Wyker v. Texas Co.
79 So. 7
Ala.
1918
Check Treatment
GARDNER, J.

It appears from the foregoing statement of the case, the plaintiff claimed damages in the sum of $500, as a result of a collision of his car with the team of the defendant company; and plaintiff insisted in his testimony that his car was damaged in said sum. Upon cross-examination, over the plaintiff’s objection, defendant introduced a release executed by the plaintiff to the ¿Etna Accident & Diability Company, releasing and discharging said company from all liability under the policy of insurance on said car, for the damages which occurred on this occasion. This release was in consideration of the sum of $200, and further stipulated that the insurance company was subrogated to the amount of such payment to the right of recovery of *586 the plaintiff for such loss or expense against the persons who caused or contributed to said loss. The rights of subrogation therefore, as set forth in said release, are limited to the amount of the payment of $200. 'Said release is here construed as merely subrogating the insurance company for recovery of the limited sum so expended by it, and not as a transfer of the plaintiff’s right of action for the damages suffered.

In the case of B. R. L. & P. Co. v. Ætna A. & L. Co., 184 Ala. 601, 64 South. 44, the action was originally brought in the name of the insurance company, the company having paid in full the damages suffered by the owner of the automobile. It therefore appeared that the insurance company was the only party who had suffered any loss. As to whether or not the cause of action could have been prosecuted under these circumstances by the insurance company in its own name was mooted, but not decided. It was there held that, as a matter of course, the company had the right to amend the complaint by adding as the nominal plaintiff the name of the owner of the car, and proceed with the cause as thus amended in the name of the owner for the use of the company.

In the case of Coffman v. L. & N. R. R. Co., 184 Ala. 474, 63 South. 527, was presented a situation somewhat analogous to that here under consideration, in that the amount of insurance paid the owner did not equal the value of the property damaged, and therefore did not cover the full loss to the owner. It was there held that when property which is insured against loss by fire is burned through the actionable wrong of another, the insured and insurer are, in contemplation of law, in so far as the loss is concerned, one person, and that' the insured may, for his own benefit and for the benefit of the insurer, sue the wrongdoer for the loss caused by the wrong. In that case it was also stated that the subrogation agreement, similar to that here involved, had no bearing upon the issues in the cause, and was of no value as evidence.

In A. G. S. R. R. Co. v. Altman, 191 Ala. 429, 67 South. 589, in discussing the status of nominal and beneficial plaintiffs, the court said:

“In all such cases the rights and status of the equitable, beneficial, or use plaintiff are fixed by the rights and status of the nominal plaintiff; the nominal and use plaintiffs, in such cases, being regarded as one person.”

In Sou. Garage Co. v. Brown, 187 Ala. 484, 65 South. 400, it was said that the only effect of bringing the suit to the use of the insurance company was to declare a use for the company, and operated merely as an estoppel on the part of the plaintiff to deny, as against the company, its rights to the proceeds.

In the case of Long v. K. C., M. & B. R. R. Co., 170 Ala. 635, 54 South. 62, it was held that the question as to who will be entitled to the proceeds of the recovery, the insurer or the insured, is a matter between them, and constitutes no defense in an action of damages against the wrongdoer.

In Sou. Ry. Co. v. Blunt & Ward (C. C.) 165 Fed. 258, in discussing the question in whose name the cause of action should be brought in cases of this character, where the owner was reimbursed by the insurance company only partially for the loss sustained, it was said:

“If from the pleadings it appeared that the Transportation Mutual Insurance Company had paid to the plaintiff only a part of the loss, they would be jointly interested in the recovery from the indemnitors, Blunt & Ward, and the plaintiff could maintain the action in its own name and recover the full amount of the loss. As to the amount paid by the insurance company, it would become a trustee for said company. If the insurance company had paid' the plaintiff all of the loss, then this suit should be by the insurance company alone in the name of the railway company as the nominal plaintiff for the use of the insurance company. If only a part of the loss had beeri paid by the insurer, the insured would be entitled to the residue; and how the money recovered is.to be divided between them is a question whch interests them alone, and in which the defendants are not concerned.”

The question was again discussed in Webb v. Sou. Ry. Co. (D. C.) 235 Fed. 578, where several authorities are collated.

[1] The exact question here presented does not seem to have been previously determined by this court, but we are of the opinion that the logic of our cases, as above cited, as well as those noted in the authorities of other jurisdictions, sustain the view that, in a case of this character, where the owner has been reimbursed by the insurance company only partially for the loss suffered, and the latter thereby subrogated to the rights of the owner only to the extent of the payment of such partial loss, the right of action is in the owner, and he may maintain the suit in his own name; and that the question of the distribution of the proceeds of recovery in such cases is a matter concerning only the owner and the insurance company, and with which the wrongdoer is not concerned.

The release here offered in evidence was introduced for the evident purpose of disclosing that the plaintiff had entirely parted with his right of action, and that he could not therefore maintain the suit. The record shows that this was the view accepted by the trial court. What we have herein stated is sufficient to disclose our opinion that this release was inadmissible for such purpose —and what is here said on this question is confined to that particular purpose — and the objection thereto should have been sustained.

[2] We are also of the opinion that the *587 evidence was sufficient for submission to tbe jury upon the question of negligence as alleged in tbe complaint, and tbat tbe court committed error in giving tbe affirmative charge for tbe defendant.

For the errors indicated, the judgment is reversed, and tbe cause remanded.

Reversed and remanded.

ANDERSON, O. J., and McCLELLAN, MAYFIELD, SOMERVILLE, and THOMAS, JJ., concur. SAIiRE, J., dissents.