79 So. 7 | Ala. | 1918
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 Ætna Accident Liability 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.,
In the case of Coffman v. L. N. R. R. Co.,
In A. G. S. R. R. Co. v. Altman,
"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,
In the case of Long v. K. C., M. B. R. R. Co.,
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 been 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 which 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.
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.
We are also of the opinion that the *587 evidence was sufficient for submission to the jury upon the question of negligence as alleged in the complaint, and that the court committed error in giving the affirmative charge for the defendant.
For the errors indicated, the judgment is reversed, and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and McCLELLAN, MAYFIELD, SOMERVILLE, and THOMAS, JJ., concur.
SAYRE, J., dissents.