Underwriters at Lloyds Ins. v. Vicksburg Traction Co.

Judgment. Splitting cause of action. Subrogation. Insurance. ' Where an insurance company insured an automobile under a policy providing for subrogation, and it was struck and injured by a street car, the owner being injured personally at the same time, and the insurance company discharged its liability under its policy and received an assignment from the owner of his rights for injury to the car, and afterwards the owner recovered judgment against the street car company for his personal injuries, this judgment did not preclude a subsequent suit by the insurance company under its assignment, as owing to the provisions of the policy providing for subrogation, two causes of action arose out of the accident, and there was no splitting of causes which would render a recovery on one a bar to the other.

Appeal from the circuit court of Warren county. Hon. PI. C. Moun&er, Judge. Suit by the Underwriters' at Lloyd’s Insurance Company against the Vicksburg -Traction Company. From .overruling a demurrer to the answer plaintiff appeals. The facts are fully stated in the opinion of the court. We think that the ruling'of the trial judge in holding the recovery in the O’Neil case a.bar to this action was manifest error. We concede that if this suit were brought by O’Neil himself seeking to recover for damages to his automobile that his recovery in the former suit would estop him from any further demand, that under the rul- ■ ing of this court in Kimball v. L. & N. R. R. Go., 48 So. 230, that O’Neil would be unable to maintain his claim. But this suit at bar was not brought by O’Neil and he has no interest in its outcome. He had assigned for value to appellant and all rights he had against appellee for damages to his car at the time, he instituted suit for personal injuries and recovered judgment/ at this time he had no legal ownership in any claim that might exist against ap-pellee for damages to the. automobile. In truth we sub- - mit that the ownership off’the' automobile, in contemplation of the law and so far-.as the claim for damages to it was concerned was pro trnto in the. appellant. This right on the part of appellant was a vested one and could be asserted independently of and even adversely to O ’Neil. In • the Kimball case, the court will observe that Kimball was ■■plaintiff in both cases, after recovering for his horse and wagon he later instituted suit for.personal injuries and this court held the former recovery a bar to the second ■action. In other words the -legal title and beneficial own- -• ership were combined in Kimball.’ Our contention is that as far as O’Neil’s claim for damages to the automobile was concerned, he was exactly in the attitude he would have been in if some one else had owned the car. If the .car had belonged to Mr. A, instead of Mr. O’Neil it can-mot be argued or contended here that the former recovery would constitute a bar to an action by Mr. A for damages to Ms car. ' Counsel for appellee will contend that the assignment’by 0 ’Neil does not distinguish this case from the Kimball case as they had no notice of the assignment. We submit that no notice was necessary and that any failure to receive notice of assignment worked no injury to appellee nor changed its legal status. If appellee had been deprived of any legal defense or any substantive right, counsel might argue this proposition with some force but such is not the case here. Counsel say that an assignee can have no higher or greater right than his assignor. As a general proposition this is true, it is true in this case. We are not seeking to give the appellant, which is assignee, any greater right than the assignor (O’Neil), himself had. But counsel confuse the application of this principle.- The claims for damages for personal injuries and for the automobile are separate and distinct claims and they were made so by contract, by the act of O’Neil when for value he sold his claim for an automobile damage. If O’Neil had, at the same time that he assigned his automobile claim, assigned his claim for personal injuries to appellant, then both claims would have had to be included in the same action. If counsel say that these constituted elements of damage merely, then we answer they were elements of damages hut were elements with diverse and different ownership. We can suppose the case of a fire which destroys a storehouse containing goods and merchandise. The ownership of the store was in one, the ownership of the goods in the store in another, the railroad set out the sparks that caused the fire. In a certain sense the loss of the building and of the merchandise can be said to be each elements of the entire loss or the total damage. The owner of the store brings suit and recovers, then comes the owner of the merchandise and institutes suits for his loss. Certainly the railroad company could not plead the recovery of the first owner as a bar to a recovery by the second owner suing for the loss of his goods, notwithstanding the fact that each claim is for an element of damage that accrued at the saíne time and by the same act, a recovery in one case could not constitute a bar in the other because the elements are the property of different individuals. Just so in the case at bar, the ownership being in different parties, the right to assert claim for damages is open to both, independently of each. By this construction of the law justice would be subserved and no right of appellee sacrificed. Counsel for appellant concedes that if this suit had been brought by O’Neil to recover for the damage to his automobile that he would be precluded from recovery by reason of the former suit. He states that as the suit at 'bar was not brought by O’Neil but by his assignee, the appellant, that it is not precluded from recovery. When he confesses that O’Neil would have no standing in court, this is practically a confession that O’Neil’s assignee has no standing in,court. “The assignee takes the chose subject to all counterclaims against the assignor then held by the debtor, and to arrangements made between the debtor and the assignor prior to the time when the debtor receives, notice of the assignment. ’ ’ 46 Cyc. 86. The plea of the appellee sets up the fact that it had no notice of the assignment at the time the said suit was brought by the said O'’Neil, and it had no notice of this assignment at the time it paid the judgment for injuries to the person of the said O’Neil, the assignor of appellant could give appellant no greater right, than he himself had. “The general rule is that the unqualified assignment •of a chose in action vests in the assignee of the title thereto to the same extent as the assignor had it on the date of the assignment and no more.” 4 Cyc. 80. “Only the assignors rights vest in the assignee.” 4 Cyc. 80, note 90; Railroad v. Wilson, 83 Miss. 224. The injuries sustained by 0'’Neil, the assignor of the appellant, to his person and to his property were received at one and the same moment as the result of one and the same tortuous act. He had only one right of action for which he could recover. "Where one sustains injuries to his person and property by the same tortious act, the different injuries are merely separate items of damage and constitute only one cause of action. Kiinbel v. Louisville & Nash. R. R. Go., 48 So. 230 ;Y.SM. V. R. R. v. Paine, 45 So. 705; Scott v. So. Ry. Go., 47 So. 531; Golwnb v. Webster Mfg. Go., 43 L. R. A. 190. A party injured in his person and his property in the same tortious act, who sues for and recovers and is paid the damages to his property, cannot afterwards recover, for injury to his person, since he is not permitted to split up his cause of action. Kimbal v. R. R. Go., supra. The converse of the above proposition is true. A party receiving injury to his person and his property and sues for and recovers for injury to his person, cannot after-wards recover for injury to his property, since he cannot split his cause of action. The appellant is attempting to bring forward in this subsequent suit an item of O’Neil’s damage which should have been made a part of the eaxise of action in the suit of F. E. O’Neil in which he recovered. The question of the damage to the automobile should have been presented in that case. The law is that it is not what the parties actually litigate in the former suit, but what they might and ought to have litigated under the issues made in that suit. Certainly the same questions of negligence would be presented in defending the suit at bar as were presented in the former suit of O’Neil, and, therefore, it would simply be a rehash relative to another item, on the original canse of action, with the same witnesses, and with the expense necessarily incident to the prosecution of another suit. • The appellant cites no authorities to sustain his contention and by a most diligent search we have been unable to find any to sustain its contention.