Taylor v. Green , 242 N.C. 156 ( 1955 )

87 S.E.2d 11 (1955) 242 N.C. 156

Rodney TAYLOR and Calvert Fire Insurance Company
v.
Susie B. GREEN.

No. 455.

Supreme Court of North Carolina.

April 20, 1955.

Mordecai, Mills & Parker, Raleigh, for appellant.

Ruark, Young & Moore and B. T. Henderson, II, Raleigh, for appellee.

DENNY, Justice.

In this jurisdiction, when the owner of an insured automobile brings an action for damages to such automobile against one whose negligence allegedly caused the damage, the court may, in its discretion, on motion of the alleged tort feasor, make the insurance company which has indemnified the owner for only a part of the damages to the automobile, an additional party plaintiff or defendant. Burgess v. Trevathan, 236 N.C. 157, 72 S.E.2d 231, and cited cases. See also Gaither Corp. v. Skinner, 238 N.C. 254, 77 S.E.2d 659; Colbert v. Collins, 227 N.C. 395, 42 S.E.2d 349; Guthrie v. City of Durham, 168 N.C. 573, 84 S.E. 859; McIntosh, North Carolina Practice and Procedure, section 209, page 184 et seq. But such is not the established procedure in this jurisdiction with respect to making the insurance carrier of the alleged tort feasor a party to the action.

When an insurance company pays a claim in full, it becomes the real party in interest and must sue in its own name to enforce its right of subrogation against the tort feasor. G.S. § 1-57. But, when it pays the insured in part only for the loss sustained, the insurance company is subrogated pro tanto in equity to the rights of the insured against the tort feasor and by virtue of that fact it holds an equitable interest in the subject matter of the action and becomes a proper although not a necessary party to the litigation. Burgess v. Trevathan, supra.

On the other hand, this Court has held that in an action ex delicto for damages proximately caused by the alleged negligence of the defendant, his liability insurance carrier is not a proper party defendant. Jordan v. Maynard, 231 N.C. 101, 56 S.E.2d 26; Scott v. Bryan, 210 N.C. 478, 187 S.E. 756; Johnson v. Hoffler & Boney Transfer Co., 204 N.C. 420, 168 S.E. 495; Clark v. Bonsal & Co., 157 N.C. 270, 72 S.E. 954, 48 L.R.A.,N.S., 191. Ordinarily, in the absence of some special circumstance, it is not permissible under our decisions to introduce evidence of the existence of liability insurance or to make any reference thereto in the presence of the jury in the trial of such cases. Jordan v. Maynard, supra; Scott v. Bryan, supra; Luttrell v. Hardin, 193 N.C. 266, 136 S.E. 726; Bryant v. Welch Furniture Co., 186 N.C. 441, 119 S.E. 823; Stanley v. Whiteville Lumber Co., 184 N.C. 302, 114 S.E. 385; Hensley v. McDowell Furniture Co., 164 N.C. 148, 80 S.E. 154; Featherstone v. Lowell Cotton Mills, 159 N.C. 429, 74 S.E. 918; Lytton v. Marion Manufacturing Co., 157 N.C. 331, 72 S.E. 1055, Ann.Cas.1913C, 358.

The reasons why the liability insurer may not be made a party defendant in an action in tort against its insured is stated clearly and concisely in Annotation: Liability Insurer and Insured—Joinder, 20 A.L.R.2d, page 1099 et seq., as follows: "Ordinarily when a liability or indemnity policy is taken voluntarily, the contract is one by which the insurer undertakes to indemnify or save harmless the insured (and no one else) from any liability of the risks insured against. There is no privity of contract between the insurer and the third person injured or damaged by the acts of the insured to enable such person to sue the insurer either directly in a separate action or jointly in the same action with the insured. The insurance contract is procured by the insured for his own protection, and not for the protection of a third person who may sustain an injury. In the absence of an enabling statute, therefore, or a policy provision having that effect, the latter may not proceed against the insurer, at least not until he has secured a judgment against the insured with an execution thereon returned unsatisfied. See also 29 Am.Jur., Insurance, section 1080, page 810.

The appellant contends in its brief that the insurance policy issued by the Ohio Farmer's Insurance Company and held by the defendant is subject to the provisions of the Motor Vehicle Safety and Financial Responsibility Act of 1953, being codified in G.S.Supplement 1953, sections 20-279.21 through 20-279.39. There is nothing in the pleadings to support this contention. Furthermore, the defendant states in her brief that she merely has an automobile liability policy which she voluntarily purchased. Therefore, since the record before us does not raise this question, we will neither discuss nor consider whether or not the plaintiff Calvert is entitled to have the defendant insurance carrier made a party defendant pursuant to the provisions of that act.

The ruling of the court below is

Affirmed.

BARNHILL, C. J., took no part in the consideration or decision of this case.