Underwriters at Lloyds Ins. v. Vicksburg Traction Co.

Reed, J., delivered the opinion of the court. F. E. O’Neil, on September 5, 1909, while driving his automobile along the streets of Vicksburg and crossing the tracks of the Vicksburg Traction Company, was struck by an electric car. His automobile was damaged and he was injured in his person. He held a policy of insurance on the automobile in the appellant company, dated August 2, 1909. Pursuant to this policy, on November 26, 1909, in consideration of the payment by appellant •of the amount of the policy, as required thereby, Mr. O’Neil executed to appellant an article of subrogation, in accordance with the terms -of the policy, whereby be assigned to appellant all of his right, claim, and interest against appellee for damages to his automobile. In the -policy is the following provision: “In case of payment of loss under this policy, these assurers shall be subro-gated, to the amount of such payment, to all rights of recovery for such loss by the assured against persons, corporations, or estates; and the assured shall execute all papers required, and shall co-operate with these assur-ers to secure these assurers such rights.” On December 16,1909, Mr. O’Neil brought suit against appellee for personal injuries sustained by him in the collision, and recovered a jzidgment. Appellant, as as-signee of O’Neil, afterward brought the present suit against appellee to recover for damages to the automobile. Appellee pleaded as a bar to the action that appellant’s claim fon damag’es was res adjudicata because of the recovery by O’Neil from appellee in the suit for in [250] juries to bis person sustained in the collision, claiming that all injuries from the collision constituted only one cause of action, and could not be split so that separate suits could be brought for the injuries to Ms person and for damages to Ms automobile. A demurrer interposed by appellant to appellee’s plea was overruled by the court, and from such action this appeal is taken. It is contended by appellee that this case is controlled by the decision of this court in the case of Kimball v. Railroad Company, 94 Miss. 396, 48 So. 230. Therein Kimball recovered a judgment against the railroad company for damages done to his horse and wagon while he was attempting to drive across a track of the company at a public crossing in Bilosi. After judgment had been fully satisfied, he brought suit to recover for injuries sustained to his person in the same collision. The court decided that he could not maintain the second action; that the injury to himself and his property was by the same tortious act, and gave rise to but a single cause of action; that the different injuries were merely separate items of damages; and that he was not permitted to split up his cause of action. We see a difference between this case and the Kimball case. Mr. Kimball brought both suits against the railroad company. The entire cause of action was in him when he filed his first suit for damages done his personal property and when he sued to recover for injuries to his person. He himself split his cause of action, which all along was wholly in him. This is not so in the case now before us. Mr. O’Neil had assigned all of his right and interest against the traction company for damages to his automobile before he filed suit for personal injuries. When the suit was entered by him he had no cause of action against the company for damages to the automobile. This disposition by him of his right to damages to the automobile was in pursuance of a policy of insurance written for him by appellant company. It was in accord251 anee 'with, an agreement executed by him to make snch transfer, whereby appellant would be subrogated to all of his rights to recover. Appellant had an equitable interest in the automobile at the time of the collision by reason of having written the policy of insurance. When it was damaged, then, by virtue of the contract of insurance and the article of sub-rogation, appellant had such an interest in the claim for damages. This interest became a right to. sue at law when appellant paid to Mr. O’Neil the amount owing him for loss under the policy and received from him assignment of his claim and was . subrogated to his right to .recover for damages. Therefore, when the suit was filecí by Mr. O’Neil on December 16, 1909, against appellee, the cause of action for recovery for injuries sustained to his person was in Mr. O’Neil, and the cause of action to recover for damages to the automobile was in appellant. There was then two distinct causes of action, two separate rights to recover, in two different persons. In delivering the opinion of the court in the case of Kimball v. Railroad Company, supra, Judge Mayes cited the case of King v. Railway Company, 80 Minn. 83, 82 N. W. 1113, 50 L. R. A. 161, 81 Am. St. 238, and made the following quotation from the opinion in that case: ‘ ‘ That rule of construction should be adopted which will most speedily and economically bring litigation to an end, if at the same time it conserves the ends of justice. There is nothing to be gained in splitting up the rights of an injured party as in this case, and much may be saved if one action is made to cover the subject.” We note, upon examination of the report of the King Case, that both suits were brought by King. The first suit was for personal injuries suffered in a collision with a train of the railroad company, and the second was for damages done to his wagon, horse, and harness. The court decided that he could not split his cause of action. In the Kimball Case, as well as in the King Case, we can see that the ends of justice were conserved by re [252] quiring the parties to bring one suit for their one cause of action. But it does not seem to us that the ends of justice would be conserved in the present case by deciding that the appellant had no cause of action for damages to the automobile because Mr. O’Neil had brought his suit for personal injuries suffered by him — the only cause of action he had against appellee when the suit was filed. It would not “conserve the ends of justice,” but would wort an injustice, to hold that Mr. O’Neil could, as claimed, destroy the right of appellant, vested in the manner above shown, to sue for damages to the automobile by bringing suit for injuries to his person. Appellant could not control Mr. O’Neil’s course in entering suit. Appellant had no interest in his cause of .action for personal injuries, but owned absolutely the right to recover for damages to the automobile. We do not intend to disturb the rule announced in the Kimball Case. As applied in that case we approve it. We do not think it should be stretched to include the case before us. It is not applicable here. We distinguish that case from this. Appellant’s right to recover in this case should not be defeated by Mr. O’Neil’s suit. The ends of justice, the public welfare, will be conserved by holding that appellant, under the facts of this case, has a cause of action against appellee. Reversed and remanded.