51 S.E. 1029 | N.C. | 1905
The first issue having been found for the plaintiffs, we are brought to a consideration of the plaintiffs' exceptions to his Honor's rulings upon questions pertaining to the second issue. The plaintiffs tendered certain issues which his Honor declined to submit, and they excepted. We think that the issues submitted fairly presented to the jury the controverted questions of fact Criticism is made of the form of the second issue, but as the jury were practically instructed how to answer it, the form becomes immaterial. The defendant took the depositions of certain persons, including one of the plaintiffs, in Liverpool. Many objections were made to the questions and answers contained in the depositions, the validity of which is dependent upon the conclusion to which we are brought in regard to the materiality of the testimony. The controversy was directed to the proposition, maintained by the defendant, that the cotton was insured and that the loss had been paid in full, before this action was commenced. That, by reason of such payment, the insurers became subrogated to the right of action, if any, which had accrued to the plaintiffs, and that under section 177 of The Code they were the real parties in interest and could alone maintain the action. The depositions tended to show that C. T. Bowring Co., Ltd., of London, insurance brokers, took out for the plaintiffs policies of insurance covering the cotton in controversy, in The Standard Marine and Themes *343 Mersey Insurance Companies; that upon the destruction of the (430) cotton the companies were duly notified of and adjusted the loss at the full value, plus ten per cent for advance in price, as per terms of the policy. There is no serious controversy in respect to these facts. The plaintiffs denied that the loss had been paid, insisting that the amount received by them from the companies was an advance or loan to be repaid from the amount collected from the carrier. It appears that C. T. Bowring Co., the brokers, gave to the plaintiffs a writing "on the inside but not attached to the policies," in the following words:
"SEASON OF 1902-1903.
C. T. BOWRING Co., LTD., London.
9 SEPTEMBER, 1902.
Messrs. Cunningham Hinshaw:
In consideration of your acceptance of our policy containing the stipulation this policy does not cover any cotton in the custody or control of any land carrier or other bailee,' we agree that in event of loss on such cotton, we will advance to you our proportion of the amount of such loss, pending collection from the carrier, or other bailee, as a loan without interest, the repayment thereof to be conditional upon and only to the extent of the net amount recovered by you from the carrier, and we further agree that we will pay and assume all costs and expenses incurred by you in connection with such recovery."
On 6 November, 1902, Bowring Co. notified the insurance companies of the loss. On 7 November, 1902, the company sent to Bowring Co. the following:
LIVERPOOL, 7 Nov., 1902. (431)
Messrs. C. T. Bowring Co., Ltd., London: Cr. with The Standard Marine Insurance Co., Ltd.
By advance against 500 bales of cotton, destroyed by fire at Hamlet, N.C. pending collection of loss from carrier, £ 2,357.10 cheque herewith."
On 8 November, 1902, Bowring Co. delivered to the Standard Fire Insurance Company the following receipt:
"LONDON, 8 Nov., 1902.
Received from the Standard Marine Insurance Company . . . the sum of two thousand, three hundred and fifty-seven pounds, thirteen shillings, and eight pence, being P. C. of mechanician 8 3-8 and claim account, fire at Hamlet, N.C. as per credit note No. 29216-29218, £ 2,357 .10 .8.
C. T. BOWRING Co., Ltd." *344
The same transactions were had with The Thames Mersey Marine Insurance Co. The total amount of the loss, plus ten per cent was £ 4,715. On 11 November, 1902, the plaintiffs executed to Bowring Co. the following receipt:
"LIVERPOOL, 11 Nov., 1902.
Received from Messrs. C.T. Bowring Co. . . . the sum of four thousand, seven hundred and fifteen pounds, amount of claim five hundred bales cotton burnt at compress.
CUNNINGHAM HINSHAW, per Alfred Collins."
On the same day the plaintiffs sent Bowring Co. the following letter:
(432) "DEAR Sirs: — We are in receipt of your credit note and cheque in settlement of our claim for total loss of 500 bales of cotton burnt at Hamlet, N.C. and now enclose our receipt. We much appreciate the promptitude with which the underwriters have settled the claim. We sent the bill of lading by last Saturday's mail to our senior in New Orleans to assist in recovering from the carriers and we hope the underwriters will be recouped a substantial portion of their loss.
Yours faithfully,
CUNNINGHAM HINSHAW. . . ."
The only parol evidence bearing upon the construction of the writing was that of W. E. Hargraves, one of the members of the firm of Bowring Co., who described the manner in which the policies were procured and the loss paid. W. A. Williams, who was underwriter to the Standard Fire Insurance Co., testified regarding the issuance of the policy, saying that the entire transaction was with Bowring Co., and that the money was paid to them as an advance on the loss. S. T. Cross occupied the same relation to The Thames Mersey Company. Cunningham, one of the plaintiffs, testified that the plaintiffs were suing jointly with the insurance companies and were the real parties in interest. That they had a loan from the insurance companies. That he never saw the policies of insurance or the contract between the insurance companies and Bowring — only the policies between themselves and Bowring.
We have examined this testimony with care. His Honor instructed the jury that "Upon all the evidence, if the jury shall find it to be true, *345
the cotton was insured and the plaintiffs had been paid in full therefor end the jury will answer the second issue `yes.'" To this instruction plaintiffs excepted. It will be observed that the plaintiffs' second cause of action, upon which they are demanding judgment, is not against the defendant as a common carrier, but for that while the cotton was in a cotton compress building belonging to Chas. E. Johnson Co., at Hamlet, awaiting compression and shipment, it was burned (433) by the negligence of the defendant. Considered from this point of view the contract in regard to making an advance which seems to have been made by Bowring Co., and to which the insurance companies are not parties, has no application. The agreement, contained in that writing is to make an advance "pending collection from the carrier or other bailee." Here there is no loss sustained while the property is in the possession of the carrier nor is the claim for any loss occurring from any default of the bailee, C. E. Johnson Co., but against the defendant as an independent wrongdoer. The money could not well be said to have been paid pursuant to an agreement having no application to the manner of loss. We do not perceive any evidence of a loan by the insurance companies to the plaintiffs. Without discussing the construction of the several writings between Bowring Co. and the insurance companies, it is sufficient to say that the receipt executed by the plaintiffs to Bowring Co., on 11 November, 1902, for four thousand seven hundred and fifteen pounds, "amount of claim of five hundred bales cotton burnt at compress," negatives any suggestion that Bowring Co. were making a loan or advancement. This is further negatived by the terms of the letter of same date from plaintiffs to Bowring Co., acknowledging receipt of cheque "in settlement of our claim for total loss of five hundred bales of cotton," etc. They also express their appreciation of the "prompitude with which the underwriters have settled the claim," and state that they have sent the bill of lading to their senior in New Orleans to assist in recovering from the carriers, expressing the hope that "the underwriters will be recouped a substantial portion of their loss." After a careful examination of the evidence, we concur with his Honor that the plaintiffs were paid in full by the insurers. There are authorities sustaining the claim of the insured to recover of the carrier or wrongdoer for destruction of property when it is insured, the insurer having made a loan pending the (434) litigation. We see no reason why this may not be done. The wrongdoer is primarily liable. In a case much like this, the court held that the transaction constituted a payment. Lancaster Mills v. Merchant,etc.,
To the same effect is Ins. Co. v. R. R.,
Prior to the adoption of our Code of Procedure, the action to enforce the claim of the insured could be prosecuted in a court of law, only in the name of the insured, to the use or for the benefit of the insurer. The insurer has the same right or cause of action which the insured had, and his recovery is limited to the rights of the insured. He could not prosecute an independent cause of action for the wrong done, but only that which accrued to the insured. This right is not based upon any supposed consent of the insured to permit him to sue in his name, it is an absolute right created and conferred upon the payment of the loss. It is held, that if, after knowledge of the payment of the loss by the insurer, the wrongdoer pay the damages sustained by the destruction of the property, such payment will not bar the action of the insurer to recover upon his subrogated right. Ins. Co. v. R. R., supra, the Chancellor saying: "If the railroad company had not paid H. his damages, or had paid them to him knowing that he had received the amount insured from the complainants, they are liable to the complainants in a suit at law, which they have the right to bring in the name of H. (437) without his consent, to repay them the damage to the amount of *348
the sum paid by them, and that release by H. would be no defense to such suit." It will be observed that in many cases cited, the suits are brought in the name of the insured, but it will be noted that they are to the use or for the benefit of the insurer. In Hart v. R. R. supra
"the insurance company sues in the name of the plaintiff," etc., inU.S. v. Tobacco Co.,
Being of the opinion that the plaintiffs, not being the real parties in interest, cannot maintain the action, we do not deem it necessary to discuss the exceptions to his Honor's rulings pertaining to the fourth issue. The judgment must be
Affirmed.
Cited: Horne v. Power Co.,
(440)