Home Insurance Co. v. Lack
| Decision Date | 17 October 1938 |
| Docket Number | 4-5185 |
| Citation | 120 S.W.2d 355,196 Ark. 888 |
| Parties | HOME INSURANCE COMPANY v. LACK |
| Court | Arkansas Supreme Court |
Appeal from Marion Circuit Court; Garner Fraser, Judge; reversed.
Judgment reversed and cause remanded.
Luther H. Cavaness, for appellant.
W. C Wilbanks was the owner of a Plymouth car, and the appellant Home Insurance Company, issued a policy of insurance covering loss and damages to the car as a result of accidents and collisions.
The appellees were the owners and operators of a truck which collided with Wilbank's Plymouth car, causing damage to the same.
The Home Insurance Company and W. C. Wilbanks filed their complaint in the Marion circuit court in which it was alleged that the Home Insurance Company was a corporation engaged in the business of insuring automobile owners against loss and damages to their cars as a result of accidents and collisions. The Home Insurance Company is duly licensed and authorized to do business in the state of Arkansas; that the Home Insurance Company was the insurer of one 1936 Plymouth four-door automobile, the property of one W. C. Wilbanks as evidenced by its policy then effective and outstanding, having been issued by the said Home Insurance Company. It was alleged that on July 13, 1936, W. C. Wilbanks was driving his car in a lawful manner with due caution and circumspection and with careful regard to the rights and safety of others; that a truck driven by appellees negligently struck Wilbanks' car and damaged it in the sum of $ 200; that the Home Insurance Company was forced to pay $ 125.24 as part damages to the Plymouth car, and that W. C. Wilbanks, plaintiff, suffered a loss and damage to the amount of $ 74.76, in excess of that paid by the insurance company, making a total damage of $ 200 suffered by plaintiffs.
Plaintiffs asked judgment for $ 200 and all other relief. Afterwards the appellees filed a demurrer and answer. The court sustained the demurrer, holding that the Home Insurance Company was not a proper party to the suit, and ordered the name of the Home Insurance Company stricken from the complaint. This appeal seeks to reverse the judgment of the lower court holding that the insurance company was not a proper party to the suit.
Appellant argues that the demurrer was not filed in time; that appellees had waived their right of demurrer; but we do not think it necessary to discuss or decide these questions.
Appellant alleged in its complaint that it was compelled to pay $ 125.24 under its policy to Wilbanks; that the damages exceeded the amount of insurance by $ 74.76.
The only question to be determined is whether the insurance company was a proper party to the suit.
Section 1305 of Pope's Digest reads: "Every action must be prosecuted in the name of the real party in interest except as provided in § 1307, 1309 and 1310."
Sections 1307, 1309 and 1310 provide for substitution of a party where assignment is made pendente lite, and suits by foreign executors and administrators, and suits where the state is a party; so that so far as this case is concerned, under the law it must be prosecuted in the name of the real party in interest.
Section 1311 of Pope's Digest reads: "All persons having an interest in the subject of an action, and in obtaining the relief demanded may be joined as plaintiffs, except where it is otherwise provided."
In this case it is shown by the complaint that the insurance company was interested in the subject of the action. The insurance company alleges that it had issued its policy, and was forced to pay under the terms of the policy $ 125.24. It certainly had that much interest in the subject of the action.
It was contended in a case in the Circuit Court of Appeals in Ohio that while the right of subrogation may be enforced in equity or in admiralty in his own name, in courts of common law the right can be enforced only in the name of the insured. The court held that under the strict rules of the common law the right must be in the name of the insured; but the court said: Travelers' Ins. Co. v. Great Lakes Eng. Works Co., 184 F. 426, 36 L.R.A. N.S. 60.
The court in that case also said: "The rule is well settled in fire insurance as well as in marine insurance, that the insurer, upon paying to the assured the amount of a loss on the property insured, is subrogated in a corresponding amount...
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