Mobile Insurance v. Columbia &c. R. R.

Citations

• 41 S.C. 408
• 19 S.E. 858
• 1894 S.C. LEXIS 131

Syllabus

<p>1. Insurance — Subrogation—Tort.—As the insurer on payment of a loss by fire is subrogated to all the rights of the assured against a person whose tortious act caused the loss, it seems that one of several insurers after payment cannot maintain a separate action against the tort feasor, but that the action should be in the name of the assured for the benefit of the insurers; and, therefore, where a separate action was instituted, judgment obtained, and payment made, the proceeding should be regarded as practically a voluntary payment. Nor did an assignment by the assured to this insurer of its proportion of the loss give any right to maintain a separate action to recover its proportion of damages resulting from an indivisible tort.</p> <p>2. Ibid. — Ibid.—Ibid.—Bar to Action. — Therefore, it follows that the other insurers, holding like assignments, together with the assured, were not barred by such prior judgment and payment, either under the rules of the Code of Procedure or the general principles of law, from maintaining a joint action to recover the damages resulting to them from the fire caused by defendant’s tort.</p> <p>3. Ibid. — Ibid.—Ibid.—Communicated Eire. — The insurers becoming, by payment, subrogated as equitable assignees to the rights of the assured, may join in action to recover from a railroad company the damages resulting from a fire which was caused by sparks from defendant’s locomotive, and for which the defendant is made liable by statute.</p> <p>4. Communicated Eire — Constitutional Law. — The constitutionality of this statute has been declared in McCandless v. Richmond &c. Railroad Company, 38 S. C., 103. 1</p>