Clark v. Hutchison

• Decision Date: 14 August 1957
• Docket Number: Civ. No. 4555.
• Citation: 161 F. Supp. 35
• Parties: David CLARK, Plaintiff, v. Ann HUTCHISON, Defendant.
• Court: U.S. District Court — Panama Canal Zone

161 F. Supp. 35

David CLARK, Plaintiff, v. Ann HUTCHISON, Defendant.

Civ. No. 4555.

District Court, Canal Zone, Division Balboa.

August 14, 1957.

Woodrow de Castro, Ancon, Canal Zone, for plaintiff.

W. J. Sheridan, Jr., Ancon, Canal Zone, for defendant.

CROWE, District Judge.

This is an action for damages brought by the plaintiff, David Clark, against the defendant, Ann Hutchison, a minor, 19 years of age, for personal injuries accruing to the plaintiff by reason of defendant's negligence in the operation of her automobile. Plaintiff is a gasoline station attendant and the defendant is alleged to have driven her car alongside the platform and gasoline pump of the said station in a careless and reckless manner so that parts of the automobile protruded over the said platform and collided with the body of the plaintiff causing a painful injury to plaintiff's knee.

Plaintiff prayed for damages in the sum of $1,000 for pain and suffering and special damages of $235.69 for loss of wages and $690.50 for hospitalization and medical expenses.

A guardian ad litem was appointed for the defendant who entered a general denial and a plea of contributory negligence on behalf of the infant defendant.

The defendant through her guardian ad litem made a motion to strike from the complaint the paragraph setting out the claim for hospitalization and medical supplies, which was overruled, and she thereupon amended her answer wherein she pleaded specially that the plaintiff had been paid the sums of $235.69 and $690.50, as set forth in his complaint, and that even if liability on the part of defendant be found, no loss has been incurred by the plaintiff.

A trial was had without jury on January 30, 1958, and the Court adjudged the defendant negligent and that the plaintiff was not negligent and permitted him to recover the sum of $200 for pain and suffering.

The matter of special damages was deferred and the parties entered into a stipulation wherein it was agreed among other things that:

(1) The $690.50 was paid directly from Workmen's Compensation Insurance to Gorgas Hospital by the insurance carrier and was never in plaintiff's possession, custody or control.

(2) The plaintiff received the $235.69 in issue as Compensation Benefits from the insurance carrier in lieu of wages and compensable time lost by reason of the injury, and

(3) If the Court should find the defendant liable that the award of the special damages be held in abeyance subject to the filing of memorandum of law.

Thereafter the attorney for the defendant filed a motion to substitute the Indemnity Insurance Company of North America, Philadelphia, Pennsylvania, alleging that it is an indispensable party plaintiff for the reason that (1) plaintiff has assigned all his right, title and interest to recover damages against the defendant to the aforesaid Insurance Company under the provisions of the Longshoremen's and Harbor Workers' Compensation Act, § 33, Subsection (a), (b) and (i), 33 U.S.C.A. § 933(a, b, i) and, (2) the defendant has a defense against the Insurance Company that he cannot maintain against the prima facie legal owner, the plaintiff, Clark, in that the contract of insurance is void under Canal Zone Code, Title 3, Section 226.

Conclusions of Law

It appears well settled, and it is not contested by the plaintiff, that the objection that an indispensable party has been omitted may be raised at any time by the trial or appellate court on its motion. Title 4, Section 145, Canal Zone Code.

Therefore, the only question that presents itself is whether or not the Indemnity Insurance Company of North America of Philadelphia, Pennsylvania, is an indispensable party, and this does not appear to be true.

The Canal Zone Code, Title 4, Section 122, provides that:

"Every action must be prosecuted in the name of the real party in interest."

The plaintiff in this case is a real party in interest and has the right to maintain the action in his own name.

Several cases in point have been cited in plaintiff's memorandum of February 5, 1958: Huber v. Henry J. Kaiser Co., 71 Cal.App.2d 278, 162 P.2d 693; Clough v. Schwartz, 94 N.H. 138, 48 A.2d 921; Cunnien v. Superior Iron Works Co., 175 Wis. 172, 184 N.W. 767, 18 A.L.R. 678; Roth v. Chatlos, 97 Conn. 282, 116 A. 332, 22 A.L.R. 1558. He has not assigned all of his "right, title, and interest" as he elected to receive only compensation for his loss of wages and medical expenses and to sue the defendant for the damages due for pain and suffering.

The fact that he has been compensated in part by an insurance carrier does not preclude him from prosecuting the action and making a complete recovery.

In United States v. Aetna Cas. & Surety Company, Decided December 12, 1949, in 338 U.S. 366, 70 S.Ct. 207, 215, 94 L. Ed. 171, the court in ruling on Rule 17 (a) of the Federal Rules of Civil Procedure, 28 U.S.C.A., which were specifically made applicable to Tort Claims litigation, and provides that "Every action shall be prosecuted in the name of the real party in interest" stated:

"In cases of partial subrogation the question arises whether suit may be brought by the insurer alone, whether suit must be brought in the name of the insured for his own use and for use of the insurance company, or whether all parties in interest must join in the action. Under the common-law practice rights acquired by subrogation could be enforced in an action at law only in the name of the insured to the insurer's use, Hall & Long v. Nashville & C. Railroad Companies, 1872, 13 Wall. 367, 20 L.Ed. 594; United States v. American Tobacco Co., supra 166 U.S. 468, 17 S.Ct. 619, 41 L.Ed. 1081, as was also true of suits on assignments, Glenn v. Marbury, 1892, 145 U.S. 499, 12 S.Ct. 914, 36 L.Ed. 790. Mr. Justice Stone characterized this rule as `a vestige of the common law's reluctance to admit that a chose in action may be assigned, (which) is today but a formality which has been widely abolished by legislation.' Aetna Life Ins. Co. v. Moses, 1933, 287 U.S. 530, 540, 53 S.Ct. 231, 233, 77 L.Ed. 477 * * *. Under the Federal Rules, the `use' practice is obviously unnecessary, as has long been true in equity, Garrison v. Memphis Insurance Co., 1856, 19 How. 312, 15 L.Ed. 656, and admiralty, Liverpool & Great Western Steam Co. v. Phenix Insurance Co., 1889, 129 U.S. 397, 462, 9 S.Ct. 469, 479, 32 L.Ed. 788. Rule 17(a) was taken almost verbatim

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