Sexton v. Anderson Electric Car Co.

• Decision Date: 07 July 1921
• Docket Number: No. 14014.,14014.
• Parties: SEXTON v. ANDERSON ELECTRIC CAR CO.
• Court: Missouri Court of Appeals

234 S.W. 358

SEXTON v. ANDERSON ELECTRIC CAR CO.

No. 14014.

Kansas City Court of Appeals. Missouri.

July 7, 1921.

Rehearing November 7, 1921.

Appeal from Circuit Court, Jackson County; Harris Robinson, Judge.

"Not to be officially published."

Action by S. E. Sexton against the Anderson Electric Car Company. From judgment for plaintiff, defendant appeals. Affirmed.

Miller, Camack & Winger, P. E. Reeder, and. R. D. Groves, all of Kansas City, for appellant.

Cooper, Neel & Wright and J. Stanley Bassett, all of Kansas City, for respondent.

ARNOLD, J.

This is a suit to recover for alleged damages to an electric automobile. The evidence shows that in September, 1918, plaintiff was the owner of a Detroit electric brougham which he sent for inspection to defendant's place of business at 3310 Main Street, in Kansas City. After inspection, and prior to the return of the car to plaintiff, and while yet in the possession of defendant, and being tested by two of defendant's employés, it was wrecked in a collision with a lamp post at the intersection of Broadway and Armour boulevards.

At the time of the accident plaintiff held a policy of insurance with the Consolidated Underwriters, T. H. Mastin & Company, attorneys, in the sum of $1,800, to cover damages by collision, and this amount was paid to plaintiff in full. Thereupon he executed and delivered to said insurance company a bill of sale, as follows:

"For value received, I, hereby sell, transfer and assign to Consolidated Underwriters, T. H. Mastin & Company, attorneys, all my right, title and interest in and to one Detroit electric, brougham, model 57-1917, year 1917, No. 6835, in its present condition thereof, hereby warranting that there are no claims or liens of any kind affecting the title of said car.

                                   "[Signed] S. E. Sexton
                   "Witness: E. Allen"
                

Said policy of insurance, among other stipulations, contained the following:

"Subrogation a Upon payment of any loss, Consolidated Underwriters shall be subrogated to the extent of such payment to all rights of recovery by the subscriber, and the subscriber shall fully co-operate with Consolidated Underwriters to secure such rights. Consolidated Underwriters may take over and conduct, in the name of the subscriber, the defense or prosecution of any claim or suit for indemnity, damages, or otherwise, against any third party."

Under the provisions of this clause, suit was instituted against the defendant in the name of plaintiff herein. The testimony further shows that, after the wreck and the payment to plaintiff by the insurance company, the latter sold the car for junk for the sum of $350, and asked judgment against defendant for the difference between $1,800, paid plaintiff on his policy, and $350, for which the wrecked car was sold.

The petition, omitting formal parts thereof, is as follows:

"That on or about the eleventh day of September, 1918, plaintiff delivered to the defendant one Detroit electric automobile which was, at the time of such delivery to the defendant of the reasonable value of $2,009, and while said automobile was in the custody of the defendant, it was broken, damaged, wrecked, and that thereafter, on or about the ____ day of ____, 1918, said automobile was delivered to plaintiff actually and constructively, in such broken, damaged and wrecked condition, and that when so delivered to the plaintiff, it was not reasonably worth to exceed the sum of $350."

The amended answer is, first, a general denial, and specially alleges the existence of the policy of insurance; that said policy contained a subrogation clause; that plaintiff was paid the full value of the said car by the insurance company; and that the said insurance company become subrogated to all the rights and causes of action, if any, which plaintiff had against defendant on account of damage to said automobile. Further the answer alleges that by the said assignment the full title to said car passed to said insurance company, and the said company became invested with all legal and equitable title and interest in this cause of action; and that by reason thereof plaintiff herein has no right to maintain this action.

The reply was a general denial, and the cause went to trial under the pleadings thus presented.

Plaintiff thereupon filed his motion for separate trial of the issues in the case, to wit: (a) On the allegations of defendant that plaintiff is not the real party in interest in this case, and that plaintiff has assigned his cause of action to the insurance company; and (b) on the merits of the controversy, which said motion was sustained by the court.

The cause came on for trial as to the proper party to bring the suit, and, acting under instructions of the court, the jury returned a verdict for plaintiff. Thereafter the cause was tried to a jury on its merits, and resulted in a verdict for plaintiff in the sum of $1,450. Motions for new trial and in arrest were duly filed, and were by the court overruled. Defendant appealed.

Plaintiff's motion for separate trial of the issues was based on section 1401, Rev. Stat. 1919 (section 1971, R. S. 1909) which, in so far as applicable to the contentions of this case, reads:

"Where there are several causes of action united in a petition, or where there are several issues, and the court shall be of the opinion that all or any of them should be tried separately by the court or jury, it may, on the application of either party, direct separate trials, which may be had at the same or at different terms of the court, as circumstances may require."

In the case at bar, there is no claim that there is more than one cause of action, but two issues clearly were raised by the pleadings. First, as to whether Sexton is the proper party plaintiff...