Pittman v. Snedeker

140 S.E.2d 740 (1965)

264 N.C. 55

Lynda Joyce PITTMAN by her Next Friend, Sam L. Pittman, Jr. v. Munson Ray SNEDEKER, Original Defendant, Isa W. Pittman, Additional Defendant.

No. 114.

Supreme Court of North Carolina.

March 17, 1965.

*742 David S. Henderson, New Bern, for appellant.

Barden, Stith, McCotter & Sugg, New Bern, for defendant appellee.

RODMAN, Justice.

Appellant assigns as error the failure of the court to find that the policy of insurance issued by the United Services Association to Snedeker obligated it to: (a) defend suits brought against its insured for damages resulting from the negligent use of his automobile; (b) to pay, not in excess of its policy limits, any judgment rendered against its insured; and (c) the insurance company, on payment, would be subrogated to the rights of the insured.

A sufficient answer to this assignment of error is the failure of appellant to include in her evidence the policy issued to Snedeker. Since the policy was not offered in evidence, Judge Morris could not know what its provisions were, and could not make any findings with respect thereto. Manifestly, this assignment cannot be sustained. Nonetheless, the failure to make the finding has not prejudiced appellant. More than half a century ago, this Court expressly declared that where an insurer compensates its insured for loss sustained by the wrong of another he is subrogated to all of the rights of its insured. Cunningham v. Seaboard Air Line R. R. Co., 139 N.C. 427, 51 S.E. 1029, 2 L.R.A.,N.S., 921. The conclusion then reached has been reaffirmed in multitudinous subsequent cases. Burgess v. Trevathan, 236 N.C. 157, 72 S.E.2d 231; Lyon & Sons, Inc. v. N.C. State Board of Education, 238 N.C. 24, 76 S.E.2d 553; Milwaukee Insurance Co. v. McLean Trucking Co., 256 N.C. 721, 125 S.E.2d 25; Phillips v. Alston, 257 N.C. 255, 125 S.E.2d 580; Jewell v. Price, 259 N.C. 345, 130 S.E.2d 668; Nationwide Mutual Insurance Co. v. Spivey, 259 N.C. 732, 131 S.E.2d 338.

The right of subrogation, or substitution of the insurer for the insured, does not take place until the insurer has complied with its obligation and made payment to *743 its insured. Liles v. Rogers, 113 N.C. 197, 18 S.E. 104.

Appellant's other assignments of error are based on the contention that Snedeker's insurance carrier is seeking contribution from a joint tort feasor; this right arises only by virtue of our statute, G.S. § 1-240; the statute does not permit a tort feasor's subrogee to maintain an action for contribution. She relies on Lumbermen's Mut. Casualty Co. v. United States Fidelity & Guaranty Co., 211 N.C. 13, 188 S.E. 634, and Herring v. Jackson, 255 N.C. 537, 122 S.E.2d 366, to support her position.

Joint tort feasors were not, at common law, entitled to contribution. Bell v. Lacey, 248 N.C. 703, 104 S.E.2d 833; Potter v. Frosty Morn Meats, Inc., 242 N.C. 67, 86 S.E.2d 780; Godfrey v. Tidewater Power Co., 223 N.C. 647, 27 S.E.2d 736, 149 A.L.R. 1183. That right has now been accorded by statute, G.S. § 1-240; but under our decisions, it is a personal right. It is not one that can be assigned or transferred by operation of law under the doctrine of subrogation. That is the holding in Herring v. Jackson, supra; Squires v. Sorahan, 252 N.C. 589, 114 S.E.2d 277; Lumbermen's Mutual Casualty Co. v. United States Fidelity & Guaranty Co., supra, and like cases.

Appellant ignores the factual differences between the cases on which she relies and the present case. The difference is vital. In Herring v. Jackson, supra, Herring's insurance carrier, the real party in interest, caused an action to be instituted against Jackson to enforce the asserted right of contribution which G.S. § 1-240 accords joint tort feasors. It was held the action could not be maintained in Herring's name because he was not the real party in interest, nor in the name of the insurance carrier because the statute limited the right to maintain such actions to tort feasors. It is not an assignable cause of action.

In Lumbermen's Mutual Casualty Co. v. United States Fidelity & Guaranty Co., supra, plaintiff, a subrogee, sought to recover from the liability insurance carrier of a tort feasor.

Here, plaintiff sued Snedeker for $25,000. Snedeker had insurance protection for $10,000. He could not compel plaintiff to sue the additional defendant, plaintiff's grandmother, with whom plaintiff was riding. Since plaintiff elected to sue Snedeker alone, no judgment could be rendered in her favor against Mrs. Pittman. Bell v. Lacey, supra; Norris v. Johnson, 246 N.C. 179, 97 S.E.2d 773. But plaintiff, exercising her prerogative to sue Snedeker alone, could not deprive him of the right accorded by statute to have his joint tort feasor made a party, and her liability to Snedeker determined.

The verdict and judgment rendered in May 1963 settled the question of contribution. The court properly decreed that Snedeker, upon payment of plaintiff's judgment, recover of the defendant, Isa W. Pittman, one-half of the amount paid plaintiff.

The cancellation of plaintiff's judgment against Snedeker established the additional defendant's liability. An assignment of the judgment obtained by plaintiff was not necessary to impose liability on the additional defendant. The moment plaintiff's judgment was satisfied Mrs. Pittman became a judgment debtor. Her liability as a tort feasor merged in the judgment.

There has been no cancellation of the judgment for which appellant is liable. She makes no claim that she has paid the debt which a court of competent jurisdiction has solemnly declared she owes. She seeks to escape her obligation because an insurance company made the payment as required by its contract with the original defendant. The insurance company was not a volunteer. If Snedeker had borrowed the money from someone under no obligation to make a loan, and, as security for the loan, assigned his judgment in favor of the additional defendant, no one would *744 question the right of the assignee to enforce the judgment against the additional defendant. No sound reason appears why the insurance carrier should be penalized for performing its contractual obligation.

Mrs. Pittman can, by paying the amount for which she is liable to the Clerk, have the judgment against her cancelled, G.S. § 1-239. If she elects not to pay, the judgment may be enforced by execution issuing thereon. Jones v. Franklin's Estate, 209 N.C. 585 183 S.E. 732; Peebles v. Gay, 115 N.C. 38, 20 S.E. 173; Hanner v. Douglass, 57 N.C. 262; Connely v. Bourg, 16 La.Ann. 108, 79 Am.Dec. 568; Sprigg v. Beaman, 6 La. 59; Garvin v. Garvin, 27 S.C. 472, 4 S.E. 148; 2 Freeman on Judgments (5th Ed.) § 1059.

Affirmed.