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The opinion of the Court was delivered by
Mr. Justice Bonham.
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This appeal is from an order of Judge Sharkey of the Civil Court of Florence sustaining a demurrer. The facts of the case are fully set out in the order appealed from. The conclusion of the trial Judge, which sustains the demurrer, is fully sustained by the authorities cited by him,
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and is satisfactory to this Court. Let the order of the trial Judge be reported.
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Judgment affirmed.
Mr. Chief Justice Stabler and Messrs. Justices Carter, Baker and Fishburne concur.
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Case posture Posture Before SHARKEY, J., Civil Court, Florence, July, 1936. Affirmed.Action by Charles H. Silverman against Herbert Dew, B. Pratt Gasque, and the Glens Falls Indemnity Company. From a judgment sustaining a demurrer of the last-named defendant to the complaint, the plaintiff appeals.
The order of Judge Sharkey requested to be reported follows:
The plaintiff, Charles H. Silverman, a Canadian citizen, became involved on January 27, 1936, in an automobile accident with the defendant Herbert Dew, a citizen of this State, on a public highway in the County of Florence. Dew at the time of the accident was operating the Plymouth automobile described in the complaint herein, and which was almost completely demolished as a result of the collision. In an action brought in this Court by Silverman against Dew for the recovery of damages sustained by the former, he attached the said Plymouth car. This action was tried at the March, 1936, term and resulted in a verdict and a judgment for Silverman in the sum of $1,500.00. Under an execution thereafter issued in that cause, Silverman realized from the sale of the Plymouth automobile the sum of $100.00. The automobile had been purchased by Dew from the defendant B. Pratt Gasque, who in turn had taken from Dew a chattel mortgage thereon for the unpaid balance on the purchase price. At the time of the collision there was in force a policy which had been issued by the defendant Glens Falls Indemnity Company in the name of Dew, payable, according to the allegations of the complaint herein, to the defendant Gasque as his interest might appear, insuring against damages from collision according to the actual value of the car at the time of the collision, with a $50.00 deductible clause. While the described car was held by plaintiff under the aforesaid attachment, the defendant indemnity company paid to Dew and Gasque the actual cash value of the car less $50.00 deducted therefrom, the settlement so made being in the sum of $415.00. Plaintiff in this action sets forth the foregoing allegations of fact, and then alleges:
That the statute creating a lien upon an automobile for damages to person or property due to its negligent or reckless operation on the highways was a part of the contract
entered into by the owner thereof, the defendant Herbert Dew, and the defendants B. Pratt Gasque and Glens Falls Indemnity Company, the said lien by the statute taking precedence of all liens upon the said car except for state and county taxes, and transferring by necessary intendment all rights of other lienholders which might by their adverse exercise defeat such lien.
That the payment of the said insurance to the owner and mortgagee of the Plymouth automobile here involved while under statutory attachment for damages due to its reckless operation on the highways defeated the intention of the statute, rendered the said statute null and void, and was against public policy, practically destroying the plaintiff's lien thereunder.
Plaintiff's prayer is for judgment against the defendants in the sum of $415.00.
The complaint has been challenged by the defendant indemnity company with a demurrer on the ground that it fails to state facts sufficient to constitute a cause of action — the grounds of the demurrer stated in substance being that the complaint shows there was no privity of contract between plaintiff and the indemnity company; that there is no allegation of a breach of any contractual obligation owed by the indemnity company to plaintiff; that the plaintiff was a stranger to the contract; and that he had no legal or equitable interest in the proceeds of the insurance policy.
The legal issues raised by the demurrer have been fully argued before me.
Following the collision referred to, the plaintiff by operation of the statute (Code 1932, § 8785) became entitled immediately to a lien upon the Plymouth car for such damages as he sustained by reason of its negligent operation, but his statutes as a lienee was a thing entirely separate and apart from the purely personal contract of insurance between the indemnity company and the defendants Dew and Gasque. It is true that the statute creating the lien
invested it at the same time with priority over all other liens except those for state and county taxes, but beyond that the statute does not go. There is nothing in the statute itself which would warrant the construction that it became a part of the insurance contract. There is nothing to show any agreement between the parties, either express or implied, which would create any contractual relationship between plaintiff and the indemnity company. Nowhere is there present any circumstances which would support plaintiff's claim to an equitable lien upon the insurance money. The insurance policy being a personal contract, did not run with or attach to the thing insured. The following authorities uphold this view: 26 C.J., p. 445; Swearingen v. Hartford Ins. Co. , 52 S.C. 309 , 29 S.E., 722 ; Planters' Bank v. Ins. Co. , 156 S.C. 453 , 153 S.E., 385 ; 14 R.C.L., p. 1365; Steinmeyer v. Steinmeyer , 64 S.C. 413 , 42 S.E., 184 , 59 L.R.A., 319, 92 Am. St. Rep., 809; Crook v. Hartford Ins. Co. et al. , 175 S.C. 42 , 178 S.E., 254 .
Plaintiff argues that he should be allowed to recover under the doctrine of subrogation, but in none of the facts presented here can I find any element which would permit him to invoke this doctrine. The right of subrogation exists only when one person, who is under some moral or legal duty to do so, pays the debt of another, which debt was a valid enforceable obligation against that person. Such person then steps into the shoes of the creditor and becomes subrogated to the rights which the creditor had previously enjoyed against the primary debtor.
I have been impressed not only with the novelty of the question raised, but also with the apparent fact that the plaintiff has suffered a severe hardship and loss, and hence I have given the matter very careful consideration. Based upon both reason and authority, the only conclusion I am able to reach is that the demurrer should be sustained.
It is so ordered. Source: CourtListener
