#### DORIS WADE JACKSON v. HANNIBAL BAGGETT.

(Filed 15 April, 1953.)

1. Insurance § 51: Pax-ties § 10a—

Where insurer has paid all but $50.00 of the damage sustained by plaintiff’s car in the collision in suit, insurer is a proper party in plaintiff’s action against the tort-feasor, and may be joined as an additional party plaintiff or defendant, at the instance of the original defendant or the insured, in the discretion of the lower court, but the refusal as a matter of law of defendant’s motion that insurer be joined as an additional party defendant is erroneous.

3. Insurance § 51: Pleadings § 31—

If the insurer is not a party to an action to recover for damages to the insured vehicle, all reference to insurance should be stricken from the pleadings upon motion aptly made.

Appeal by defendant from Burney, JSeptember Civil Term 1952. SAMPSON.

Civil action to recover damages for injury to an automobile caused by tbe alleged actionable negligence of tbe defendant.

Tbe plaintiff filed a complaint in wbicb sbe alleged that ber husband was operating ber car upon a public highway, and while attempting to overtake and pass tbe defendant’s car, tbe defendant negligently and heedlessly and without giving any signal turned bis automobile to tbe left causing a collision with plaintiff’s car, and that such negligence was tbe proximate cause of damage to plaintiff’s car in tbe amount of $1,650.00.

Tbe defendant filed an answer denying any negligence on bis part, and further alleging that even if be were guilty of negligence, then tbe driver of .plaintiff’s car was guilty of contributory negligence.

Tbe defendant further alleged in bis answer upon information and belief that tbe plaintiff bad ber automobile insured against damage by collision with tbe Twin States Insurance Co., an insurance company licensed and doing business in North Carolina; that this insurance company has paid the plaintiff for tbe loss sbe sustained, and has been subro-gated to tbe rights, if any, of tbe plaintiff against tbe defendant; that tbe insurance company is a necessary and proper party to this action, and that a.n order should be entered making said insurance company a party defendant, and so prays.

Whereupon the plaintiff made a motion that all references in tbe answer to the insurance company be stricken out as prejudicial to tbe plaintiff. One of plaintiff’s counsel, Charles A. Poe, made an affidavit in support of plaintiff’s motion to strike, wbicb in substance states that be is counsel for tbe plaintiff and tbe Twin States Insurance Co.; that tbe *555plaintiff carried $50.00 deductible collision insurance on ber automobile with tbe said insurance company, and tbat tbe insurance company bas paid all ber damage except $50.00, and sbe bas paid tbe $50.00; tbat any recovery in tbis suit will be distributed by affiant to plaintiff and tbe insurance company according to tbeir interests.

Tbe court signed an order stating tbat tbe court found as a fact tbat tbe plaintiff’s car was insured against damage by tbe said insurance company; tbat tbe policy bad a $50.00 deductible provision; tbat tbe insurance company bas paid all ber loss except $50.00. Tbe order further stated tbat tbe insurance company is a proper party, being united in interest as subrogee to a $1,600.00 interest; tbat tbe joinder of tbe insurance company would not prejudice tbe plaintiff and sucb joinder should be made; but tbat tbe court was of opinion tbat tbe case of Powell v. Wake Water Go., 171 N.C. 290, 88 S.E. 426, is controlling, and granted tbe plaintiff’s motion as a matter of law to strike from tbe defendant’s answer all reference to tbe said insurance company.

From tbe order so signed tbe defendant appealed, assigning error.

Harris, Poe Cheshire for plaintiff, appellee.

Howard H. Hubbard and Charles P. Lambeth, Jr., for the defendant, appellant.

Paekee, J.

Tbe question presented on tbis appeal bas been answered in the recent case of Burgess v. Trevathan, 236 N.C. 157, 72 S.E. 2d 231; the opinion in which was filed 17 September 1952. In fairness to tbe able and learned trial judge it should be stated tbat tbe opinion in Burgess v. Trevathan was filed tbe same day tbe order in tbis case was signed, and neither be nor counsel bad any opportunity to see it before tbe order was signed.

In Burgess v. Trevathan, supra, Justice Ervin speaking for the Court says: “Since an insurance company which pays the insured for a part of tbe loss is entitled to share to tbe extent of its payment in tbe proceeds of tbe judgment in the action brought by tbe insured against tbe tort-feasor to recover tbe total amount of tbe loss, it bas a direct and appreciable interest in tbe subject 'matter of tbe action, and by reason thereof is a proper party to tbe action. Assurance Society v. Basnight, 234 N.C. 347, 67 S.E. 2d 390; 67 C.J.S., Parties, section 1. Tbis being so, tbe insurance company in sucb case may be brought into tbe action by tbe court in tbe exercise of its discretionary power to make new parties at tbe instance of tbe insured or tbe tort-feasor either in tbe capacity of an additional plaintiff who bas an interest in tbe subject of tbe action and in obtaining tbe relief demanded in it, or in tbe capacity of an additional defendant whose presence is necessary to a complete determination of tbe *556rights of all persons who may have an interest in the result of the litigation. G.S. 1-73, 1-163; Insurance Co. v. Motor Lines, Inc., supra (225 N.C. 588); Lake Erie & W. R. Co. v. Falk, 62 Ohio St. 297, 56 N.E. 1020; Barnhill v. Brown, 58 Ohio App. 188, 16 N.E. 2d 478. Undoubtedly the more effective procedure in such situation is for the party desiring to bring the insurance company into the action to move that it be made an additional party defendant and required to answer, setting up its claim arising through subrogation. Schaller v. Chapman (Ohio App.), 66 N.E. 2d 266.”

See an interesting note on Burgess v. Trevalhan, supra, in 31 N.C.L. Rev. pp. 224 et seq. (1953).

The Twin States Insurance Company, according to the finding of fact by the trial judge, has paid the plaintiff for her loss except $50.00, and is entitled to share to the extent of its payment in the proceeds of the judgment in this action brought by the plaintiff to recover the total amount of her loss, if there is such a recovery. The insurance company, therefore, is a proper party to the action. When this case is returned to the Superior Court, the Twin States Insurance Company may be brought into this action by the Court in the exercise of its discretionary po.wer to make new parties at the instance of the defendant (or the insured) either in the capacity of an additional plaintiff or in the capacity of an additional defendant. If the court in its discretion fails to make the Twin States Insurance Company a party, then it should strike out of the defendant’s answer all reference to the insurance company.

The defendant’s exception and assignment of error to the order signed by his Honor allowing as a matter of law the plaintiff’s motion to strike from the defendant’s answer all reference to the Twin States Insurance Company must be upheld, and the order is

Reversed.