Ellis Canning Co. v. International Harvester Co.
| Decision Date | 11 April 1953 |
| Docket Number | No. 38910,38910 |
| Citation | 255 P.2d 658,174 Kan. 357 |
| Parties | ELLIS CANNING CO. v. INTERNATIONAL HARVESTER CO. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
1. Where a loss to property, covered by a fire insurance policy containing a subrogation clause, is sustained by the insured as a result of a third party's negligence and the total amount of the loss has been paid by the insurer the right of action against the alleged wrongdoer vests in the insurer who, under the provisions of G.S.1949, 60-401, becomes the real party in interest and must bring the action for his reimbursement if one is to be maintained.
2. In an action such as is described in the first paragraph of this syllabus plaintiff's motion to strike the third paragraph of the answer and its demurrer to the same paragraph of that pleading, each based on the ground allegations of such paragraph to the effect plaintiff had been fully compensated for its loss by the insurance carrier were insufficient to constitute a defense to the action or show that plaintiff was not the real party in interest and hence had no legal rights to maintain it, were overruled. Held no error.
3. Hume v. McGinnis, 156 Kan. 300, 133 P.2d 162, is overruled and whatever is said and held in City of New York Ins. Co. v. Tice, 159 Kan. 176, 152 P.2d 836, 157 A.L.R. 1233, which may be properly construed as holding that an insured owner, who has been fully compensated for his loss, may maintain an action for the use and benefit of the insurer is disapproved.
James E. Smith, of Topeka, Arthur L. Claussen, of Topeka, on the briefs, for appellant.
Ralph W. Oman, of Topeka, James A. McClure, Robert L. Webb, Philip E. Buzick, Robert A. McClure and James D. Waugh, all of Topeka, on the briefs, for appellee.
This was an action by an insured for the use and benefit of the insurer to recover the amount of a fire loss from a third party for alleged negligence causing such loss. The appeal is from rulings of the trial court on plaintiff's motion to strike and its demurrer to the third paragraph of the defendant's answer.
The facts of the case are of title importance to a decision of the issue involved and there is no dispute between the parties regarding the contents of the pleadings which can be stated in summary fashion.
In its petition plaintiff alleged that in furnishing service on its tractor defendant negligently started a fire in that vehicle resulting in damage amounting to $479.79; that plaintiff was insured in The Potomac Insurance Company against the loss, under a policy containing a subrogation clause; that it had been paid in full for the amount of its loss; and that it had commenced and was maintaining the action to recover such amount in its own name for the use and benefit of the insurance company.
Defendant's amended answer denied seriatim all acts of negligence set forth in the petition; admitted all allegations of that pleading respecting insurance, the amount of the loss, and the fact such loss had been fully paid by the insurance company; and then, in the third paragraph thereof, after admitting plaintiff was seeking to bring the action as claimed in the petition, alleged and charged, that since plaintiff was seeking to recover the amount paid to it by the insurer as full compensation for the loss of the tractor, the insurance company was the real party in interest and plaintiff had no legal right to maintain the action.
Plaintiff's motion to strike paragraph three of the answer and its demurrer to the same paragraph of that pleading, each based upon the premise the facts stated in such paragraph were insufficient to constitute a defense to the action or show that plaintiff was not the real party in interest and hence had no legal right to maintain it, were overruled by the trial court. This appeal followed.
The appellant insists, the appellee concedes, and we agree, the sole question involved is whether the insured (appellant), after having been paid the full amount of its loss, is a real party in interest...
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State v. Paulson
...party. See City of New York Ins. Co. v. Tice, 159 Kan. 176, 182, 152 P.2d 836 (1944), overruled on other grounds Ellis Canning Co. v. International Harvester Co., 174 Kan. 357, Syl. ¶ 3, 255 P.2d 658 (1953). Because of our resolution of the issue, we need not undertake an exegesis of Kansas......
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Appalachian Ins. Co. of Providence v. Betts, 47017
...the real party in interest and may not maintain an action even for the use and benefit of the insurer. (Ellis Canning Co. v. International Harvester Co., 174 Kan. 357, 255 P.2d 658; J. C. Livestock Sales, Inc. v. Schoof, 208 Kan. 289, 491 P.2d The same rule obtains in federal practice. Rule......
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Dondlinger & Sons' Const. Co., Inc. v. Emcco, Inc.
...the real party in interest and must bring the action for his reimbursement if one is to be maintained. Ellis Canning Co. v. International Harvester Co., 174 Kan. 357, 255 P.2d 658 (1953); J. C. Livestock Sales, Inc. v. Schoof, 208 Kan. 289, 491 P.2d 560 The converse of the rule is also well......
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Morse's Estate, In re
...rights, if any exist under the terms of the insurance policy and the evidence of record, is not contested (see Ellis Canning Co. v. International Harvester Co., 174 Kan. 357, Syl. p1, 255 P.2d 658.). From what has been previously stated it appears the all decisive issue here involved is whe......