Dippel v. Hunt
| Decision Date | 06 November 1973 |
| Docket Number | No. 2,No. 46101,46101,2 |
| Citation | 517 P.2d 444 |
| Parties | Bill DIPPEL, Appellant, v. Grace HUNT, Appellee |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
Donley & McMillin, Weatherford, for appellant.
Ivester, Ivester & Ivester, Sayre, for appellee.
Upon discovering plaintiff's own insurance company had paid him for his burned up car, the trial court vacated a jury verdict awarding plaintiff the value of the car on the ground his insurance company, not he, was the 'real party in interest'--the only person or entity who could prosecute the action. Plaintiff challenges the legality of the ruling.
On a clear, crisp December day in 1970 defendant, Grace Hunt, set out to burn weeds and thistles inhabiting the wide, shallow, gently sloping highway right-of-way or bar ditch which adjoined her farmland along a stretch of several hundred feet.
Billows of off-white smoke arose and drifted northward across the road. Plaintiff says he saw the blinding veil but the presence of a bridge not far ahead caused him to think that the smoke emanated therefrom for a short distance. This thought proved to be in error and upon driving into the smoky area he found no early end to it as he expected. So dense was the smoke it obscured the blacktop road causing plaintiff to let his car go onto the sodded shoulder where flames from the still burning grass leaped up high enough to set it afire. Defendant, who was not far away, saw Bill Dippel's car afire and said, 'Bill, you are on fire, get out.' And he did.
The following March this suit was filed blaming loss of the $2,250 car and its $200 worth of contents on defendant's negligence. On its face plaintiff's petition discloses naught but that he is the real party in interest. Only a general demurrer attacking the sufficiency of the facts alleged to support a judgment in plaintiff's favor was filed before answer. On the same day the demurrer was filed--May 7, 1971--an answer and cross-petition were also filed. The answer was short enough--merely a general denial. The cross-petition alleged that plaintiff made untrue allegations in his petition in that he 'knew or should have known . . . Defendant did nothing to do any damage to the Plaintiff . . . and the cause of action was filed maliciously with the purpose of intimidating the Defendant . . ..' Plaintiff's demurrer to the cross-petition was sustained pursuant to stipulation of the parties shortly thereafter. Later, on January 3, 1972, defendant filed an 'Amended Answer' which contained no general denial but elaborated on certain specific denials and blamed the whole thing on plaintiff's 'negligent acts and attitude . . . in driving off the highway . . ..'
Trial took place February 7, 1972. The jury returned a verdict for plaintiff for $2,175 based on an instruction that the only two 'elements of possible damages' were: (1) to plaintiff's car 'which is agreed to be the sum of $2175.00'; and (2) the 'fair cash market value of personal property in car which was destroyed, but not to exceed $50.00.'
During the trial plaintiff was taken into the judge's chambers where defendant's attorney was permitted to examine him 'to establish the fact that his insurance carrier paid him for the damage to his car and the contents, and that he . . . signed a subrogation agreement with the insurance company that if a recovery was made that they would get the money . . . (and) if this be true that this subrogation claim is not assignable and therefore Bill (Dippel) doesn't have interest in the suit.' In his brief testimony plaintiff swore he lost his car on which he 'had insurance' but that the carrier had not paid him anything and he had not signed a subrogation claim.
Evidently the court treated defense counsel's earlier statement as an 'objection' which he overruled. At the close of plaintiff's case defendant dictated into the record that he 'renews all objections of record heretofore made concerning this matter, and in addition thereto demurs to the evidence . . . because . . . it is wholly insufficient . . . to justify . . . a verdict in favor of the plaintiff . . .' and further moved the court to direct a verdict for defendant. The court thereupon overruled 'each of the Motions previously made . . . the demurrer . . . and motion for directed verdict . . ..'
At the close of all evidence defendant attacked only the sufficiency of the evidence to support a finding of negligence by renewing her 'demurrer.' The court treated it as a motion for a directed verdict and overruled it.
Following this defendant filed an unverified motion for a new trial on February 14, 1972. Of the nine numerical paragraphs of 'causes' for vacating the verdict, seven were various forms of assailing the sufficiency of the evidence to support the cause of action, one said plaintiff was conclusively shown to have assumed the risk, and the ninth complained of an instruction.
On February 28, 1972, an 'affidavit' purporting to have been executed by plaintiff was filed. It recited that the statements he previously made to the court 'were erroneous' and that he 'was paid the sum of $2250.00' by Farm Bureau Insurance Company under the comprehensive provision of a policy he carried with it, but he had not been paid anything for the lost personal items in the car when it was destroyed.
On February 29, 1972, defendant filed an instrument entitled 'Amendment to Motion to New Trial.' Therein she alleged that 'her pleadings raised the question, who the parties in interest were in this lawsuit, alleging or stating to the Court, that the insurance company had paid the claim to the plaintiff herein, and the insurance company was a real party at (sic) interest . . . pleadings . . .' which the court overruled. Next, defendant mentioned plaintiff's trial testimony about not having been paid for any of his loss and the affidavit apparently contradicting it. In conclusion defendant said she 'believes that she can prove that the testimony given . . . (at trial regarding receipt of money from his insurance company) . . . is not true and . . . this conduct . . . is entitled to be considered as a test of creditability to the plaintiff's testimony . . . and should be' considered by the court in passing on defendant's new trial motion.
The court heard the motion on October 16, 1972, and 'sustained' it 'by reason of the fact that the court finds that the real party in interest is Farm Bureau Insurance Company and that the proposition set forth in defendant's motion for a new trial is true and the action is required to proceed further in the name of the real party in interest, Farm Bureau Insurance Company.'
Plaintiff advances two general propositions of error: (1) the verdict is sustained by sufficient evidence; and (2) the court erred in sustaining defendant's motion for new trial. The first, if not irrelevant, is but a subtopic of the second. Indeed, defendant's response ignores it and argues a single theme: a new trial is warranted because plaintiff was not the real party interested in the outcome of the action, thus had no standing to prosecute it.
In going through the record it seems to us two important questions present themselves: (1) Does the record support the conclusion that plaintiff was not the real party in interest? (2) Did defendant protect her right to raise the issue by timely objecting?
Both questions must be answered in the negative. That an objection to plaintiff's lack of legal interest in a lawsuit must be timely and properly raised else it is waived was settled long ago. See syllabus 2 in J. E. Crosbie, Inc. v. Fisher, 188 Okl. 415, 109 P.2d 1075 (1941) citing Shick v. Enid Clinic, 184 Okl. 484, 88 P.2d 329 (1939). The objection must be raised by specifying it as a ground of a demurrer if a basis for it is disclosed in the petition--otherwise it must be asserted in the...
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...amount of tort damages. See, e.g., Beaird v. Brown, 58 Ill.App.3d 18, 15 Ill.Dec. 583, 373 N.E.2d 1055, 1058, (1978); Dippel v. Hunt, 517 P.2d 444, 448 (Okla.Ct.App.1973); Southard v. Lira, 212 Kan. 763, 512 P.2d 409, 414 Farm Bureau contends that the collateral source rule does not apply t......
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