Royal Insurance v. Atlantic Coast Line Railroad , 198 N.C. 518 ( 1930 )

PLAINTIFFS'" Appeal.

Stacy, C. J.

Tbe plaintiffs present tbe single question as to whether they are entitled, as a matter of right, to interest on tbe amount of damages assessed from tbe date of tbe destruction of tbe property? We think not, for, under tbe decisions in this jurisdiction, tbe allowance of interest in such cases rests in tbe sound discretion of tbe jury.

Tbe case was tried upon tbe theory that tbe plaintiffs, as subrogees, were entitled to recover, if entitled to recover at all, the fair market value of tbe cotton at tbe time and place of its destruction, plus interest thereon, if tbe jury, in its discretion, should so award, tbe total recovery of plaintiffs, however, not to exceed tbe amounts paid under their policies. 25 R. O. L., 1388. Tbe jury awarded no interest, either as such or as a part of tbe damages, hence, under our decisions, tbe damages fixed by tbe jury, being, as they are, for tortious or wrongful destruction of property, do not, as a matter of law, bear interest until after judgment. Harper v. R. R., 161 N. C., 451, 77 S. E., 415; Devereaux v. Burgwin, 33 N. C., 490; Rippey v. Miller, 46 N. C., 480; Guano Co. v. Magee, 86 N. C., 351; Williams v. Lumber Co., 118 N. C., 928, 24 S. E., 800; Lance v. Butler, 135 N. C., 419, 47 S. E., 488; Stephens v. Koonce, 103 N. C., 266, 9 S. E., 315; Hoke v. Whisnant, 174 N. C., 660, 94 S. E., 446; Chatham v. Mecklenburg Realty Co., 174 N. C., 675, 94 S. E., 447; Acme Mfg. Co. v. McQueen, 189 N. C., 311, 127 S. E., 246; Sears, Roebuck & Co. v. Rouse Banking Co., 191 N. C., 506, 132 S. E., 468; Wilson v. Troy, 135 N. Y., 96; 18 L. R. A., 449; 17 C. J., 824.

Tbe question, therefore, as to whether tbe plaintiffs, under tbe equitable doctrine of subrogation, would be entitled to interest on tbe amounts paid under their policies from tbe dates of such payments, cannot arise as tbe amount of damages awarded by tbe jury is only equal to tbe principal sums paid by tbe plaintiffs without interest. Herring v. R. R., 189 N. C., 285, 127 S. E., S. Tbe right of subrogation, it should be remembered, is not founded on contract, but is a creature of equity and is enforced solely for tbe purpose of accomplishing tbe ends of substantial justice. Memphis, etc., R. R. v. Dow, 120 U. S., 287.

Tbe plaintiffs are not demanding a new trial on tbe issue of damages, but an allowance of interest by tbe court as a matter of right. _ It is sufficient to say that as tbe matter was discretionary witb tbe jury, tbe plaintiffs are entitled to recover no more than the verdict awards. Ins. Co. v. R. R., 193 N. C., 404, 137 S. E., 309; S. c., 195 N. C., 693, 143 S. E., 516.

On plaintiffs’ appeal, therefore, there is .no error.

DEFENDANT’S APPEAL.

Stacy, C. J. No new question is presented by tbe defendant’s appeal. Several exceptions were tbe subject of earnest debate before us, and while they may not be altogether free from difficulty, a careful perusal of tbe entire record leaves us witb tbe impression that tbe defendant has no just cause to complain at tbe manner in which tbe case was tried.

Tbe charge contains one or two expressions, which, standing alone, might be subject to some criticism, but reading it contextually in tbe same connected way in which it was given, as we are required to do, it would seem to be free from reversible error. Hence, tbe verdict and judgment will be upheld.

No error.