled action may be enforced." Plaintiff has nothing to gain or lose by the prosecution of this action. While instituted and prosecuted in plaintiff's name, this action was instituted and is prosecuted by Nationwide solely for Nationwide's benefit. The purpose of the "Loan Receipt" agreement, as set forth therein, is to confer upon Nationwide a right to enforce contribution. In our view, the crucial question is whether, under the agreed facts, a right of action for contribution now exists.
Where insured property is destroyed or damaged by the tortious act of a third party, and the insurance company pays its insured, the owner, the full amount of his loss, the insurance company is subrogated to the owner's (indivisible) cause of action against such third person. In such case, *372 the insurance company, as the real party in interest under G.S. § 1-57, may maintain such action in its name and for its benefit. Burgess v. Trevathan, 236 N.C. 157, 72 S.E.2d 231; Smith v. Pate, 246 N.C. 63, 97 S.E.2d 457; Southeastern Fire Insurance Co. v. Moore, 250 N.C. 351, 108 S.E.2d 618.
In cases involving loss of or damage to insured property, the owner's cause of action, if any, must be predicated upon allegations and findings that the tortious conduct of the third party was the proximate cause of such loss or damage. Thus, where an insured sustains collision damage, neither the insured nor the insurance company can recover against the third party if the insured's negligence was a proximate cause of the collision. In such cases, the right to recover presupposes the insured was not a joint tort-feasor. Here, automobile liability insurance, not property insurance, is involved.
At common law, as between joint tortfeasors, there was no right of contribution. Hayes v. City of Wilmington, 239 N.C. 238, 242, 79 S.E.2d 792, and cases cited. See Comment Note, "Contribution between negligent tortfeasors at common law," 60 A.L.R. 2d 1366. In this jurisdiction, the common law rule was modified by G.S. § 1-240 so as to provide for enforcement of contribution as between joint tort-feasors in accordance with its provisions.
If Herring and William Taft Jackson, as joint tort-feasors, proximately caused Curtis Jackson's injuries, Herring, had he discharged his legal liability to Curtis Jackson by use of his own funds, could have maintained an action against William Taft Jackson for contribution. However, under G.S. § 1-240, as construed by this Court, this rule, as stated by Higgins, J., is firmly established: "The insurance carrier who pays a joint tort-feasor's obligations to the injured party cannot force contribution from other tort-feasors." Squires v. Sorahan, 252 N.C. 589, 591, 114 S.E.2d 277, 279, and cases cited.
We are advertent to the diversity of decisions in other jurisdictions. In many jurisdictions, the common law rule is retained in its original vigor. 60 A.L.R. 2d 1373 et seq. In other jurisdictions, it has been modified by court decisions so as to permit contribution as between negligent joint tort-feasors. 60 A.L.R. 2d 1377. In other jurisdictions, including North Carolina, it has been modified by statute. 60 A.L.R. 2d 1368, Note 2.
In some jurisdictions, where the common law rule has been modified, either by court decisions or by statute, it is held that an insurance carrier of one joint tort-feasor, after having made settlement with the injured party, has the right to maintain an action for contribution against the other tort-feasor(s). Leitner v. Hawkins, 311 Ky. 300, 223 S.W.2d 988; Underwriters at Lloyds of Minneapolis v. Smith, 166 Minn. 388, 208 N.W. 13; Western Casualty & Surety Co. v. Milwaukee General Const. Co., 213 Wis. 302, 251 N.W. 491; Hawkeye-Security Ins. Co. v. Lowe Construction Co., 251 Iowa 27, 99 N.W.2d 421. Suffice to say, these decisions are in direct conflict with the established rule in this jurisdiction.
In Blair v. Espeland, 231 Minn. 444, 43 N.W.2d 274, 277, and in Aetna Freight Lines v. R. C. Tway Company, Ky., 298 S.W.2d 293, 62 A.L.R. 2d 480, cited and stressed by plaintiff, it was held that the insured was entitled to prosecute the action for the benefit of the insurer notwithstanding the insured's legal liability to the injured party had been fully satisfied with funds paid by the insurer under a "loan receipt" agreement such as that here involved.
In Blair, the factual situation was quite similar to that here considered. These excerpts from the opinion are significant: "The intent of the parties to the `loan receipt' agreement is clear. It was entered into because it enables the insured to bring the action in his own name and permits the insurer. who will benefit if a recovery is had, to remain hidden from view." Again: "* * * for strategic reasons, plaintiff's *373 insurer prefers not to have its name appear as a party litigant, * * *" Again: "The arrangement between plaintiff and his insurer cannot affect defendant financially. Therefore, he need not be concerned. There is no danger of more than one recovery. There seems, therefore, to be no legal basis for defendant's objections to the `loan receipt' agreement. Where defendant is not legally affected, he cannot interfere with the freedom of plaintiff and his insurer to contract, through the device of a `loan receipt' agreement, that the title to the cause of action against a wrongdoer reside wherever they determine by their agreement."
In Aetna Freight Lines, the factual situation was similar to that here considered with one exception, namely, the action was not to enforce contribution but was to recover the full amount on the ground defendant was primarily liable for the payment thereof. This excerpt from the opinion is significant: "While it is clear that the difference between a loan of the type under consideration and an absolute payment is mere fiction, that ground alone is insufficient to declare the transaction a nullity. Rather, we will look to the purpose of the fiction created by the parties to the transaction. It is clear the purpose of the loan agreement was to insulate Continental from a prejudice which juries frequently apply against insurance companies." (Our italics.) [298 S.W.2d 296.]
The "loan receipt" agreement is referred to in Blair as a "device" and in Aetna Freight Lines as a "mere fiction." Decision is based on the grounds (1) that the defendant is not legally affected, and (2) that the sole purpose of the "device" or "mere fiction" is to avoid prejudice that might result if the action were prosecuted by the insurer in its own name.
In Minnesota (Blair) and in Kentucky (Aetna Freight Lines), the defendant would not be legally (adversely) affected by the "device" or "mere fiction." If it had made direct payment, the insurer could have maintained the action for contribution. The "device" or "mere fiction" simply enabled the insurer to prosecute the action in the name of its insured and thereby avoid possible prejudice.
In North Carolina, the situation is quite different. Here, if it had made direct payment of Curtis Jackson's judgment against Herring, Nationwide could not maintain this action against William Taft Jackson for contribution. Plaintiff, in express terms, purported to confer upon Nationwide a right to enforce contribution. Obviously, if this were permitted, defendant would be legally (adversely) affected. The right to contribution, if any, must be based on G.S. § 1-240; and under our decisions Nationwide has no right to contribution. Squires v. Sorahan, supra, and cases cited. Manifestly, plaintiff cannot, by the "device" or "mere fiction" of a "Loan Receipt" agreement or otherwise, confer upon Nationwide a right to contribution when such right is denied by the decisions of this Court.
It should be noted that the ground on which this decision is based is absent in actions brought in the name of an insured, pursuant to a "loan receipt" agreement, to recover for damage to the insured's property by fire, collision or like casualty, allegedly caused by the tortious act of a third party.
The conclusion reached is that plaintiff is not a real party in interest. G.S. § 1-57. The action was instituted and is prosecuted solely for the benefit of Nationwide. Since Nationwide has no right to prosecute an action for contribution, such action may not be prosecuted for its sole benefit by plaintiff or in plaintiff's name. For these reasons, the judgment of the court below is affirmed.
Affirmed.