Sellman v. Haddock

• Decision Date: 06 May 1957
• Docket Number: No. 6122,6122
• Citation: 62 N.M. 391,1957 NMSC 37,310 P.2d 1045
• Parties: O. W. SELLMAN, Appellant, v. Dewey W. HADDOCK, Appellee.
• Court: New Mexico Supreme Court

Page 1045

310 P.2d 1045

62 N.M. 391

O. W. SELLMAN, Appellant, v. Dewey W. HADDOCK, Appellee.

No. 6122.

Supreme Court of New Mexico.

May 6, 1957.

Garland & Sanders, James T. Martin, Jr., Las Cruces, for appellant.

Whatley & Oman, Las Cruces, for appellee.

KIKER, Justice.

On May 9, 1955, in Hatch, New Mexico, plaintiff's auto and defendant's truck collided within an intersection of two streets. Damage was done to both vehicles. Plaintiff's automobile was repaired at a cost of $533.21. Plaintiff paid $50 only of the cost of the repair of his automobile. Plaintiff's insurer paid the balance. The foregoing facts are stated in the findings made by the court.

Under Rule 36 of the Rules of Civil Procedure for the District Courts the defendant made written request of plaintiff for certain admissions of fact. In answer to this request plaintiff admitted that the company carrying insurance covering his car had paid a part of the loss and damage on account of which the suit was filed. Plaintiff also admitted that he paid only $50 of the bill for repairing his automobile.

In answer to an interrogatory made to him by defendant, plaintiff gave the name of his insurance carrier; and in answer to another interrogatory propounded by defendant, plaintiff stated the amount paid by the insurance company. In answer to a third interrogatory plaintiff stated that he had given to his insurance carrier a 'Loan Receipt', but that he did not have a copy thereof in his possession and so could not attach a copy to his answer.

The above mentioned request for admissions of fact and interrogatories, as well as the answers made, were filed in the office of the clerk and are a part of the record in the case. The admissions made were as binding on the trial court as the testimony given in the case. Since the admissions and answers to interrogatories do not fully appear in the findings made by the court, they will be considered as supplementing the findings made by the court just as if the admissions had been made in the pleadings.

The facts above stated are not at all disputed.

Upon the findings of fact made by the trial court, judgment was entered for the plaintiff in the sum of $50, and plaintiff being aggrieved thereby filed motion for, and was allowed, an appeal to this court.

Defendant-appellee contends here for the first time that the insurance carrier was an indispensable party to the suit.

Defendant made no such contention at any time in the district court by motion or in any other way.

There is much authority in support of the contention of plaintiff to the effect that he had the right, notwithstanding the payment of a considerable sum by the insurer for the repair of his car, to bring suit for the entire amount paid. He points out correctly, we think, that this was the rule at common law, and quotes cases from various jurisdictions supporting his contention. Some of these cases are: Illinois Power & Light Corp. v. Hurley, 8 Cir., 49 F.2d 681; Wyker v. Texas Co., 201 Ala. 585, 79 So. 7, L.R.A.1918F, 142; Caligiuri v. Des Moines Ry. Co., 227 Iowa 466, 288 N.W. 702; Smith v. United Warehouse Co., 123 Kan. 515, 255 P. 1115.

The common law is the rule of practice and decision in the State of New Mexico. Section 21-3-3, N.M.S.A.1953; Beals v. Ares, 25 N.M. 459, 185 P. 780.

This rule does not obtain, however, when the subject matter of any procedural right is fully covered by statute or rule. In our state the rules of court as to parties, taken from earlier statutory provisions, fully cover the matter of parties to civil suits. First, they provide, in Rule 17(a), that every action is to be prosecuted in the name of the real party in interest. There are certain exceptions, but these are not involved here. Rule 19(a) provides that, subject to the provisions of other rules, persons having a joint interest shall be made parties and be present on the same side as plaintiffs or defendants.

We must first determine whether the insurance carrier is an indispensable party or merely a proper party.

If the insurance carrier is an indispensable party, then the court was without jurisdiction and the situation is the same as if no attempt at a trial had been made.

As we have shown above, there is an admission of fact made a part of the record proper that plaintiff gave to the insurance carrier a 'Loan Receipt'. The nature of that instrument is not disclosed. Defendant points out that the evidence does not support the statement that a loan receipt was given, but that it shows that the plaintiff did sign some sort of receipt but was without knowledge as to its nature and makes reference to the testimony at page 56 of the record, at which place the plaintiff testified:

'A. I signed a form that gave them the authorization to pay for the damages, and pay to have my car fixed, and to collect from whoever caused the damage, if they could determine that.

'Q. Either in your name or theirs? Do you know whether that was in your name--that form that you signed? A. I don't really know, sir.'

This is all of the information that we have about the nature of the writing given to the insurer by plaintiff when the insurer made payment of part of the charges for repairing the car. The admissions in the record proper and testimony also show that payment was made by the insurance company, as stated earlier.

That part of the testimony which is important here is the declaration of the plaintiff that he gave to the insurance company the right to collect from the person who caused the damage, if that fact could be determined. This declaration by the plaintiff is, we think, somewhat more enlightening than a declaration that he gave a 'Loan Receipt'. Bearing that declaration in mind, we seek to find out what the rights of both insurer and plaintiff were after the receipt was executed.

This court has stated two tests for the determination of a 'real party in interest': (a) 'whether he is the owner of the right sought to be enforced', citing Whiteman v. Taber, 205 Ala. 319, 87 So. 353; (b) 'whether he is in a position to release and discharge the defendant from the liability upon which the action is grounded', citing Broderick v. Puget Sound, etc., Co., 86 Wash. 399, 150 P. 616. These tests are stated in Reagan v. Dougherty, 40 N.M. 439, 62 P.2d 810, 811. See also State v. Barker, 51 N.M. 51, 178 P.2d 401.

Relying upon plaintiff's testimony that when the insurance carrier paid the garage for a part of the cost of the repair of the car he authorized the insurer 'to collect from whoever caused the damage, if they could determine that', it must be said, we think, that the insurer has an interest in the claim against defendant for damage done to plaintiff's car. If the insurer had the right to collect the whole or any part of the amount paid for damage to plaintiff's car, then the insurer was in a position to release the defendant from any and all claims to the extent of the amount paid to him.

The case of Gaugler v. Chicago, D.C., 197 F. 79, 81, was a case 'wherein an insured and insurers (four nonresident corporations), who have paid less than the total loss, join to recover the total loss in an action against the trespasser whose negligence destroyed the insured property. The insured is a citizen of Montana, and the insurers and defendant are citizens of other states.'

A motion to remand to the state court was overruled.

The case was later considered by another judge upon an application for leave to renew the motion to remand to the state court from which it had been removed.

The defendant contended among other things that the insurers were no more than proper parties; that they were not at all necessary parties. Plaintiffs contended, however, that the laws of Montana required all actions to be prosecuted in the name of the real party in interest and that the insurers are such parties and are indispensable parties; that there is no separable controversy. The judge who heard the original motion denied it on the ground that the action must be prosecuted in the name of the insured and that the insurers are not necessary or indispensable parties.

The court acting upon the motion to renew said:

'The statutes of Montana provide that there is but one form of civil action; that every action must be prosecuted in the name of the real party in interest save certain express exceptions not material here further than to invoke the rule of expressio unius, etc.; that an action by an assignee of a thing in action is subject to defenses not material here; that all persons having an interest in the subject of the action and in obtaining the relief demanded may be joined as plaintiffs and those united in interest must be joined, save that any refusing may be made a defendant; that new parties may be brought in and intervention had; that tenants in common may sue jointly or severally; and that things in action arising out of a violation of property rights may be transferred. It is clear there is no separable controversy herein. There is but a single cause of action involved, viz., the right of the insured, the invasion thereof by the negligence of defendant in the destruction of the insured's property, and the damages thereby inflicted. That the insurers as equitable assignees of the insured are interested therein to the extent of their payments to the insured, and are interested in proving the negligence and in sharing the damages, does not create other causes of action, legal or equitable, against defendant. It is still one cause of action, a single controversy, owned in common by the insured and the insurers. However and wherever an action is brought to compel defendant to respond for its trespass, there can be but one action and in the right of the insured, and one recovery for all those interested. See First [Presbyterian], etc., v. [Goodrich Transportation] Co. (C.C.) 7 F. 260, and cases cited; [Broadway] Insurance Co. v. [Chicago G.W.] Railway Co. (C.C.) 101...