18 Ga. App. 341 | Ga. Ct. App. | 1916
It appears, from the agreed statement of facts, that J. O. and H. B. Swearingen composed a firm conducting business under the. name of Elberton Planing Mills, and they owned a planing mill, and other buildings, to which the Seaboard Air-Line Railway set fire. After the fire the1 Swearingens and the Elberton Planing Mills entered into an agreement of subrogation with the Insurance Company of North America, whereby, in consideration.
It can not be questioned that the insurance company had a right of subrogation under the contract of insurance and under the law, and with the Swearingens and the Elberton Planing Mills by agreement in writing, made before the bringing of any suit. It is insisted by the plaintiff in error that this right of subrogation was destroyed by the act of the Swearingens and the Elberton Planing Mills in bringing the two suits against the railway company; in other words, that the judgments rendered in the litigation arising on account of the fire concluded the rights of the insurance company on all the issues before the court or that could have been passed upon by the court upon these trials. We' do not think that this is the law. It can not be conceived how the Swearingens and the Elberton Planing Mills could in any way place before the jury legally, on the trial of their litigation with the railway company, the right to damages in behalf of the insurance company, held by it by way of subrogation. The insurance company had ■the right of subrogation under the law, and took an agreement from the Swearingens and the Elberton Planing Mills, recognizing that right. Why could not the insurance company maintain a suit upon the right which accrued to it upon the payment of the insurance money and the making of the agreement antedating the bringing of the suits by the Swearingens and the Elberton Planing Mills? In our opinion, the insurance company is not precluded from enforcing its right of subrogation by the fact that its predecessors, the Swearingens and the Elberton Planing Mills, had sued and recovered a judgment against the defendant railway company for the same cause of action. It will be observed that though it. was the same cause of action, there were different items
In our opinion the right of the insurance company to subrogation was unaffected in any way by the subsequent litigation between the predecessors of the insurance company and the railway company, and the insurance company is not such a privy as to be precluded by a judgment rendered on a suit filed subsequently to the accrual of the right of subrogation, not covering and including items of damages for which the insurance company claimed the right of subrogation.
The judgment of the trial judge, finding in favor of the plaintiff on the agreed statement of facts, is not contrary to law and the evidence. ' . Judgment affirmed.