St. Paul Fire & Marine Ins. Co. v. Bender

• Decision Date: 07 June 1941
• Docket Number: 35135.
• Citation: 153 Kan. 752,113 P.2d 1062
• Parties: ST. PAUL FIRE & MARINE INS. CO. v. BENDER.
• Court: Kansas Supreme Court

113 P.2d 1062

153 Kan. 752

ST. PAUL FIRE & MARINE INS. CO. v. BENDER.

No. 35135.

Supreme Court of Kansas

June 7, 1941

Syllabus by the Court.

Where appeal by defendant from a judgment overruling his demurrer to plaintiff's petition was filed in the Supreme Court dismissal of plaintiff's action in the district court at the instance of the plaintiff did not cut off defendant's right of appellate review. Gen.St.1935, 60-3302.

An order overruling defendant's motion to dismiss plaintiff's action on ground that plaintiff had not complied with order requiring plaintiff to make its petition more definite and certain in specified particulars was not an "appealable order". Gen.St.1935, 60-3302.

A right of action for damages for a tort is not assignable.

An insurer which had paid sum of money to insured under policy protecting insured's automobile from damage, and which had received an assignment from the insured of insured's right of action against motorist who damaged the insured's automobile, could not maintain an action in its own name against the motorist to recover the amount that it had paid to insured. Gen. St.1935, 60-401.

1. When an appeal from a judgment overruling defendant's demurrer to plaintiff's petition has been filed in the supreme court, a dismissal of plaintiff's action in the district court does not cut off defendant's right of appellate review.

2. The overruling of defendant's motion to dismiss plaintiff's action on the ground that plaintiff had not complied with an order of court requiring plaintiff to make its petition more definite and certain in specified particulars is not an appealable order.

3. Rule followed that a right of action against a party for damage to the property of another is not assignable, and such assignment confers on the assignee no right of action maintainable in its own name against the wrongdoer.

4. One Goodman held an insurance policy issued by plaintiff to protect his automobile against damage. His car was wrecked in a collision with defendant's car, through the fault of the latter. Plaintiff paid its insurance obligation, and obtained an assignment of Goodman's claim for damages against defendant. Held that plaintiff could not maintain an action in its own name to recover from defendant the amount it had paid Goodman on its insurance contract.

Appeal from District Court, Russell County; C. A. Spencer, Judge.

Action by the St. Paul Fire & Marine Insurance Company, an insurance corporation, against Louis Bender, also known as Louie Bender, to recover from defendant the amount of money which plaintiff had paid to an insured in accordance with the terms of a policy protecting insured's automobile from damage. From a judgment overruling defendant's demurrer to the petition, the defendant appeals.

Judgment reversed.

An insurer which had paid sum of money to insured under policy protecting insured's automobile from damage, and which had received an assignment from the insured of insured's right of action against motorist who damaged the insured's automobile, could not maintain an action in its own name against the motorist to recover the amount that it had paid to insured. Gen.St.1935, 60-401.

Jerry E. Driscoll and Harold W. McCombs, both of Russell, for appellant.

C. R Holland, of Russell, for appellee.

DAWSON Chief Justice.

This is an appeal from a judgment overruling a demurrer to a petition in an action to recover from defendant the amount of money plaintiff had paid to one Goodman in accordance with the terms of its insurance policy protecting Goodman's automobile from damage.

Goodman's car had been demolished in a collision with defendant's car,--through the alleged fault of defendant. Plaintiff paid the amount of insurance specified in the policy, $250, and received from Goodman an acknowledgment of full payment thereof and an assignment to plaintiff of all his claims and demands on account of his loss and damage. The assignment also declared that plaintiff would be subrogated to the rights of Goodman, and that--

"The said company is hereby authorized and empowered to sue compromise, negotiate, or settle in the name of the undersigned, or otherwise, to the extent of money paid as aforesaid.

*****

"Dated at Russell, Kansas, this 5th day of August, 1937.

"Francis E. Goodman (LS)

"(Filed July 5, 1940)"

Plaintiff's amended petition pleaded the pertinent facts and also alleged that pursuant to the assignment defendant paid to plaintiff "upon said claim for damages" the sum of $50 leaving a balance of $200 due, for which amount with interest it prayed judgment.

Plaintiff's original petition had been subjected to a motion to make it more definite and certain in many particulars, which motion was sustained in part and overruled in part. Following the filing of plaintiff's amended petition, defendant filed a demurrer thereto on the ground that no cause of action was stated therein in favor of plaintiff. Defendant also filed a motion to dismiss plaintiff's action with prejudice because of plaintiff's alleged noncompliance with the court's order to make its petition more definite in certain particulars.

The trial court overruled that demurrer and motion. Hence this appeal.

Before considering the errors urged against that ruling, we have to notice a motion of appellee to dismiss this appeal on the ground that on May 5, 1941, at the instance of plaintiff, the district court dismissed the action without prejudice, and in consequence the matters involved in this appeal have become moot.

This suggestion is untenable. While a plaintiff with the discretionary sanction of the trial court may dismiss his action, that rule has certain obvious qualifications. Once a litigant has brought his adversary into court, and issues of law or of fact are raised or joined between them, the rights of the latter in the subject matter of the litigation are just as potent as those of the former. Being brought into court, he is entitled to have the controversy adjudicated to a finality, so that there may be an end of litigation. If that goal cannot be attained without an appellate review,...