On 7 November, 1927, tbe plaintiff, O. E. Underwood, was driving bis automobile on Clinton Street, in tbe'town of Eosebdro, Sampson County, North Carolina. A motor truck, owned by defendant, and driven by one of bis employees, collided with plaintiff’s automobile, on said street. As tbe result of said collision, plaintiff’s automobile was badly injured; plaintiff also sustained serious personal injuries. In bis complaint filed in tbis action, plaintiff alleges that said collision was caused by tbe negligence of tbe driver of said motor truck, and that defendant, as owner of said truck, and as employer of said driver, is liable for bis damages caused by said collision. Tbis action, wbicb was begun in tbe Superior Court of Sampson County, is for tbe recovery, only, of damages for tbe personal injuries sustained by plaintiff and caused by said collision. Plaintiff does not demand in tbis action judgment that be recover damages for tbe injuries to bis automobile. He does not allege in bis complaint that be bas suffered damages by reason of tbe injuries to bis automobile; be alleges that by reason of tbe injuries to bis person be bas been damaged in tbe sum of $10,000. He demands judgment for tbis sum only.
At tbe date of said collision plaintiff’s automobile was insured against loss or damage resulting from a collision, by a policy of insurance issued by tbe Maryland Casualty Company. By tbe terms of said policy tbe Maryland Casualty Company was subrogated to all tbe rights, claims and demands wbicb tbe plaintiff bad against tbe defendant for damages resulting from injuries to said automobile, caused by tbe negligence of defendant. Within a few dаys after said collision, and prior to tbe commencement of tbis action, tbe Maryland Casualty Company began an action against tbe defendant herein in tbe Superior Court of Meck-lenburg County, North Carolina. In said action tbe Maryland Casualty Company, as plaintiff, demanded judgment that it recover of tbe defendant tbe sum for wbicb it would be liable to plaintiff herein, under its pоlicy, as damages to bis automobile, resulting from tbe collision between defendant’s truck and said automobile, on Y November, 1927. It alleged that said sum was $2,500; it did not allege that it bad paid *102 or adjusted the loss prior to the commencement of said action. After the' commencement of said action in the Superior Court of Mecklen-burg. County, and before the commencement of this action in the Superior Court of Sampson County, the Maryland Casualty Company paid to the plaintiff herein the sum of $3,000, in full settlement of the amount for which the said company was liable to plaintiff herein, under its policy, on account of the damage or loss which plaintiff had sustained from the injuries to his automobile. After the commencement of this action, and while the same was pending, at the.request of said company, plaintiff executed a formal assignment, in writing, to the said Maryland Casualty Company of any and all claims, and demands which he had against the defendant for or on account of the injuries and damage to his automobile, caused by the collision between said automobile and defendant’s truck on 7 November, 1927. Thereafter, by consent, a judgment was entered in the action pending in the Superior Court of Mecklenburg County, wherein the Maryland Casualty Company was plaintiff, and the defendant herein was defendant, that the Maryland Casualty Company recover of the defendant the sum of $1,400, in full settlement of any and all claims which the said company had against said defendant by reason of the cause of аction alleged in the complaint in said action. This judgment has been paid by defendant, and duly canceled on the record in the office of the clerk of the Superior Court of Mecklenburg County.
Upon the foregoing facts, which were made to appear to the court by an amendment to the answer, which defendant filed, by leave of the court, defendant moved that this action be dismissed (1) for that, at the date of its commencement, an action against the defendant, begun by the Maryland Casualty Company, upon the same cause of action as that alleged in the complaint in this action, was pending in the Superior Court of Mecklenburg County, North Carolina; and (2) for that, since the commencement of this action, a final judgment has bеen rendered in said action, which defendant has paid and fully satisfied. Defendant’s motion was denied; defendant excepted, and appealed to this Court.
In the original answer filed by defendant in this action, the allegations of negligence, which constitute plaintiff’s cause of action herein, are denied; defendant also pleads, in bar of plaintiff’s recovery, his сontributory negligence. The facts on which defendant relies to sustain his motion that this action be dismissed, appear from his amended answer. They do not appear on the face of the complaint. In
Alexander v. Norwood,
It is well settled, therefore, by authoritative decisions of this Court that where an action is begun in a court of this State, and it is made to appear to said court, either by demurrer or by answer to the complaint, that at the date of its commencement there was pending in said court or in any court in this State of competent jurisdiction, another action between the same parties, involving the same, or substantially the same subject-matter, or cause of action, wherein all the rights of the parties thereto may be fully and finally determined and adjudicated, the action last begun will be dismissed.
As the result of the collision between plaintiff’s automobile and de-defendant’s motor truck, upon the аllegations of the complaint in this action, plaintiff had a cause of action against the defendant on which he was entitled to recover damages for all the injuries which he had sustained and which were caused by said collision. On this cause of action plaintiff could have recovered, in one action, damages for the injuries, both to his automobile and to his person. He had, however, only one cause of action against the defendant, for defendant’s tort, out of which the cause of action arose, was single .and entire. He could not have split this cause of action, and maintained two actions against
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defendant, one for the recovery of damages resulting from injuries to his automobile, and the other for the recovery of damages resulting from injuries to his person. Had plaintiff undertaken.to split his cause of action, and instituted two actions, one for the recovery of damages resulting from injuries to his automobile, and the other for the recovery of damages resulting from injuries to his person, the second action would have been dismissed, for that the first action, involving the same subjeсt-matter or cause of action was pending when the second action was begun.
Allen v. Salley, supra.
The recovery of a judgment in the first action, whether for damages to person or to property, would have barred a recovery in the second action.
Eller v. R. R.,
It is, therefore, well settled in this jurisdiction that one who has sustained damages, resulting from- injuries both to his property, and to his person, caused by the single wrong or tort of another, can maintain only one action for the recovery of his damages, and that he cannot split his cause of action, arising from a single wrong or tort, and *105 maintain separate actions against tbe tort-feasor, as defendant, and recover therein for separate items of damage resulting from said wrong or tort.
An action to recover damages for injuries either to person or to property, cаused by the single wrong or tort of the defendant, will be dismissed when it is made to appear to the court in which such action was begun and is pending, that another action begun by the same plaintiff against the same defendant, upon the same, or substantially the same cause of action, to recover damages for another injury, whether to person or to property, was рending in said court, or in another court in this State of competent jurisdiction to try and determine the issues involved in said action, at the date of the commencement of said action. A judgment recovered in the first action will bar a recovery in the second action, although the damages demanded in the second action are for a different injury from that for which the plaintiff recovered in the first action.
The principles above stated are well settled as the law of this jurisdiction, by authoritative decisions of this Court, and are in accord with decisions of courts in other jurisdictions, which are cited in the brief filed in this Court for the defendant. They are not, however, determinative of the question presented for decision by this appeal..
The аction begun in the Superior Court of Mecklenburg County and pending therein at the commencement of this action, was not begun by the plaintiff in this action; said action was begun by the Maryland Casualty Company, to recover judgment against the defendant in its own behalf, and not in behalf of the plaintiff herein. The judgment entered in said action, by consent of the parties thereto, was not rеcovered by the plaintiff in this action; it was recovered by the Maryland Casualty Company, on the cause of action alleged in its complaint in said action. The facts alleged as constituting said cause of action include the facts which plaintiff in this action alleges as- his cause of action against the defendant; other facts, however, are allegеd by the Maryland Casualty Company, in its complaint in said action, and were essential to constitute a cause of action on which the said company, as plaintiff in said action, was entitled to recover of defendant therein. It cannot be held that the cause of action alleged in the action pending in the Superior Court of Mecklenburg County, at the date of the commencement of this action, is the same, or even substantially the same as that alleged by the plaintiff in this action. The Maryland Casualty Company could not have recovered of defendant solely upon the facts which constitute the cause of action alleged by the plaintiff in this action. It was required to allege and did allege facts from which it apрeared that it was the real party in interest with respect to the sub *106 ject-matter of tbe action, to wit, damages for injuries to tbe automobile owned by plaintiff in tbis action, caused by tbe wrongful act or tort of defendant.
At the date of the commencement of this action, the plaintiff bad been fully compensated for the damage wbicb be bad sustained by reason of thе injuries to bis automobile. Tbis damage bad been paid by the Maryland Casualty Company, in discharge of its liability to plaintiff under its policy of insurance. No part of said damage bad been paid by the defendant, wbo upon the allegations of the complaint in this action, was liable to plaintiff for sucb damage, as well as for the damages to plaintiff’s person. Tbe Maryland Casualty Company, having paid the damage to plaintiff’s automobile, for wbicb it was liable under its policy, bad a cause of action against the defendant, upon its allegation that said damage was the result of an injury caused by defendant’s wrongful act or tort. Tbe Maryland Casualty Company alone could maintain an action to recover of defendant the sum wbicb it bad j>аid-to the plaintiff, the insured under its policy, for it, and not the plaintiff, was the real party in interest. In
Cunningham v. R. R.,
We bave not overlooked tbe fact tbat in tbe complaint filed by tbe Maryland Casualty Company in tbe action begun in tbe Superior Court of Mecklenburg County, it is not alleged tbat said company bas рaid tbe loss or damage to tbe automobile. It only alleges tbat it is liable for sucb loss as tbe owner bas sustained. For tbe purposes of tbis decision, we do not tbink tbis fact is material.
■ Tbe denial of defendant’s motion in tbis action is sustained by authoritative decisions of tbis Court; it is supported by well settled legal principles ; it is in accord witb justice, and is botb sustained and supported by sound рolicy.
It cannot be beld as law in tbis State tbat tbe owner of an automobile, wbo as tbe result of tbe wrong or tort of another, bas sustained damages botb to bis automobile and to bis person, and whose automobile is insured against tbe loss or damage which be bas sustained because of-injuries to bis automobile, is put to an election whether or not be shall, in order to maintаin an action against tbe wrongdoer to recover damages for injuries to her person, release tbe insurance company from all liability'to him under its policy. He does not lose bis right of action to recover for tbe injuries to bis person, by accepting from tbe insurance company tbe amount for which it is liable to him, under its policy, because tbe insurance company thereafter upon tbe cause of action which bas accrued to it, recovers of tbe wrongdoer tbe amount which it bas paid tbe owner of tbe automobile in discharge of its liability under tbe policy. Tbis is not unjust to tbe wrongdoer, wbo is thereby required to pay only tbe full amount for which be is liable because of bis wrong or tort. Tbe order denying defendant’s motion is
Affirmed.