Hoorman v. White
| Decision Date | 19 September 1961 |
| Docket Number | No. 30695,30695 |
| Citation | 349 S.W.2d 379 |
| Parties | Leo HOORMAN, Plaintiff-Appellant, v. Clarence B. WHITE, Defendant-Respondent. |
| Court | Missouri Court of Appeals |
Volkman & Robinson, Sherwood R. Volkman, St. Louis, for plaintiff-appellant.
Whalen, O'Connor & Grauel, Warren Grauel, Charles Sarkisian, St. Louis, for defendant-respondent.
Plaintiff-appellant sought recovery of $375 for damages to his car resulting from a collision with defendant-respondent's car, allegedly caused by defendant's negligence.
Following an appeal from a Magistrate judgment in favor of plaintiff for $375, defendant filed interrogatories in the Circuit Court of St. Louis County and in answer thereto, plaintiff stated that--at the time of the collision he had a policy of collision insurance; the total cost of repairs to his car was $338.27; he made a claim against his carrier under the provisions of the policy; the company paid the repair bill, less the deductable, ($50); he executed an 'Auto Repair Order and Release' which was, in part, as follows:
'It is agreed by the insured that upon payment of the foregoing claim, Farm Bureau Mutual Insurance Company of Missouri is hereby subrogated to all claims and rights of action of the undersigned against any third person or persons, firms, corporations or estates to the amounts so paid and the undersigned assigns and sets over to the said company all such claims with the right to prosecute the said action or actions in the name of the assignor.'
Thereafter, defendant filed a motion to dismiss on the ground that, having assigned all of his rights and causes of action in connection with the property damage claimed, plaintiff was not the real party in interest. The motion was sustained and judgment was entered dismissing plaintiff's cause of action, from which an appeal to this court was taken.
Plaintiff contends he is still a real party in interest to the extent of the $50 which his carrier did not pay on the repair bill and also, because he had the right to recover the difference between the market value of the car before and after the collision. In addition, he says that by the terms of the assignment the parties agreed that he could bring this action in his name.
Plaintiff is not a real party in interest. In Steele v. Goosen, Mo., 329 S.W.2d 703, at page 711, the Supreme Court passed on an assignment indistinguishable from the one here and notwithstanding contentions similar to those now made by plaintiff, held, that the '* * * document signed by plaintiff constituted an assignment to the insurer of plaintiff's entire claim for property damage, although, as the policy provided, plaintiff received $50 less than the cost of repairs to his automobile. General Exchange Ins. Corp. v. Young, supra , 212 S.W.2d 396, 401. It is immaterial to any of the issues here that the document signed by plaintiff limits the insurer's subrogation rights 'to the extent of the amount hereby paid.''
Plaintiff assigned his entire cause of action and that includes the measuring of damages by the difference in market values of the car before and after the collision, as well as any other 'measure' by which damages might be ascertained.
If a valid agreement can be made whereby a suit may be prosecuted in the name of a person having no interest therein (and we do not, by discussing the subject, intend to so hold), the document signed by plaintiff, nevertheless, places the 'right' to prosecute in the insurance carrier and not the insured. The plaintiff assigned to the insurer '* * * all such claims with (and) the right to prosecute * * *' the same in name of the assignor.
If the case was being (and could be) prosecuted by the carrier in plaintiff's name under this 'right', the burden was on plaintiff to have so shown....
To continue reading
Request your trial
-
Warren v. Kirwan
...action must be brought by the insurer. General Exchange Ins. Corporation v. Young, 357 Mo. 1099, 212 S.W.2d 396 (1948); Hoorman v. White, 349 S.W.2d 379 (Mo.App.1961). This is true even though the insurer has paid only part of the loss and is subrogated to the extent of the payment. Steele ......
-
Holt v. Myers
...it had paid pursuant to the insurance contract between the parties thereto. Ewing, supra, 420 S.W.2d p. 18, relied on Hoorman v. White, 349 S.W.2d 379 (Mo.App., 1961) as authority for its ruling; however, a close reading of the 'Auto Repair Order and Release' upon which the court decided Ho......
-
Alsup v. Green
...defendants, the trial court's order of dismissal was a proper one. Steele v. Goosen, 329 S.W.2d 703, 711(11) (Mo.1959); Hoorman v. White,349 S.W.2d 379 (Mo.App.1961). Exhibit A is strikingly similar to the 'Release and Subrogation Receipt,' the legal effect of which was carefully analyzed i......
-
Keisker v. Farmer
...rights. True, this limit can appear in an assignment. See Steele v. Goosen, 329 S.W.2d 703, 711-12 (Mo.1959); Hoorman v. White, 349 S.W.2d 379, 380 (Mo.App.1961). The key is the context in which the limit Here, the policy permits the Shop to waive its rights prior to a loss against anyone a......