{ "id": 8574855, "name": "MILWAUKEE INSURANCE COMPANY v. McLEAN TRUCKING COMPANY", "name_abbreviation": "Milwaukee Insurance v. McLean Trucking Co.", "decision_date": "1962-04-18", "docket_number": "", "first_page": "721", "last_page": "727", "citations": [ { "type": "official", "cite": "256 N.C. 721" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "114 S.E. 2d 683", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": -1 }, { "cite": "252 N.C. 699", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625473 ], "opinion_index": -1, "case_paths": [ "/nc/252/0699-01" ] }, { "cite": "102 S.E. 417", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "179 N.C. 255", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655616 ], "opinion_index": 0, "case_paths": [ "/nc/179/0255-01" ] }, { "cite": "61 S.E. 2d 705", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "232 N.C. 617", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8611370 ], "opinion_index": 0, "case_paths": [ "/nc/232/0617-01" ] }, { "cite": "85 S.E. 2d 602", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "241 N.C. 483", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8612550 ], "opinion_index": 0, "case_paths": [ "/nc/241/0483-01" ] }, { "cite": "97 S.E. 2d 486", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "246 N.C. 101", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624533 ], "opinion_index": 0, "case_paths": [ "/nc/246/0101-01" ] }, { "cite": "121 S.E. 2d 564", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "255 N.C. 281", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568616 ], "opinion_index": 0, "case_paths": [ "/nc/255/0281-01" ] }, { "cite": "51 S.E. 1029", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "139 N.C. 427", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652788 ], "opinion_index": 0, "case_paths": [ "/nc/139/0427-01" ] }, { "cite": "119 S.E. 362", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "186 N.C. 269", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653438 ], "opinion_index": 0, "case_paths": [ "/nc/186/0269-01" ] }, { "cite": "97 S.E. 2d 457", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "246 N.C. 63", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623930 ], "opinion_index": 0, "case_paths": [ "/nc/246/0063-01" ] }, { "cite": "101 S.E. 2d 389", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "247 N.C. 471", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627440 ], "opinion_index": 0, "case_paths": [ "/nc/247/0471-01" ] }, { "cite": "122 S.E. 2d 366", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "371-2" } ], "opinion_index": 0 }, { "cite": "255 N.C. 537", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571019 ], "pin_cites": [ { "page": "543" } ], "opinion_index": 0, "case_paths": [ "/nc/255/0537-01" ] }, { "cite": "1917 A. 1302", "category": "reporters:state_regional", "reporter": "A.", "opinion_index": 0 }, { "cite": "88 S.E. 426", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "171 N.C. 290", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270023 ], "opinion_index": 0, "case_paths": [ "/nc/171/0290-01" ] }, { "cite": "64 A.L.R. 656", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "147 S.E. 686", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "197 N.C. 100", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627303 ], "opinion_index": 0, "case_paths": [ "/nc/197/0100-01" ] }, { "cite": "35 S.E. 2d 879", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "225 N.C. 588", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8614346 ], "opinion_index": 0, "case_paths": [ "/nc/225/0588-01" ] }, { "cite": "72 S.E. 2d 231", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "236 N.C. 157", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623114 ], "opinion_index": 0, "case_paths": [ "/nc/236/0157-01" ] } ], "analysis": { "cardinality": 630, "char_count": 16323, "ocr_confidence": 0.572, "pagerank": { "raw": 3.993308939168792e-07, "percentile": 0.9054979653253915 }, "sha256": "2a32abd8bb75e1e16ed3e9b1b777fe7955aa1451d46a1317965c45747d8aa4a1", "simhash": "1:878b19ba5f973ec5", "word_count": 2800 }, "last_updated": "2023-07-14T16:51:02.884412+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MILWAUKEE INSURANCE COMPANY v. McLEAN TRUCKING COMPANY." ], "opinions": [ { "text": "Parker, J.\nPlaintiff 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\u2019s findings of fact.\nJudge Walker\u2019s judgment recites near its beginning: \u201cIt 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 Y. 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.\u201d Plaintiff\u2019s complaint alleges it has \u201cpaid 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.\u201d\nSo 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 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.\nWhere 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 wrong \u2014 and a single wrong gives rise to a single indivisible cause of action. Burgess v. Trevathan, 236 N.C. 157, 72 S.E. 2d 231; Insurance Co. v. 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 v. Water Co., 171 N.C. 290, 88 S.E. 426, Ann. Cas. 1917 A. 1302; 1 Am. Jur. 2d, Actions, sec. 127.\nWhere 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\u2019s indivisible cause of action against the tort-feasor. 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 \u201cevery action must be prosecuted in the name of the real party in interest.\u201d Herring v. Jackson, 255 N.C. 537, 543, 122 S.E. 2d 366, 371-2; Insurance Co. v. 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; Insurance Co. v. Motor Lines, Inc., supra; Underwood v. Dooley, supra; Insurance Co. v. Lumber Co., 186 N.C. 269, 119 S.E. 362; Powell v. Water Co., supra; Cunningham v. R. R., 139 N.C. 427, 51 S.E. 1029.\nPlaintiff\u2019s 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; Goldsboro v. R. R., 246 N.C. 101, 97 S.E. 2d 486; Suits v. Insurance Co., 241 N.C. 483, 85 S.E. 2d 602; Hoover v. Crotts, 232 N.C. 617, 61 S.E. 2d 705; Strong\u2019s N. C. Index, Yol. 1, Appeal and Error, \u00a7 21, where numerous cases are cited.\nDefendant states in its brief: \u201cThe insurance contract was between the insurance company and Miller and not with the shippers of the cargo.\u201d 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 \u201cMotor Truck Merchandise Floater\u201d policy. Defendant states in its brief: \u201cIn the present case the insurance company paid only a portion of the loss sustained in the collision.\u201d This statement in the brief finds no support in the findings of fact. Defendant further states in its brief: \u201cIt 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.\u201d\nThe 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 subrogation \u2014 that is, subrogation by agreement between the insurer and the insured \u2014 or the right of equitable subro-gation, by operation of law, upon the payment of the loss. Smith v. Pate, supra; Underwood v. Dooley, supra; Insurance Co. v. R. R., 179 N.C. 255, 102 S.E. 417; Cunningham v. R. R., supra; 29A Am. Jur., Insurance, sec. 1719.\nIf 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 \u201cevery action must be prosecuted in the name of the real party in interest,\u201d G.S. 1-57, and under such circumstances plaintiff would be \u201cthe real party in interest,\u201d 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 tort-feasors. Under such circumstances, if such existed, Miller in his trial could only take a voluntary nonsuit or suffer an involuntary nonsuit. \u201cWhere, 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.\u201d Smith v. Pate, supra.\nThe trial judge\u2019s so-called finding of fact, \u201cMiller 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,\u201d is a conclusion of law or a mixed finding of fact and conclusion of law.\nWe are of opinion, and so hold, that the findings of fact in the judgment are insufficient to support the judgment dismissing plaintiff\u2019s action.\nPlaintiff has filed in this Court a motion to amend its complaint by striking therefrom Paragraph XI, and inserting in lieu thereof the following:\n\u201cAs a result of said collision and the ensuing damage to the cargo being transported by the plaintiff\u2019s insured, David V. Miller, plaintiff was called upon to pay and paid on behalf of David Y. 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] Miller t/a Interstate Motor Lines, and Furniture Dealers Supply Company\u2019 and to Ideal Chair Company, Incorporated by its draft Number M66992 dated January 7, 1959 in the sum of $125.75 payable to \u2018David B. [sic] Miller t/a Interstate Motor Lines and Ideal Chair Company, Incorporated\u2019 (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.\u201d\nThis 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.\nThe judgment below is\nReversed.", "type": "majority", "author": "Parker, J." } ], "attorneys": [ "Haworth, Riggs, Kuhn & Haworth, By John Haworth for plaintiff appellant.", "Spry & Hamrick, By Claude M. Hamrick for defendant appellee." ], "corrections": "", "head_matter": "MILWAUKEE INSURANCE COMPANY v. McLEAN TRUCKING COMPANY.\n(Filed 18 April, 1962.)\n1. Appeal and Error \u00a7 21\u2014\nA sole assignment of error to the judgment does not present the sufficiency of evidence to support the findings of fact but only whether error of law appears on the face of the record proper, which includes whether the findings are sufficient to support the judgment and whether the judgment is regular in form.\n2. Appeal and Error \u00a7 22\u2014\nThe findings of fact will be presumed to be supported by evidence in the absence of exceptions to the findings.\n3. Appeal and Error \u00a7 49\u2014\nWhere the findings of fact are insufficient to support the judgment dismissing the action, the judgment must be reversed.\n4. Insurance \u00a7 86; Parties \u00a7 1\u2014\nThe destruction of insured property by a tortious act gives rise to a single indivisible cause of action, and when the insurer has paid the entire loss he is subrogated to the rights of the insured either by agreement in the contract or by equitable subrogation, and becomes the real party in interest with the sole right to maintain an action against the tort-feasor for the loss. G.S. 1-57.\n5. Same; Judgments \u00a7 29\u2014\nWhere a tortious act results not only in the loss of insured property, but also damage to the truck transporting the insured property and the death of the driver of the truck, and the insurer pays the entire loss of cargo, judgment for the recovery of damages to the truck and for the wrongful death in an action by the truck owner and the personal representative of the deceased driver does not bar insurer from thereafter maintaining an action against the tort-feasor for the value of the insured cargo.\nAppeal by plaintiff from Walker, S.J., 4 December 1961 Civil Term of Foesyth.\nOn 27 July 1958 a tractor-trailer unit owned by David V. Miller, d/b/a Interstate Motor Lines, and driven by its employee, Joe Washington Scott, Jr., and a tractor-trailer unit owned by McLean Trucking Company and driven by its employee, William Lester Oliver, collided on Virginia Highway 304 near the town of South Boston. Miller and McLean Trucking Company were common motor carriers. The tractor-trailer unit and its equipment owned by Miller were damaged, and its cargo of used furniture was destroyed by a fire resulting from the collision. The plaintiff here, Milwaukee Insurance Company, had insured Miller under its policy No. IM63579, Motor Truck Merchandise Floater, against damage or loss to this cargo of used furniture being transported by Miller as a common motor carrier.\nOn 31 July 1958 Miller instituted in the Guilford County Superior Court, High Point Division, a civil action against McLean Trucking Company and Oliver its driver seeking recovery in the sum of $8,250.00 for damages to his tractor-trailer unit and equipment, and recovery in the sum of $1,681.00 for destruction of the cargo of used furniture he was transporting. His complaint does not allege the ownership of the used furniture or that it was insured.\nIn this collision Joe Washington Scott, Jr., the driver of Miller\u2019s tractor-trailer, was killed. His administrator instituted suit in the same court against McLean Trucking Company and Oliver its driver for damages for his intestate\u2019s death.\nIn both cases defendants denied negligence on their part, pleaded contributory negligence of Joe Washington Scott, Jr., by way of defense, and pleaded counterclaims.\nThe two cases were consolidated for trial, and tried at 22 June 1959 Civil Term of Guilford Superior Court, High Point Division, by Thompson, S.J., and a jury. This stipulation appears in the record:\n\u201cIT IS STIPULATED that at the trial of the prior action entitled \u2018David V. Miller, d/b/a Interstate Motor Lines, v. McLean Trucking Company, et at.,\u2019 the plaintiff Miller, at the close of all the evidence, took a voluntary nonsuit as to that portion the plaintiff set forth in the complaint and the prayer therein respecting the damage, if any, to the cargo in the sum prayed for in the complaint of $1,681.\u201d\nThe jury awarded damages of $27,000.00 in the wrongful death case, and damages of $4,000.00 to Miller for injury to his tractor-trailer unit and its equipment. Judgment was entered in accord with the verdict. Upon appeal to the Supreme Court, No Error was found in the trial. McCombs v. Trucking Co. and Miller v. Trucking C'o., 252 N.C. 699, 114 S.E. 2d 683.\nThe present action was brought on 11 May 1961 by plaintiff, Milwaukee Insurance Company, to recover from defendant for the loss of the cargo of used furniture entirely destroyed by fire resulting from the aforesaid collision on 27 July 1958, which cargo was insured by it as set forth above, and which collision was caused by the alleged actionable negligence of defendant. Plaintiff alleges in Paragraph XI of its complaint:\n\u201cAs a result of said collision and the ensuing damage to the cargo being transported by the plaintiff\u2019s insured, David V. Miller, plaintiff was called upon to pay and paid on behalf of David Y. 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.\u201d\nDefendant by answer and motion pleaded the former final judgment in Miller\u2019s action against it as an absolute bar to the maintenance of the present action, and prayed its dismissal. Defendant in its answer alleged that Miller in the prior action chose to prosecute only a part of his claim, notwithstanding he then had legal title to the entire claim, that he took a voluntary nonsuit at the close of all the evidence as to the loss of cargo, that the present plaintiff is subro-gated only to the rights of its insured Miller, and is in privity with him, and to allow plaintiff to maintain this suit would constitute the splitting of a single indivisible cause of action.\nAt the hearing of defendant\u2019s motion before Judge Walker plaintiff introduced in evidence, without objection, the record in the prior action of Miller v. McLean Trucking Company.\nDefendant introduced in evidence \u201cthe following PORTION OF ARTICLE IX OF THE COMPLAINT filed by Milwaukee Insurance Company v. McLean Trucking Company, in the prior action, wherein Milwaukee Insurance Company submitted to a judgment of voluntary nonsuit:\n\u201c'. . . plaintiff stands in privity with the said David Y. Miller with respect to the right to recover damages from the defendant; ? ))\nJudge Walker entered a judgment sustaining defendant\u2019s plea in bar, and dismissing the action. From this judgment, plaintiff appeals.\nHaworth, Riggs, Kuhn & Haworth, By John Haworth for plaintiff appellant.\nSpry & Hamrick, By Claude M. Hamrick for defendant appellee." }, "file_name": "0721-01", "first_page_order": 757, "last_page_order": 763 }