*1 No. the Balti- by Merger Successor Company, Home
The v. Appellee, a Corporation, Company, more-American Insurance Harvey Lamar, Appellants. Mark E. Boehm No. Cartage Company, as Healzer doing business W. Healzer,
John Harvey Lamar, Appellants. v. Mark E. Appellee, (228 514) P. 2d Opinion March 1951. filed Olathe, cause, Lodge, argued Payne, L. Herbert Howard E.
Olathe, appellants. him on the briefs for the Thomas, City, argued cause, Stanley, E. of Kansas Leonard and Arthur J. Jr., Schroeder, Stanley, Weeks, E. City; and Lee E. Arthur all of Kansas J. J. Little, Olathe, Boyle, Chauncey City, Mo., Dan Eugene B. Kansas Q. Wetzel, Park, appellees. with him of Overland on the briefs for the of the court was delivered by opinion These two cases out of grow a collision between a Smith, J.: Cartage Healzer Company being driven one direction tractor car and a highway being on a driven from the opposite is from an direction. The order appeal granting plaintiffs new of damages only. trials on the defendants have ap- actions were consolidated in the trial pealed. court and were here. together submitted 38,094, petition alleged that a truck belonging Healzer, Cartage Company, the Healzer doing business as 50 and defend- in a westerly highway direction driven
being hay- between a tractor pulling caused a collision ants *2 an to defendant Boehm and automobile belonging belonging rake Lamar, the into the knocking path defendant automobile truck, its driver to slacken swerve the truck causing speed and to ditch, into the the truck and its damaging cargo. that in he was negligent with alleged petition east without and Lamar was hayrake lights the
a tractor pulling and his car at a excessive rate driving high in that was negligent turned his suddenly automo- of speed, saw, truck, seen, and he or have into the could path bile to his in time for peril obliviousness of the driver Lamar to to the have averted in the truck safety damage cargo by with giving some of his or warning sign approach stopping yielding truck, so, but Lamar failed to do right-of-way thereby damage to the the truck. causing cargo of further that at petition alleged plaintiff time had issued a of insurance on the policy cargo the truck. The petition then cargo set out amount of certain had firms in the truck as follows:
“E. S. Cowie Electric Co .............................. $240 00 Co., Raynolds Devoe & Inc.......................... 1673.25 Brands, Standard Inc.......................... 73 20 Supply U. S. Co ........................... 183 39”
The petition alleged that cargo such was damaged as a of result of negligence defendants and plaintiff had above firms $2,538.94 and had been their assigned rights. Judgment prayed that amount.
The defendants demurred to this petition on the ground that the an plaintiff was insurer and had no in which capacity to maintain the action. This demurrer was overruled.
Their joint and separate answer was first a general denial and an that allegation if plaintiff sustained any damages it was caused by of of driver the truck. The answer also al- leged plaintiff no legal capacity to sue and the allegations of the petition were not sufficient to constitute a cause of action favor of the plaintiff against defendants. 38,095, Healzer filed a petition against the two de- allegations
fendants. The negligence were identical alleged the plaintiff and in addition the other case the allegations in the amount damaged trailer had been truck and that his in the amount use of it $3,000 loss of and he had sustained in the the defendants $1,000. He for prayed $4,000. amount of consisting filed an answer defendants each of the
To this contributory negligence allegation of a denial and general his driver. on the part plaintiff filed a in each case the plaintiff
To the answer of defendants denial. actions were consolidated reply by way general stipulation. objected
In advance of the trial defendants case the introduction of evidence for the reason legal had no sue. capacity
In made the objections. case No. defendants same connection objections plaintiffs pointed with these out that the Home Insurance had a policy cartage insurance with *3 Baltimore Maryland Company and that to pursuant company paid directly to several policy shippers named the amount of their loss and had received from each of them a written receipt authorizing Baltimore Maryland Insur- ance to institute an action for the amount. These actions maintained the Home Insurance being Company, a suc- by merger Maryland cessor Baltimore Insurance Company. Healzer, It was W. agreed doing business as The Healzer John was the assured of Cartage Company, the Home Insurance Com- 38,094. in case No. These pany, plaintiff objections to the intro- duction of the evidence were overruled and it was agreed the cases be tried. At the close of plaintiff’s evidence the demurrer of each defendant to the evidence was overruled. The jury re- $1,000 turned a verdict for case No. in favor of Lamar. Healzer, 38,095, case of the jury found in favor of the against Boehm and assessed the amount of recovery of $1,250 and found in favor of Lamar. The jury answered special follows: attempt suddenly Reynolds stop Elmer truck he “1. Did was driv- ing. A. Yes. yes,’ question then is answered state: one If “2. Reynolds emergency. confronted with a Elmer sudden A. Was “a. Yes. emergency, you if find the sudden one existed? A. caused “b. What lights. Rake attached without Tractor Reynolds negligently operate “3. Did Elmer his truck at the time and place question? A. No. question ‘yes,’ particulars “4. he If No. 3 is answered then state in what _. operated his truck? A. ‘yes’ “5. If No. 3 answered then also state: damage to the “a. Whether that contributed to the __ cargo. A. negligent performed “b. Whether the act or acts were or occurred after emergency emergency. a sudden arose as a result a sudden _.A. Reynolds according “c. Whether his best Elmer acted driver, ordinary prudent considering as an reasonable and _ time within which had to act and the circumstance. A. LaMar, ordinary “6. Should Defendant in the exercise of care have hay stopped seen the rake in time to have his automobile and have avoided going portion highway? over on of the Southwest half of the A. No. ‘no,’ why “7. If No. 6 is answered then state defendant Lamar hay lights. did not see the rake until about feet fifteen therefrom. A. No “8. was the What reasonable cost or amount of: Repair tractor; “a. . A. $200.00. Repair trailer; “b. A. $400.00. replacement equipment; “c. Rental of A. None. cargo loss; $1,000.00. “d. Value of the A. R. S. Whitley,
“/s/ “Foreman.” In case the plaintiff moved the court to vacate the verdict in favor of Lamar grant and to it a trial new as against on account of the abuse of court, discretion by the accident and surprise, plaintiff was not afforded reasonable opportunity present his evidence and be case, heard on the merits er- court, roneus rulings erroneous instructions by the court; verdict was contrary the evidence and for newly discovered evidence. The plaintiff also moved tire court for an order entering judgment against the defendant Lamar and grant- *4 a trial on new the ing plaintiff of question damages only. that motion the plaintiff of stated support that Lamar was guilty which caused the of negligence, emergency in question, a mat- law, ter of and was plaintiff entitled to judgment Lamar, against a of Plaintiff as matter law. also filed a motion to set aside the 2a, 2b, 3 7 answers to and and to a grant new trial on that the answers were grounds not supported by the evidence. a a Plaintiff also filed motion for new trial against defendant Boehm damages of only. question plaintiff Home Insurance Company filed judg- a motion for Boehm filed motion. The defendant
an identical the verdict for the reason the verdict notwithstanding ment to judgment. him to be entitled showed pleadings to special questions answers jury’s The trial court ordered aside, motion for judg- sustained plaintiff’s and 7 should be set sustained dámages only, Boehm on the of against question ment Lamar, aside the ver- set judgment against motion for plaintiff’s dam- pay plaintiff of ordered Lamar to plaintiff, dict favor entitled, trial for the ordered a new to which ages, plaintiff which should judgment the amount ascertaining purpose Lamar, motion for a new overruled Boehm’s against be entered trial, to special questions, to set aside the verdict answers and overruled defendants’ notwithstanding the verdict for judgment the court and to the right jurisdiction objections the action. bring plaintiff the defendants have appealed.
From this order of error are that the court erred in overruling specifications Their of the Home Insurance Company, to the petition their demurrer to the introduction of on behalf of objection their their demurrer to the evidence of overruling plaintiff, either motion of defendant overruling post-trial each plaintiff, a trial and to set aside the verdict and answers for new and for the ver- notwithstanding to special questions all of the motions dict, sustaining post-trial plaintiffs, Lamar, in favor of entering judgment the judgment aside setting Lamar, a against granting new trial of each in favor Lamar on the only, setting defendant 6 and 7 and a special questions granting answers to new trial aside damages only. Boehm on defendant their demurrers first to the Home Insurance argue, Defendants have been sustained because it was not petition Company’s actually and because the petition pleads in interest party the real action based on a tort. right They argue assignment an action in its such own name when bring may insurer it, where the entire loss has been paid been has loss entire or wrongdoer, where the insured fails the insurer in part in his own name. The action statement as to what bring correct. hardly No motion was made in the petition pleaded this to make more definite and certain— defendants interpretation liberal favor of the must be hence *5 is A reasonable to be pleader. interpretation pleading goods damaged, fully paid had been whose shippers, for their and as- by petition pleads payment loss the insurer. The Such were signment rights shippers subrogation. not the action based on tort. The use of words allegations of an was, had in mind indicates that what the “by subrogation” pleader from contract the insurance relationship parties springing and the owed the the carrier. We dealt with duty shippers 300, McGinnis, in argument such as this Hume v. 156 Kan. 133 P. 2d 162. a trailer destroyed by There had been fire and the insurer insured the total amount of paid the the loss. It then began the action the tort-feasor in name insured. The trial court sustained on a demurrer the ground that did not have sue. capacity to We first stated that there was in liability no the case of the tort-feasor money to the insurance for the company paid insured. We then reviewed authorities on the question of the name in which the action be brought such cases. conclusion we said: study “After a parties of the two recent cases that are relied on this case we have reached conclusion that there is no real reason for the whereby crept distinction that has into the law in a situation of this sort the brought action should be in the name of the partly insured when the loss is paid. and in fully the name tire if really insurer is loss It is no brought concern of the just tort-feasor whose name the action is so he will compelled pay net be twice for the same loss.” also, Tice, New (See, City York Ins. v. Co. 159 Kan. 152 P. 836.) 2d The trial court ruled correctly overruling defendants’ demurrer to the Home Insurance Company’s petition. argue
Defendants next the trial court erred in overruling their demurrer to plaintiff’s ground the testimony of the driver of plaintiff’s showed him to be guilty contributory negligence as matter law. We must examine this with the rule in mind that we will not weigh every evidence and reason- is able inference to be resolved favor plaintiff. The burden of this seems to argument be that the truck driver was driving his lights dimmed and on that account could not see far enough ahead to the collision. The prevent answer to this argument that the truck driver saw the Lamar car approaching, he saw it turn road; suddenly onto his side of the until that happened, there was to assume that obliged in front of him to see. He not nothing *6 demurrer to the evidence the Lamar car would do such thing. was overruled. correctly argues Boehm next that the trial court erred over-
Defendant to the intro- objection his motion for a new trial because his ruling where the in the action Home duction of been and the verdict was should have sustained of both have heretofore contrary disposed was evidence. We these arguments. sustaining that the trial court erred argue
The defendants next motions, verdicts in their favor wherein the plaintiff’s post-trial aside, guilty were the court to be they were set found a new law plaintiffs as matter of negligence only. Lamar points them on the trial that Lamar to found jury special out answer his not in time car and did hay stop seen the rake to should not have argument it. basis of this away it until fifteen feet from see naturally was difficult lights rake had no on hay able to stop so as be see. Hence the rule that one must drive his headlights visible means of objects within the distance become not apply. does from yards he not over five testimony
Lamar’s own showed it; car his suddenly jerked when he first saw hay rake rake. He admitted hay so collided with the doing left and hour, dust all over fifty bugs miles an with the driving he was the car but He hindered his control of his windshield. denied this it. draw own conclusions about the court entitled to its finding trial this warrant the court conclude was sufficient to We a matter law. quilty trial is affirmed. court view that I am inclined C. (dissenting): Harvey, J. be all the issues. new trial should concurs in the result. J.,
Thiele,