Appeal by intervenor-plaintiff below from a judgment of nonsuit induced by adverse rulings on pleadings. Code 1940, Tit. 7, § 819.
Mrs. Fayrene H. Nicholson, as administratrix of the estate of James Henry Nicholson, deceased, brought suit against Mrs. Lena Brewer Loftin to recover for the wrongful death of said decedent in an automobile collision and also damage to his automobile involved in said collision. As last amended, the complaint consisted of four counts, with counts 1 and 2 charging the defendant with negligence and wantonness, respectively, in causing said decedent's death, and counts 3 and 4 charging negligence and wantonness, respectively, in damaging the automobile.
Motors Insurance Corporation, after being granted permission to intervene in the case, filed therein, on May 10, 1963, its complaint as a party plaintiff. The complaint claimed of the defendant the sum of $1432.75, based on the following:
"* * * on to-wit: January 10, 1963 the intervenor had in full force
On May 13, 1963, the following judgment was rendered, viz.:
Each of the other parties separately interposed similar demurrers to the complaint in intervention on May 20 and 24, 1963. The demurrers were sustained on June 27, 1963.
Due to the adverse rulings on the demurrers, the intervenor moved for a nonsuit. The motion was granted and a judgment of nonsuit was rendered on July 22, 1963. This appeal is from that judgment.
The assignments of error relate to the rulings on the demurrers. The decisive question presented by the demurrers is whether the intervenor (Insurance Company), in paying to the decedent's personal representative the claim due under the policy, became the subrogee of the personal representative with the right to maintain the action given the personal representative by Act No. 113, appvd. Feb. 14, 1956, Acts Special Sessions 1956, Vol. I, p. 170 (Recompiled Code 1958, Tit. 7, § 123(1)). Our conclusion is that the demurrers were sustained without error and that the judgment appealed from is due to be affirmed.
Undoubtedly, the claim under the insurance policy was part of, and belonged to, the decedent's estate, while the personal representative's claim for damage to decedent's automobile is derived from Act No. 113, supra, which "does not create a right in the estate of the decedent but creates a right in the personal representative of the estate of the decedent and provides for the distribution of damages recovered thereunder according to the statute of distributions."
Since the claim under the insurance policy constituted a part of the decedent's estate, it follows that the Insurance Company's payment of the claim to the decedent's personal representative necessarily was for the purpose of satisfying that obligation and not the personal representative's statute-given cause of action. The claim against the Insurance Company under its policy, which inures to the benefit of the decedent's estate and is subject to payment of his debts and liabilities, and the claim given by the statute, which provides for distribution of damages recovered thereunder according to the statute of distributions, are separate and distinct. Accordingly, payment of the claim under the policy did not make the Insurance Company a subrogee with respect to the personal representative's statutory claim.
If the cause of action for the damage to decedent's automobile had survived him in favor of his personal representative, so that the damages recovered would constitute a part of his estate, that situation might be a proper basis for subrogation. But it has been held that such cause of action does not survive. See: McDowell v. Henderson Mining Company, 276 Ala. 202, 160 So.2d 486, 488-489; Standard Accident Insurance Company v. Whitset, 270 Ala. 334, 336, 118 So.2d 922, supra. We consider the holdings in those two cases to be dispositive of the one now before us.
The following from Whitset is equally appropriate here, viz.:
The judgment appealed from is affirmed.
LIVINGSTON, C. J., and LAWSON and COLEMAN, JJ., concur.