Birmingham Ry., Light & Power Co. v. Aetna Accident & Liability Co.

• Decision Date: 18 November 1913
• Citation: 64 So. 44,184 Ala. 601
• Court: Alabama Supreme Court
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. AETNA ACCIDENT & LIABILITY CO.

64 So. 44

184 Ala. 601

BIRMINGHAM RY., LIGHT & POWER CO. v. AETNA ACCIDENT & LIABILITY CO.

Supreme Court of Alabama

November 18, 1913

Rehearing Denied Dec. 18, 1913

Appeal from Birmingham City Court; John H. Miller, Judge.

Action by the AEtna Accident & Liability Company against the Birmingham Railway, Light & Power Company, for damages to an automobile. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

The complaint originally was in the name of the AEtna Accident &amp Liability Company, a corporation, and alleges that the Corey Highland Land Company owned an automobile which was insured by plaintiff, and, while operating it along the streets of Birmingham, it was negligently run into or against a street car of the defendant company, and badly broken and injured. The complaint further alleges that the land company proved its loss in the sum amounting to $1,500, which was paid to it by the plaintiff, which it was compelled to do under its policy, and that subsequently thereto, but previous to the institution of this suit, the said land company assigned to this plaintiff such right of action as accrued to it by reason of the aforesaid negligence, and such right of action by virtue of said assignment, as well as by subrogation, is now the property of the plaintiff. The complaint was afterwards amended as set out in the opinion.

Plea 5 is as follows: "Defendant says that the driver of said automobile, at the time and place complained of, was guilty of negligence which proximately contributed to the alleged damage to said automobile, which negligence consisted in this: Said driver of said automobile with knowledge that defendant's car was approaching on said street car track and that it was probable or likely that the said automobile he was driving down defendant's said track could not likely mount the rails of the said track and get out of the way of danger from being struck by said car then and there approaching, nevertheless he negligently continued to drive said automobile down said track at a high rate of speed in the direction of the said car, which was approaching, meeting said car, and as a proximate consequence of the said negligence of said driver said car collided with said automobile, causing the damage complained of."

Tillman Bradley & Morrow and Frank M. Dominick, all of Birmingham for appellant.

Allen &amp Bell and W.H. Sadler, Jr., all of Birmingham, for appellee.

DE GRAFFENRIED, J.

The Corey Highland Land Company, a corporation, owned an automobile which it had insured with the AEtna Accident & Liability Company against loss or damages suffered in collisions. The automobile collided with a car of the Birmingham Railway, Light and Power Company, and was damaged. The insurance company paid all the damages suffered by the owner of the automobile on account of such collision, and the insurance company, claiming that the collision was due to the actionable negligence of the Birmingham Railway, Light & Power Company or of its agents or servants while acting in the line or scope of their employment, brought this suit, not in the name of the owner of the automobile, but in its own name, to recover the sum which it had paid out on account of such injury to such automobile.

1. Section 2490 of the Code of 1907 provides that "in all cases where suits are brought in the name of the person having the legal right for the use of another, the beneficiary must be considered as the sole party on the record."

Section 3667 of the Code of 1907 provides that "when judgment is rendered against the plaintiff, in any suit brought in the name of a nominal plaintiff for the use of another, judgment for costs must be rendered against the beneficiary, or his personal representative."

The above provisions of our present Code, in which we have supplied the italics, were referred to by this court in Ex parte Bromberg, 121 Ala. 361, 25 South, 994. In that case this court said: "The statute having thus changed the common-law rule and established the use of plaintiff's relation to the suit as that of a principal party, and having placed him upon the same footing with other plaintiffs in reference to his liability for costs, the same necessity existed for requiring him to secure costs when residing out of the jurisdiction as existed in the case of other nonresident plaintiffs." Indeed, since the passage of the above-quoted statute the nominal plaintiff has in reality not been a party to the record; his presence in the record being purely pro forma. Ex parte Bromberg, supra.

In the instant case the complaint and each count of it, when fairly construed, shows that the AEtna Accident & Liability Company is the only party who lost anything by reason of the injury to the automobile, and that any recovery which may be had in this case must be for the exclusive benefit of said accident company. This being true, the said accident company has a right to amend its complaint by adding to the complaint, as the nominal plaintiff, the name of the Corey Highland Land Company, and proceed with the cause just as if the suit had been originally brought by the Corey Highland Land Company for the use of said accident company.

As the judgment in ...