Jackson v. Baggett , 237 N.C. 554 ( 1953 )

75 S.E.2d 532 (1953) 237 N.C. 554

JACKSON
v.
BAGGETT.

No. 391.

Supreme Court of North Carolina.

April 15, 1953.

Harris, Poe & Cheshire, Raleigh, for the plaintiff, appellee.

Howard H. Hubbard, Clinton, and Charles F. Lambeth, Jr., Thomasville, for the defendant, appellant.

PARKER, Justice.

The question presented on this appeal has been answered in the recent case of Burgess v. Trevathan, 236 N.C. 157, 72 S.E.2d 231, 234; the opinion in which was filed 17 September 1952. In fairness to the able and learned trial judge it should be stated that the opinion in Burgess v. Trevathan was filed the same day the order in this case was signed, and neither he nor counsel had any opportunity to see it before the 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 the loss is entitled to share to the extent of its payment in the proceeds of the judgment in the action brought by the insured against the tortfeasor to recover the total amount of the loss, it has a direct and appreciable interest in the subject matter of the action, and by reason thereof is a proper party to the action. Equitable Life Assurance Society v. Basnight, 234 N.C. 347, 67 S.E.2d 390; 67 C.J.S., Parties, § 1. This being so, the insurance company in such case may be brought into the action by the court in the exercise of its discretionary power to make new parties at the instance of the insured or the tort-feasor either in the capacity of an additional plaintiff who has an interest in the subject of the action and in obtaining the relief demanded in it, or in the capacity of an additional defendant whose presence is necessary to a complete determination of the rights of all persons who may have an interest in the result of the litigation. G.S. §§ 1-73, 1-163; Service Fire Insurance Co. v. Horton Motor Lines, Inc., supra [225 N.C. 588, 35 S.E.2d 879]; 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. Trevathan, 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, 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 power 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.

Reversed.