New York Cent. R. Co. v. Churchill

• Decision Date: 06 July 1966
• Docket Number: No. 2,No. 20334,20334,2
• Citation: 218 N.E.2d 372,140 Ind.App. 426
• Parties: The NEW YORK CENTRAL RAILROAD COMPANY, a Corporation, Appellant, v. Carl CHURCHILL, Frederic Churchill, Don Churchill, Paul Binkley, d/b/a C. R. Churchill & Sons, a partnership, Appellees
• Court: Indiana Appellate Court

Page 372

218 N.E.2d 372

140 Ind.App. 426

The NEW YORK CENTRAL RAILROAD COMPANY, a Corporation Appellant, v. Carl CHURCHILL, Frederic Churchill, Don Churchill, Paul Binkley, d/b/a C. R. Churchill & Sons, a partnership, Appellees.

No. 20334.

Appellate Court of Indiana, Division No. 2.

July 6, 1966.

[140 INDAPP 427]

John A. Stocker, Indianapolis, Jerdie D. Lewis, Terre Haute, Richard O. Olson, Chicago, Ill., Lewis & Lewis, Terre Haute, of counsel, for appellant.

Young & Young, Indianapolis, for appellees.

HUNTER, Judge.

This case arose in the lower court as a result of a collision between the appellant's train and the appellees' tractor-trailer unit containing shelled corn. The court heard the case without the intervention of a jury and awarded $5,470.82 in damages to the appellees.

The appellees' complaint alleged that the accident was the result of negligence of the appellant, that said negligence caused the total destruction of the tractor-trailer unit and the corn, and that the appellees lost the use of said unit for a period of five (5) weeks.

The appellant filed an answer in three paragraphs. The first paragraph was in compliance with Supreme Court Rule 1--3. The second and third paragraphs alleged that the appellees had recovered all losses from their insurance carriers and then had assigned all causes of action to said insurance carriers. Consequently, the appellees were not the real parties in interest.

[140 INDAPP 428] The appellees filed a reply which in essence denied any payment received from or assignments to insurance carriers stating that if such payments were received, they would give credit to the appellant for such amounts.

After the judgment was awarded to the appellees, the appellant filed a motion for new trial which was overruled. The appellant assigns as error the lower court's action in overruling said motion. The points specifically argued by the appellant in its brief are that the court committed certain errors of law during the trial, the most pertinent of which bear upon the admissibility of evidence and the alleged result of excessive damages.

It is rather difficult to comprehend whether the appellant is attempting to state that the appellees were not the real parties in interest. However, so that there may be no doubt, we shall address ourselves to this problem. It is established that the appellees received compensation under various policies on a total loss basis for all the damaged property less the deductibles. Consequently, from these facts, it is certain that at the very least the appellees retained an interest to the extent of their insurance deductibles. Also, before or during the trial, the appellant settled the matter of subrogation with the insurance carriers of the appellees. From the record it appears that the appellees credited the appellant with such amounts for the reason that the damages awarded do not reflect these amounts. The facts indicate the loss exceeded the insurance proceeds and there was no attempt to collect any amounts compensated by insurance coverage which the appellant had settled with the insurance carriers. Therefore we hold that the appellees were the real parties in interest under § 2--201, Burns' 1946 Replacement; Powers v. Ellis (1952), 231 Ind. 273, 108 N.E.2d 132; Risner v. Gibbons (1964), Ind.App., 197 N.E.2d 184.

[140 INDAPP 429] The appellant then contends that by pursuing its recovery under the insurance contracts, the appellees made an election of remedies which should bar their subsequent action against the appellant. In the first place, it is not absolutely clear to this court that the doctrine of election of remedies is applicable where an extra judicial remedy in the form of recovery under an insurance contract is involved. However, it is not necessary to this holding that we resolve this problem. However, said doctrine applies only where a party has chosen one remedy and later pursues another remedy which is repugnant to or inconsistent with the remedy selected. Kimmel v. Captain (1940), 107 Ind.App. 621, 24 N.E.2d 435. We do not have such an inconsistency in the facts at bar.

To the extent that a full satisfaction for all damages arising from the tortfeasor's acts would have been obtained by the appellees from insurance contracts, any subsequent action against the appellant would be barred. Risner v. Gibbons, supra. The reason for this is not that the appellees would have elected a remedy inconsistent with such a subsequent action, rather they would no longer be the real parties in interest, i.e., they would not have an interest to pursue. If the appellees had only partially collected for their damages from insurance proceeds, this would not bar a subsequent cause of action against the appellant for the entire amount of damages, as long as the appellant would be protected by such a judgment. Powers v. Ellis, supra.

In both instances noted above our courts have decided the validity of an action by a plaintiff against a tortfeasor, who is also subrogated to plaintiff's insurance carriers, not on the basis of the doctrine of election of remedies but rather upon the theory of real party in interest. It becomes readily apparent why the doctrine of election of remedies is not applicable to such cases when the underlying rationale of said [140 INDAPP 430] doctrine is considered. As previously noted, the doctrine is based on the premise that a party cannot pursue a remedy based on the theory of affirmance of an event or transaction and subsequently pursue a remedy where the theory is based on the denial of the same event or transaction. Banta v. Banta (1948), 118 Ind.App. 117, 76 N.E.2d 698, 77 N.E.2d 597. Here the appellees merely collected from their insurance carriers and then pursued their ex delicto remedy against the appellant for damages not compensated by the insurance. The same event was affirmed as the basis for each procedure, i.e., the damage caused by the appellant. There is nothing inconsistent or repugnant between such actions. Consequently, we reject the appellant's contentions in this regard.

The appellant next contends that the lower court erred in admitting over the objections of the appellant the testimony of the appellees which gave the market values of the damaged property at amounts which exceeded the amounts stated on the proofs of loss which were filed with the insurance carriers. The appellant presents no relevant case law to support this point, but contends that when a party insures all damaged property on a total loss basis, and accepts amounts for the total destruction, said settlement should be conclusive and binding as evidence of the value of such property. In this regard the appellees submitted the proofs of loss as appellees' Exhibits Nos. 5, 6, 7 and 8.

In cases similar to the instant case only involving the question from a different perspective, our courts have held tax evaluations of the value of personal property to be admissable. Indiana, etc., Traction Co. v. Benadum (1908), 42 Ind.App. 121, 83 N.E. 261; Ohlwine v. Pfaffman (1913), 52 Ind.App. 357, 100 N.E. 777. In both said cases the appellant was attempting to state that tax evaluations made out by the appellant which evaluated its own property were erroneously admitted. The courts replied in the negative, holding the statements contained evidence of probative value. The only [140 INDAPP 431] qualification was the remoteness in time of such statements to the damage in question. The courts did not consider said statements to be binding on the maker. The statements were to be considered along with other evidence of probative value.

Therefore, we hold that such admissions by the appellees in the proofs of loss are in no manner binding or conclusive as to the value of appellees' property, and that the lower court properly admitted and considered other evidence in deciding the value of the damaged property.

Another point of error urged by appellant is that the court erroneously admitted evidence over the appellant's objections as to the fair rental value of the tractor-trailer unit for a reasonable time necessary to replace it when the property was totally destroyed. It is abundantly clear the Indiana case law allows damages for loss of use of a commercial vehicle while it is being repaired. The Shelbyville Lateral Branch Railroad Company v. Lewark (1853), 4 Ind. 471; The City of Terre Haute v. Hudnut et al. (1887), 112 Ind. 542, 13 N.E. 686; Weddle v. I.R.C. & D. Whse. Corp. (1949), 119 Ind.App. 354, 85 N.E.2d 501. However, the appellant contends that this should not be applied in cases of total destruction of property. The appellant presents no authority in Indiana which supports its argument and contends that this is the majority rule in other jurisdictions.

The appellees state that New York Central R. Co. v. Reidenbach (1919), 71 Ind.App. 390, 393--394, 125 N.E. 55, 56, supports the opposite position. This court stated:

'The next error presented by the motion for a new trial is that of excessive damages. There is evidence that the separator was worth $700 before the accident, and that afterward it was worth $100. The jury was authorized to accept this evidence as a basis of estimating the damages to the separator, though there was some contradictory evidence. The complaint avers an element of special damages in the loss of the use of the machine at the time when it was in season for threshing, and by the appellee's testimony[140 INDAPP 432] a fair rental value of the machaine was $7 per day, and there were 29 days' work yet to be done with this thresher. This was a proper element of damage. (citing cases)'

We cannot determine whether this court in said case considered the property to be permanently damaged or repairable. It is not explicitly stated in the opinion. It should be noted that the court cited The City of Terre Haute, supra, and The Shelbyville R.R., supra, where the courts' holdings pertained only to repairable...