New v. Public Service Co. of North Carolina, Inc.

Shaep, J. The judgment of the court below must be reversed upon the authority of Burgess v. Trevathan, 236 N.C. 157, 72 S.E. 2d 231, wherein Ervin, J., speaking for the Court, said: “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 tort-feasor 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. . . . 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. . . . 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 subro-gation.” Id. at 161-62, 72 S.E. 2d at 234. That opinion further pointed out that, even in those cases in which the insurer, claiming to have paid the total loss, sues alone to enforce subrogation from the tort-feasor, the insured is a proper party-defendant. This is true because, until the verdict establishes the amount of the damage, it cannot be known “whether insurer is the sole or partial owner of the cause of action.” Id. at 162, 72 S.E. 2d at 234. Similarly, the insurer is a proper party when its insured sues the alleged tort-feasor, who alleges that the insurer has paid the full amount of the loss and is the real party in interest. Obviously, in a situation such as this, the alleged tort-feasor cannot assert a cause of action for relief against insurer in the ordinary sense. The purpose of making the insurer a party is to determine and to ■protect, in one action, the rights of all who may have an interest in the litigation. Nationwide is not a necessary party to this action, but it is a proper party. Motors v. Bottling Co., 266 N.C. 251, 146 S.E. 2d 102; Burgess v. Trevathan, supra. Whether it should have been joined was a matter addressed to the sound discretion of the trial court which heard the motion. Judge Morris, after a hearing, made Na [140] tionwide a party and his decision is not reviewable. “(0)rdinarilyr an order allowing a motion for the joinder of an additional party is not appealable.” Burgess v. Trevathan, supra at 159, 72 S.E. 2d at 232. Accord, Simon v. Board of Education, 258 N.C. 381, 390, 128 S.E. 2d 785, 792; Raleigh v. Edwards, 234 N.C. 528, 67 S.E. 2d 669; 3 Strong, N. C. Index, Parties § 8 (1960). Aware of the foregoing rule, no doubt, Nationwide excepted to the order making it a party and did not attempt the futility of a direct appeal from Judge Morris’ order. Instead, it demurred to Service Company’s third further answer on grounds which can only be characterized as frivolous. The judgment sustaining the demurrer and dismissing Nationwide from the action is Reversed.