#### THE ROYAL INSURANCE COMPANY, LIMITED, OF LIVERPOOL, ENGLAND, and THE HOME INSURANCE COMPANY OF NEW YORK v. THE ATLANTIC COAST LINE RAILROAD COMPANY.

(Filed 26 March, 1930.)

1. Interest B a — In actions for the tortious or wrongful destruction of property interest is allowable in the discretion of the jury.

Where the plaintiffs, insurers of the shipper, bring action on a subro-gation receipt and assignment from the shipper, to recover damages for the negligent burning of cotton by the carrier, and the jury awards damages without interest thereon: SeM, the awarding of interest tor a tortious or wrongful destruction of property is within the discretion of the jury, and the plaintiffs are not entitled thereto as a matter of law, except from the time of the judgment.

2. Trial E g — Charge will be construed contextually as a whole.

An instruction will not be held for error if, when it is construed con-nectedly and contextually as a whole, it is correct.

Appeals by plaintiffs and defendant from Daniels, J., at October Term, 1929, of SampsoN.

Oivil action to recover damages for an alleged negligent burning of cotton, insured by plaintiffs and paid for by them under their policies of insurance, the plaintiffs basing their cause of action on a subrogation receipt and assignment from the owner of said cotton.

Upon denial of liability and issues joined, the jury returned the following verdict:

“1. Are the. plaintiffs, by paying the value of the cotton insured by them to Bethune, Colwell & Co., subrogated to the rights and remedies of the said Bethune, Colwell & Co., against the defendant railroad company? Answer: Tes.

2. "Was the cotton of Bethune, Colwell & Co., which was insured by plaintiffs and loss of which was paid for by them, burned by the negligence of the defendant, as alleged in the complaint? Answer: Yes.

3. Was Bethune, Colwell & Co. guilty of contributory negligence, as alleged in the answer? Answer: No.

*5194. What damages, if any, are plaintiffs entitled to recover ? Answer: $9,075.86.”

From a judgment on tbe verdict, botb plaintiffs and defendant appeal, assigning errors.

Butler & Butler and B. L. Herring for plaintiffs.

L. J. Poisson and A. McL. Graham, for defendant.

PLAINTIFFS'" Appeal.

Stacy, C. J.

Tbe plaintiffs present tbe single question as to whether they are entitled, as a matter of right, to interest on tbe amount of damages assessed from tbe date of tbe destruction of tbe property? We think not, for, under tbe decisions in this jurisdiction, tbe allowance of interest in such cases rests in tbe sound discretion of tbe jury.

Tbe case was tried upon tbe theory that tbe plaintiffs, as subrogees, were entitled to recover, if entitled to recover at all, the fair market value of tbe cotton at tbe time and place of its destruction, plus interest thereon, if tbe jury, in its discretion, should so award, tbe total recovery of plaintiffs, however, not to exceed tbe amounts paid under their policies. 25 R. O. L., 1388. Tbe jury awarded no interest, either as such or as a part of tbe damages, hence, under our decisions, tbe damages fixed by tbe jury, being, as they are, for tortious or wrongful destruction of property, do not, as a matter of law, bear interest until after judgment. Harper v. R. R., 161 N. C., 451, 77 S. E., 415; Devereaux v. Burgwin, 33 N. C., 490; Rippey v. Miller, 46 N. C., 480; Guano Co. v. Magee, 86 N. C., 351; Williams v. Lumber Co., 118 N. C., 928, 24 S. E., 800; Lance v. Butler, 135 N. C., 419, 47 S. E., 488; Stephens v. Koonce, 103 N. C., 266, 9 S. E., 315; Hoke v. Whisnant, 174 N. C., 660, 94 S. E., 446; Chatham v. Mecklenburg Realty Co., 174 N. C., 675, 94 S. E., 447; Acme Mfg. Co. v. McQueen, 189 N. C., 311, 127 S. E., 246; Sears, Roebuck & Co. v. Rouse Banking Co., 191 N. C., 506, 132 S. E., 468; Wilson v. Troy, 135 N. Y., 96; 18 L. R. A., 449; 17 C. J., 824.

Tbe question, therefore, as to whether tbe plaintiffs, under tbe equitable doctrine of subrogation, would be entitled to interest on tbe amounts paid under their policies from tbe dates of such payments, cannot arise as tbe amount of damages awarded by tbe jury is only equal to tbe principal sums paid by tbe plaintiffs without interest. Herring v. R. R., 189 N. C., 285, 127 S. E., S. Tbe right of subrogation, it should be remembered, is not founded on contract, but is a creature of equity and is enforced solely for tbe purpose of accomplishing tbe ends of substantial justice. Memphis, etc., R. R. v. Dow, 120 U. S., 287.

Tbe plaintiffs are not demanding a new trial on tbe issue of damages, but an allowance of interest by tbe court as a matter of right. _ It is *520sufficient to say that as tbe matter was discretionary witb tbe jury, tbe plaintiffs are entitled to recover no more than the verdict awards. Ins. Co. v. R. R., 193 N. C., 404, 137 S. E., 309; S. c., 195 N. C., 693, 143 S. E., 516.

On plaintiffs’ appeal, therefore, there is .no error.

DEFENDANT’S APPEAL.

Stacy, C. J. No new question is presented by tbe defendant’s appeal. Several exceptions were tbe subject of earnest debate before us, and while they may not be altogether free from difficulty, a careful perusal of tbe entire record leaves us witb tbe impression that tbe defendant has no just cause to complain at tbe manner in which tbe case was tried.

Tbe charge contains one or two expressions, which, standing alone, might be subject to some criticism, but reading it contextually in tbe same connected way in which it was given, as we are required to do, it would seem to be free from reversible error. Hence, tbe verdict and judgment will be upheld.

No error.