Farmer v. Union Ins. Co. of Ind. , 146 Miss. 600 ( 1927 )

^* Corpus Juris-Cyc References: Actions 1CJ, p. 119, n. 27, 28; Evidence, 22CJ, p. 968, n. 89; Insurance, 33CJ, p. 43, n. 44 New; Judgments, 34CJ, p. 506, n. 59; p. 521, n. 52; p. 835. As to whether injury both to person and property at the same time as constituting more than one cause of action, see annotation in 50 L.R.A. 161; 36 L.R.A. (N.S.) 240; 51 L.R.A. (N.S.) 319; 1 R.C.L. 347; 1 R.C.L. Supp. 111; 5 R.C.L. Supp. 22. On right to subrogation of insurer as affected by release by insured of person causing loss, see 14 R.C.L. 1405; 3 R.C.L. Supp. 397. This is an appeal from a judgment sustaining a demurrer to a replication to a plea, and dismissing the suit.

The declaration is on an insurance policy issued by the appellee on an automobile owned by the appellant, which declaration alleges that the automobile was struck by a train of the Yazoo Mississippi Valley Railroad Company while being driven across the tracks of the company by its owner, one of the results of which was that the automobile caught on fire and was so far consumed as to be a total loss. To this declaration, the appellee filed a special plea, alleging, in substance:

That the policy contained the following subrogation clause:

"And upon payment of any loss, damage, claim, or expense under this policy, the company shall be subrogated to the extent of such payment to all rights of recovery of assured against others for such loss, damage, claim, or expense, and the company shall be entitled, if it so desire, to institute, conduct, and prosecute, in the name of the assured, or in its own name, any claim of the assured for indemnity, damages, or otherwise against any third party."

That Farmer sustained personal injuries when his automobile was struck by the train and that he sued the railroad company for damages both to his person and to the automobile. While the suit was pending, Farmer amended his declaration so as to eliminate any claim for damages to the automobile, and an agreed judgment was then rendered in his favor against the railroad company for the sum of three thousand dollars, which he has collected, thereby releasing the railroad company from liability for the destruction of the automobile and rendering inoperative the subrogation clause of the insurance policy, because of which the insurance company is relieved from liability on the policy.

A demurrer to this plea was overruled, and Farmer replied thereto that he agreed to the rendition of the judgment against the railroad company on condition that the declaration be so amended — "as to eliminate therefrom any claim against said railroad company for damages to his said automobile, stating as reasons for such condition that the amendment was desired for the reason that said plaintiff, J.H. Farmer, intended to hold the Union Insurance Company of Indiana liable for his loss through the damage by fire to his said automobile, under its policy of insurance sued on herein, and intended to proceed by suit against that insurance company to enforce collection of such amount as might be due him from said company."

A demurrer to this replication was sustained, and, upon Farmer's declining to plead further, the suit was dismissed.

The injury inflicted on Farmer's person and his automobile, when struck by the train, constitutes a single cause of action, and can only be split into more than one cause of action in exceptional cases necessary for conserving the ends of justice.Kimball v. Railroad Co., 94 Miss. 396, 48 So. 230. Such an exceptional case was Underwriters at Lloyd's Insurance Co. v.Vicksburg Traction Co., 106 Miss. 244, 63 So. 455, 51 L.R.A. (N.S.) 319. That case is similar to the one at bar in that an automobile, while being driven by its owner across the tracks of a traction company was struck by a car, resulting in injury to both the owner's person and to his automobile. It differs from the case at bar in this: There the owner of the automobile received from an insurance company which had issued a policy on the automobile, the amount of the damages thereto, and assigned his claim therefor against the traction company to the insurance company under a subrogation clause in the policy. Thereafter the owner of the automobile recovered a judgment against the traction company for injuries to his person. The insurance company sued the traction company for the injury to the automobile, and this judgment in favor of the owner of the car for injury to his person was pleaded by the traction company in bar of the suit. Here the judgment against the railroad company was recovered and paid before the insurance company was called on to pay for the injury to the automobile, and when it had no interest therein except the right to be subrogated to the right of the owner of the automobile to recover from the railroad company for injury thereto in the event it should be called on to comply with its promise to the owner of the automobile to pay him therefor. Compare Fewell v. New Orleans Northeastern Railroad Co.,144 Miss. 319, 109 So. 853.

The promise of the insurance company to pay Farmer for injury to his automobile was conditioned on its becoming thereby subrogated to his right of action for damages against the person who inflicted the injury thereto; and, when he released the railroad company from liability for injury to the automobile, he destroyed the right of subrogation of the insurance company to his cause of action therefor, and thereby released it from liability on its promise to pay for injury to the automobile.

By his replication to the plea. Farmer sought to avoid this rule by alleging facts which, according to his contention, show that he did not release the railroad company from liability to be sued by the insurance company for injury to the automobile in the event it should pay therefor under the terms of its policy; and, in support thereof, he invokes the rule which is set forth in 14 R.C.L. 1405, par. 568, as follows:

"Where the insurer releases the wrongdoer, reserving in the release his rights against the insurer, the reservation necessarily includes the right of the insurer to sue the wrongdoer; otherwise the reservation would be ineffective."

Assuming that this is a correct statement of the rule, and that the facts alleged in the replication indicate that Farmer intended to reserve a right of action for the insurance company against the railroad company, the rule can have no application here, for the reason that the settlement made by Farmer with the railroad company was at the end of a lawsuit in which both the railroad's interest and his were fixed by a judgment to which the law attaches certain legal consequences, which cannot be restricted by parol in a collateral attack on the judgment, for "judicial records required by law to be kept are said to import unerring verity, and to be conclusive evidence against all the world as to their existence, date, and legal consequences."Jones v. Williams, 62 Miss. 183; Murrah v. State,51 Miss. 652; 34 C.J. 506, 521. Compare McCraney v. New Orleans N.E. Railroad Co., 128 Miss. 248, 90 So. 881, and the cases on which it is based, where the ground of the attack on the judgment was that its rendition was fraudulently procured. If Farmer intended to reserve a right of action against the railroad for injury to the automobile, the judgment should have so recited.

Affirmed.