Barnhill v. Brown

• Decision Date: 11 September 1937
• Citation: 16 N.E.2d 478,58 Ohio App. 188
• Parties: BARNHILL v. BROWN.
• Court: Ohio Court of Appeals

16 N.E.2d 478

58 Ohio App. 188

BARNHILL v. BROWN.

Court of Appeals of Ohio, Fourth District, Athens.

September 11, 1937

Syllabus by the Court.

1. Where one who has suffered loss by the act of a wrongdoer has been fully indemnified by an insurer for such loss and the insurer has become subrogated to all of the rights of the insured, an action against the wrongdoer must be prosecuted in the name of the insurer. Cox v. Cincinnati Traction Co 32 O.C.A. 487, 35 O.C.D. 824, approved and followed. In such action the question of whether the insured has been fully reimbursed for the loss sustained is one of fact for the jury.

2. Where one who has suffered loss by the act of a wrongdoer has been indemnified by an insurer in an amount assumed to be only a part of such loss, an action against the wrongdoer must be prosecuted in the name of the insured to recover the full amount of such loss. The insurer is a proper but not necessary party to such action and may be brought into the case by either the insured or wrongdoer.

Carlisle O. Dollings, of Columbus, and John W. Bolin, of Athens, for appellant.

Woolley & Rowland, of Athens, for appellee.

BLOSSER Judge.

Stella F. Barnhill filed her petition in the Court of Common Pleas of Athens county against Fred E. Brown seeking to recover $500 for personal injuries, $25 expended for medical services as a result of such injuries and $245 for damages to an automobile owned by her, all of which damages were alleged to have been the result of a collision between an automobile owned by her and an automobile owned by Fred E. Brown. It was further alleged that the collision was caused by the negligence of Fred E. Brown. The answer of the defendant denied any negligence on his part. By cross-petition defendant sought damages for personal injuries resulting from the collision, which he alleged was caused by the negligence of the driver of the plaintiff's automobile. The reply amounted to a general denial.

During the trial of the case to the court and a jury the plaintiff was called as a witness and on direct examination testified as to the manner in which she claimed the collision between the two automobiles occurred, the extent of her injuries, and to the fact that her automobile was completely demolished. The cross-examination developed that she had received about $34 for the damaged automobile in a trade for a new car. She was then asked on further cross-examination if she had received anything in restitution for the damages to the wrecked car. Plaintiff objected to this question and at the direction of the trial court the jury retired from the court room. The court did not at any stage of the trial rule on this objection.

The following proceedings were had in the absence of the jury. The plaintiff testified that the damage to her automobile was $245 and that she had received about $34 for the wrecked automobile. It was developed by her testimony that the General Exchange Insurance Company had issued to her a $50 deductible policy of insurance under which she stood the first $50 of the damage to her wrecked automobile. The company had paid her $195 on account of such property damage. This left a balance of $16 on this item of damage for which she had not been reimbursed. The defendant then moved the court to dismiss the cause by reason of defect of parties plaintiff, and, in the alternative, that the plaintiff's cause of action be dismissed so far as recovery for damages to plaintiff's automobile exceeding the sum of $50 was prayed for, and further moved alternatively that unless the damage to plaintiff's automobile exceeded the sum of $195 that her cause of action for such damage be dismissed. The trial court overruled the several motions of the defendant.

The jury then returned to the court room and the trial proceeded with the cross-examination of the plaintiff. She was first asked if she had received anything in restitution for the damages of her automobile. An objection of the plaintiff to this question was sustained. The next question propounded to plaintiff by counsel for the defendant was whether the General Exchange Insurance Company had paid her $195 in partial payment of the damage to her automobile. Counsel for the plaintiff objected to this question and moved the court to withdraw a juror and continue the case at the costs of the defendant. The trial court sustained the motion and continued the case at the costs of the defendant for misconduct of counsel appearing for the defendant. This ruling of the court was later embodied in a journal entry and the motion of the defendant for a new trial overruled. A motion of the defendant that the insurance company be made a party to the action was then filed and overruled. The defendant thereupon gave notice of appeal to this court upon questions of law.

I. The first question presented for consideration is the competency of the question asked the plaintiff on cross-examination by counsel for the defendant in the presence of the jury, as to whether she had received anything in restitution for the damages to her automobile. Following this the jury was excused as set forth above.

It is held in the syllabus in the case of Cox v. Cincinnati Traction Co., 32 O.C.A. 487, 35 O.C.D. 824:

'Where one who has suffered an injury has been fully indemnified by a liability insurance company and the insurer has become subrogated to all the rights of the insured, the party so fully indemnified cannot prosecute an action against those whose negligence caused the injury. Such action must be brought in the name of the subrogated insurer.'

This rule was followed with approval in the opinion in the case of Schmidt v. Cullen, 15 Ohio Law Abs., 562, at page 564. It is held in the syllabus of this case:

'The owner of an automobile damaged in a collision, who has been compensated by an insurer in an amount assumed to be only part of such damages and who has assigned to the insurer his rights to the extent of such payment, is not entitled to recover against the wrongdoer in an action brought by himself alone without joining the insurance company, if the damages suffered are found to be no greater than what has been paid him.'

The opinion in the Schmidt Case discloses that the undisputed testimony showed the loss suffered by the insured was more than the amount paid by the insurer. The trial court refused to give a special instruction to the effect that if the jury found the plaintiff had been fully compensated by the payment made by the insurer on account of the damage suffered the plaintiff could not recover and the verdict must be for the defendant. A majority of the Court of Appeals held that the trial court erred in refusing to give this instruction to the jury. The other member of the court, while accepting the rule thus laid down, dissented on the ground that the instruction should not have been given since the undisputed testimony disclosed the loss suffered was more than the amount of insurance paid.

Counsel for the defendant in this case had the right to establish whether the plaintiff had been reimbursed by an insurer for the loss sustained by her because of property damage in the collision, and if so the extent of that reimbursement, so that it could be determined whether she had been partially or wholly reimbursed by an insurer for that item of damage. Counsel for the defendant likewise had the right to establish whether the plaintiff had been reimbursed by an insurer for the loss sustained by her because of personal injury in the collision, and if so the extent of that reimbursement, so that it could be determined whether she had been partially or wholly reimbursed for that item of damage. These were questions of fact for the determination of the jury. Schmidt v. Cullen, supra. If it developed that the plaintiff had been fully reimbursed for her property and personal damage then the rule announced in the two cases cited would apply and the plaintiff could not maintain this action.

It follows that the objection of counsel for the plaintiff to the question under discussion should have been overruled at the time it was made.

II. The second question for determination is presented by the action of the trial court in overruling the motion of the defendant that the action be dismissed because of defect of parties plaintiff and also overruling the two alternative motions.

Section 11241, General Code, provides: 'An action must be prosecuted in the name of the real party in interest * * *.'

Section 11254, General Code, provides: 'All persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs except as otherwise provided.'

Section 11256, General Code, provides: 'Parties who are united in interest must be joined, as plaintiffs or defendants. If the consent of one who should be joined as plaintiff cannot be obtained * * * he may be made a defendant.'

Construing the last two sections the Supreme Court held in the case of Clark, Ex'r v. McClain Fire Brick Co., 100 Ohio St. 110, 125 N.E. 877:

'The provisions of section 11256, General Code, relate only to persons united in interest, and as to them section 11256, General Code, is mandatory; but section 11254, General Code, relates to persons who are not united in interest, but who have any legal or equitable interest in the subject of the action and in obtaining the relief demanded, and permits but does not require them to be joined as plaintiffs.'

Where the loss suffered by an insured through the act of a third person exceeds the amount paid by an insurer the authorities are generally agreed that at common law the action must be prosecuted in the name of the insured. Under codes of procedure where the statutes require...