McCoy v. Moore

• Decision Date: 23 May 1939
• Docket Number: 28654.
• Parties: McCOY v. MOORE.
• Court: Oklahoma Supreme Court

91 P.2d 87

185 Okla. 253, 1939 OK 261

McCOY v. MOORE.

No. 28654.

Supreme Court of Oklahoma

May 23, 1939

Rehearing Denied June 13, 1939.

Syllabus by the Court.

1. A cause of action purely in tort in favor of the owner of an automobile, on account of damage thereto by reason of a collision caused by the wrongful act of another, is not assignable.

2. A defendant's right is to have a cause of action prosecuted against him by the real party in interest, but his concern ends when a judgment for or against the nominal plaintiff would protect him from any action upon the same demand by another, and when, as against the nominal plaintiff, he may assert all defenses and counterclaims available to him were the claim prosecuted by the real owner.

Appeal from District Court, Muskogee County; E. A. Summers, Judge.

Suit by G. Clyde Moore against J. E. McCoy for damages resulting from an automobile collision. From a judgment in favor of the plaintiff, the defendant appeals.

Judgment affirmed.

C. A Ambrister, of Muskogee, for plaintiff in error.

Bower Broaddus and Julian B. Fite, both of Muskogee, for defendant in error.

WELCH Vice Chief Justice.

This appeal presents the sole question, whether Moore was the proper party plaintiff.

Moore sued to recover damages resulting to his automobile from a collision with one driven by the defendant, McCoy. At the time of collision the Moore automobile was being driven by one Haines to whom it had been delivered for servicing. The damage to Moore's automobile had been repaired at Haines' expense and Moore had agreed with him that he would bring the suit for damages or that suit would be brought in Moore's name and that any recovery would enure to Haines' benefit to reimburse him for the expense of the repairs.

It is urged that under the above facts plaintiff is not the real party in interest and that by virtue of section 142 O.S.1931, 12 Okl.St.Ann. § 221, he cannot maintain the suit. The section provides: "Every action must be prosecuted in the name of the real party in interest, except as otherwise provided in this article but this section shall not be deemed to authorize the assignment of a thing in action not arising out of contract." We think it cannot be questioned that from and immediately after the collision the owner of the automobile acquired a right of action in tort against the defendant, McCoy. It appears that plaintiff's automobile was repaired and the repair bills were paid by Haines, the operator of the service station. The record does not reflect the moving cause of payment, whether with the intent to satisfy a legal or moral obligation or merely as a volunteer or intermeddler or even as a gratuity or accommodation to Moore. Defendant must have shown further facts and circumstances of the payment of the bills to show legal...