Mercer v. New Amsterdam Casualty Co.

189 S.E. 762, 211 N.C. 288, 1937 N.C. LEXIS 68

Opinion

Pee CtjRiam.

Tbe evidence offered by plaintiffs tended to sbow a fact situation substantially as follows :

A motor truck owned by one M. C. Love was damaged as tbe result of a collision witb a truck belonging to one J. S. Wiggins. Tbe plaintiffs beld a lien, by virtue of a registered conditional sales contract, on tbe Love truck. At tbe time of tbe injury Wiggins beld a policy of insurance issued by defendant casualty company, indemnifying bim against liability arising out of tbe operation of tbe Wiggins truck. A representative of tbe defendant, wbo was investigating tbe matter of tbe casualty company’s liability under its policy and negotiating a compromise settlement thereof on bebalf of Wiggins, in accordance witb defendant’s insurance contract witb Wiggins, bad a conversation witb one of plaintiffs and was advised tbat plaintiffs beld a lien on tbe Love truck, and witb tbe consent of Love request was made tbat check for settlement of damages to tbe Love truck be sent to plaintiffs and Love jointly, tbe amount of damages being in excess of amount of plaintiffs’ lien. To this request tbe representative of defendant made no reply.

Subsequently, defendant paid tbe amount of tbe damages for injury to tbe Love truck to Love, wbo executed release therefor. This amount Love used for bis own purposes without repaying plaintiffs’ debt.

Thereupon plaintiffs instituted their action to recover of defendant casualty company tbe amount of their debt against Love, which was secured by tbe conditional sales contract covering said truck.

Under tbe evidence presented in this case, can tbe plaintiffs maintain their action against tbe casualty company? Tbe answer is “No.”

The defendant’s contract was with Wiggins. It was one of indemnity only. Clark v. Bonsal, 157 N. C., 270; Scott v. Bryan, 210 N. C., 478.

The evidence negatives the suggestion of a contract by the defendant to pay the amount of the damage to the plaintiffs, nor does it appear that defendant’s representative bad authority to make such a contract. The defendant was not a tort-feasor. The defendant was under no legal duty to protect the plaintiffs, and assumed no obligation to do so. There was no evidence of fraud or collusion.

So that neither in contract nor in tort are plaintiffs entitled to maintain their action against the casualty company.

The release executed by Love, the mortgagor, to Wiggins, the tort-feasor, and his insurer, would ordinarily bar the mortgagees, the plaintiffs (Harris v. R. R., 190 N. C., 480), and there is nothing in the record here to take this case out of the rule there laid down.

The cases cited by appellants in support of their position (Miller v. Hortman-Salem, Co., 145 Sou., 786 [La.], and Commercial Securities Co. v. Mast, 28 P. [2d], 635), were actions by mortgagees against, tort-feasors.

Judgment affirmed.