Newby v. Johnston's Fuel Liners, Inc.

• Decision Date: 21 March 1963
• Docket Number: No. 8061,8061
• Citation: 122 N.W.2d 156
• Parties: C. W. NEWBY, d/b/a Regent Lumber Company, Plaintiff and Respondent, v. JOHNSTON'S FUEL LINERS, INC., Defendant, Third-Party Plaintiff and Appellant, v. Leonard PRINCE, an individual doing business under the trade name of Regent Oil Company, Third-Party Defendant and Respondent.
• Court: North Dakota Supreme Court

Page 156

122 N.W.2d 156

C. W. NEWBY, d/b/a Regent Lumber Company, Plaintiff and Respondent, v. JOHNSTON'S FUEL LINERS, INC., Defendant, Third-Party Plaintiff and Appellant, v. Leonard PRINCE, an individual doing business under the trade

name of Regent Oil Company, Third-Party Defendant

and Respondent.

No. 8061.

Supreme Court of North Dakota.

March 21, 1963.

As Amended on Rehearing May 29, 1963.

Syllabus by the Court

1. The purpose of the rule requiring that all actions be prosecuted in the name of the real party in interest is to prevent double liability and the vexations of multiple suits.

2. Where the entire loss had been paid the insured by the insurer and where the insured's action against the wrongdoer had not been ratified by the insurer so as to prevent double liability and vexatious suits, the insured had no real interest in the action and thus was prohibited under Rule 17(a), North Dakota Rules of Civil Procedure, from prosecuting it.

3. The fact that the cost of reciprocal insurance is related to the losses sustained by the reciprocal insurer does not make the insured the real party in interest so as to comply with Rule 17(a) of the North Dakota Rules of Civil Procedure.

Conmy & Conmy, Bismarck, for defendant, third-party plaintiff and appellant.

Mackoff, Kellogg, Muggli & Kirby, Dickinson, and Rausch & Chapman, Bismarck, for third-party defendant and respondent.

Frederick E. Saefke, Jr., Bismarck, for plaintiff and respondent.

ERICKSTAD, Judge.

This is an action on the part of the plaintiff, C. W. Newby, d/b/a Regent Lumber Company, to recover damages from the defendant Johnston's Fuel Liners, Inc., for losses incurred by the plaintiff arising out of a petroleum fire allegedly caused by the defendant.

The aforesaid defendant answered the plaintiff denying liability and as a third-party plaintiff seeking to recover damages suffered by the said defendant in said fire brought Leonard Prince, doing business under the trade name of Regent Oil Company, into the suit as a third-party defendant.

Said Leonard Prince answered denying all liability and counterclaimed asking to recover damages from Johnston's Fuel Liners, Inc., for his losses arising out of the same fire. Defendant Johnston's Fuel Liners, Inc., replied denying all liability on the counterclaim.

This case was consolidated for trial with Case No. 8059, Chicago, Milwaukee, St. Paul & Pacific Railroad Company, a corporation, plaintiff and respondent, v. Johnston's Fuel Liners, Inc., a corporation, defendant and third-party plaintiff and appellant, v. Leonard Prince, an individual doing business under the trade name of Regent Oil Company, third-party defendant and respondent, N.D., 122 N.W.2d 140; and Case No. 8060, Regent Cooperative Equity Exchange, a cooperative association, plaintiff and repondent, v. Johnston's Fuel Liners, Inc., a corporation, defendant and respondent, and Leonard Prince, an individual doing business under the trade name of Regent Oil Company, defendant and respondent, N.D., 122 N.W.2d 151, and was tried before a jury in Hettinger County.

The jury on October 24, 1961, returned a verdict in favor of the plaintiff in the sum of $3,162.00 in effect against both defendants.

The court did not direct the jury to render a verdict on the third-party claim of Johnston's Fuel Liners, Inc., and the counterclaim of Leonard Prince because the issues in connection therewith were submitted in our Case No. 8059.

The third-party defendant Leonard Prince, doing business under the trade name of Regent Oil Company, made a motion for judgment notwithstanding the verdict and, in the alternative, for an order granting a new trial, having previously made the motions for a directed verdict at the proper times.

District Judge Harvey J. Miller granted the motion of the said third-party defendant and ordered that the verdict be vacated as it applied to Leonard Prince. He further ordered judgment in favor of the plaintiff and against Johnston's Fuel Liners, Inc., in the sum of $3,162.00 for the use and benefit of the Retail Lumbermen's Inter-Insurance Exchange of Minneapolis, Minnesota. He did not pass on the motion for a new trial.

The defendant Johnston's Fuel Liners, Inc., made a motion for a judgment notwithstanding the verdict but did not move for a new trial in the alternative. This motion was denied by Judge Miller.

The defendant Johnston's Fuel Liners, Inc., appeals from the judgment against said defendant in favor of the plaintiff, C. W. Newby, doing business as Regent Lumber Company, in the sum of $3,162.00, plus costs, which was dated February 7, 1962, and which judgment was for the use and benefit of the Retail Lumbermen's Inter-Insurance Exchange of Minneapolis, Minnesota.

The defendant Johnston's Fuel Liners, Inc., also appeals from the order denying the motion of the defendant Johnston's Fuel Liners, Inc., for judgment notwithstanding the verdict.

The facts in this case are the same as the facts set forth in Case No. 8059 of our court. The court's statement of law applicable in that case applies in the instant case as it relates to the issues of sufficiency of evidence, negligence, contributory negligence, proximate cause, and related issues.

The appellant contends that the trial court erred in denying the motion of the defendant for dismissal, which motion was made prior to trial and on the ground that the action was not brought in the name of the real party in interest and, likewise, was predicated in the alternative for an order requiring that the subrogated fire insurance carrier be substituted or joined as a party plaintiff.

The plaintiff sued the defendant Johnston's Fuel Liners, Inc., to recover the sum of $3,332.44. Prior to the trial, on receipt of $3,332.44 from the Retail Lumbermen's Inter-Insurance Exchange Company of Minneapolis, Minnesota, the plaintiff acknowledged payment in full and released the said company of all claims against the company arising out of the fire. The jury rendered a verdict in favor of the plaintiff in the sum of $3,162.00, being $170.44 less than the amount sought in the complaint.

Rule 17(a), N.D.R.Civ.P., reads as follows:

'Real party in interest. Every action shall be prosecuted in the name of the real party in interest; but an executor, administrator, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in his own name without joining with him the party for whose benefit the action is brought; and when a statute so provides, an action for the use or benefit of another shall be brought in the name of the state of North Dakota.'

Rule...