Alsup v. Green

• Decision Date: 10 December 1974
• Docket Number: No. 9550,9550
• Citation: 517 S.W.2d 151
• Parties: Rufus ALSUP and Nona Mae Alsup, his wife, Plaintiffs-Appellants, v. Lowell GREEN et al., Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 151

517 S.W.2d 151

Rufus ALSUP and Nona Mae Alsup, his wife, Plaintiffs-Appellants, v. Lowell GREEN et al., Defendants-Respondents.

No. 9550.

Missouri Court of Appeals, Springfield District.

Dec. 10, 1974.

Blanton, Blanton, Rice & Sickal, James D. Sickal, Ross Eshelman, Manuel Drumm, Sikeston, for plaintiffs-appellants.

Claude E. Arnold, Dexter, Briney, Welborn & Spain, Bloomfield, for defendants-respondents.

FLANIGAN, Judge.

Appellants Rufus Alsup and Nona Mae Alsup, plaintiffs below, appeal from an order of the trial court sustaining a motion to dismiss filed by respondents Green and Chrisman, two of the three defendants below. The order of the trial court was improper and is reversed.

The petition was in two counts. In Count I, which was against defendants Green and Chrisman, the plaintiffs alleged that they were the owners of certain described real estate and 'of the buildings and improvements thereon, which said buildings and improvements included a 30 36 frame dwelling with a reasonable market value of $12,000.00 and a 30 40 barn with a reasonable market value of $3,000.00 and a 20 30 barn with a reasonable market value of $2,000.00.'

Count I further alleged that defendants negligently caused an explosion and a fire, which totally destroyed the 'aforesaid dwelling and buildings,' burned 'furnishings . . . personal belongings . . . shrubbery and trees . . .' and caused plaintiffs to incur the expense of occupying rental quarters. The prayer of Count I was for $20,000 and costs.

Count II of the petition, which was against defendant Scott, incorporated the allegations of Count I, pleaded separate acts of negligence on the part of Scott, and requested the same relief.

After depositions had been taken and interrogatories answered, defendants Green and Chrisman filed a motion to dismiss the petition 'for the reason that the plaintiffs have no interest in the cause of action set out.' In the motion the defendants stated: 'On the date on which the house mentioned in Plaintiffs' petition was destroyed by an alleged explosion, said house was insured by a certain policy of insurance issued by Farmers Mutual Insurance Company of Sikeston. Thereafter on November 19, 1968, the plaintiffs did for valuable consideration make and execute to (insurance company) a certain instrument, a copy of which is attached hereto and marked Exhibit 'A' and made a part hereof by which said instrument the said plaintiffs did assign the entire right in and to any cause of action arising from the destruction of said premises.'

Exhibit A, quoted marginally, ¹ was attached to the motion.

The defendants Green and Chrisman, by propounding requests for admissions to the plaintiffs, obtained the following admissions:

1. Plaintiffs executed Exhibit A on November 19, 1968.

2. On November 19, 1968, Farmers Mutual Insurance Company of Sikeston paid to Rufus Alsup and Nona Mae Alsup the sum of $9,950; said payment was payment for the loss of the house by explosion, which explosion is the same explosion mentioned in plaintiffs' petition.

3. Exhibit A was executed pursuant to the terms of an insurance policy issued by Farmers Mutual Insurance Company of Sikeston, whereby the house mentioned in Exhibit A, being the house mentioned in plaintiffs' petition, was insured against loss by explosion.

After the plaintiffs' admissions had been filed, defendants' motion to dismiss was presented to the court and sustained. The court ordered that the 'cause of action against the defendants herein, by (sic) and the same is hereby dismissed, by reason of assignment of all claims and causes of action to Farmers Mutual Insurance Company of Sikeston as shown by Exhibit 'A'.'

If Exhibit A constitutes a total assignment by plaintiffs to Farmers Mutual Insurance Company of Sikeston ('Farmers'), of plaintiffs' tort claims against defendants, the trial court's order of dismissal was a proper one. Steele v. Goosen, 329 S.W.2d 703, 711(11) (Mo.1959); Hoorman v. White,349 S.W.2d 379 (Mo.App.1961).

Exhibit A is strikingly similar to the 'Release and Subrogation Receipt,' the legal effect of which was carefully analyzed in Holt v. Myers, 494 S.W.2d 430 (Mo.App.1973). Said 'Release and Subrogation Receipt' is set forth in Footnote 3 appearing on page 436 of Holt. In Holt, the court discussed and sought to distinguish Ewing v. Pugh, 420 S.W.2d 14 (Mo.App.1967), the case on which defendants principally rely. The Kansas City court in Ewing, apparently construed the instrument before it as constituting an assignment. The validity of that construction may be doubtful.

Adopting the analysis that the court, in the Holt case, accorded to the instrument before it, and applying that analysis to Exhibit A, this court holds that Exhibit A is not an assignment.

Other authorities on which respondents relied are clearly distinguishable. They include Steele, supra, and Hoorman, supra, but both of these cases involved instruments containing an express and total assignment of the cause of action.

In Hayes v. Jenkins, 337 S.W.2d 259 (Mo.App.1960), this court held: '(A) bare legal title to the action is sufficient to maintain an action at law. . . . (T)his is true even though the insured has received 'full payment' for his losses. . . . (I)t is 'no concern of the defendant' whether an insurance company, by reason of having paid (some or all of) the damage, . . . is entitled to subrogation to the proceeds of recovery, or whether the damages are (to be finally) received by the insurer or by the owner . . . or that all of the 'proceeds' of the cause of action have been assigned.'

The Supreme Court of Missouri has cited Hayes with approval. Collier v. Roth, 434 S.W.2d 502, 506 (Mo.1968). Although Collier is not an insurance case, the court dealt with an assertion that subrogation rights were involved. The court stated that the 'subrogation argument is beside the point. . . . (T)he person so injured is the real party in interest as defined by the real party in interest statute, Section 507.010 V.A.M.S., until his 'entire or whole case has been assigned.' Hayes v. Jenkins, Mo.App., 337 S.W.2d 259, 261(3). See also Steele v. Goosen, Mo., 329 S.W.2d 703, 711(11).'

A line of Missouri cases, cited below, ² compels the conclusion that since Exhibit A was not a total assignment of the tort claims the entry of the order of dismissal was erroneous.

It is true, as capable counsel for respondents point out, that in the Holt case the insurance company joined with their assureds, the Holts, as co-plaintiffs. In the Holt case the jury verdict was in favor of the defendant. Count I of the petition, which involved the loss which was only partially insured, prayed judgment in favor of all three plaintiffs, or, in the alternative, for judgment in favor of either the Holts or the insurance company in the total amount prayed. The court discussed the distinction between an assignment of a claim and subrogation to a claim. The propriety of the joinder of the parties and the propriety of their alternative prayers were not attacked. The court pointed out that the defendants 'are not faced with a multiplicity of suits for the reason that both the subrogor and subrogee are parties plaintiffs in Count I of the petition, and only one verdict and one judgment is sought by the parties plaintiffs.' Holt, supra, 494 S.W.2d at 439.

But the issue before this court is the propriety of the order of dismissal. There is no issue of the propriety of joinder of Farmers as a co-plaintiff. However, in State ex rel. Bartlett and Company, Grain v. Kelso, 499 S.W.2d 579 (Mo.App.1973), it was held that the trial court exceeded his jurisdiction in ordering the joinder (and, upon failure to do so, dismissal) of an insurer which held a 'Loan Receipt and Agreement' executed in its favor by the plaintiff. The court held that the loan receipt and agreement constituted strictly a loan, and did not constitute an assignment nor even an instrument of subrogation. However, the court made it clear that it was reaching its decision in light of the provisions of Rule 52.04(b) V.A.M.R., 'as (said rule) existed on February 22,...