Wyker v. Texas Co., 8 Div. 116

• Court: Supreme Court of Alabama
• Writing for the Court: GARDNER, J.
• Citation: 79 So. 7,201 Ala. 585
• Parties: WYKER v. TEXAS CO.
• Docket Number: 8 Div. 116
• Decision Date: 09 May 1918

79 So. 7

201 Ala. 585

WYKER
v.
TEXAS CO.

8 Div. 116

Supreme Court of Alabama

May 9, 1918

Appeal from Circuit Court, Morgan County; O. Kyle, Judge.

Action by John W. Wyker against the Texas Company. Judgment for defendant, and plaintiff appeals. Transferred from the Court of Appeals under section 6, p. 449, Acts. 1911. Reversed and remanded.

Sayre, J., dissenting.

Eyster & Eyster, of Albany, for appellant.

Callahan & Harris, of Decatur, for appellee.

GARDNER, J.

It appears from the foregoing statement of the case, the plaintiff claimed damages in the sum of $500, as a result of a collision of his car with the team of the defendant company; and plaintiff insisted in his testimony that his car was damaged in said sum. Upon cross-examination, over the plaintiff's objection, defendant introduced a release executed by the plaintiff to the AEtna Accident & Liability Company, releasing and discharging said company from all liability under the policy of insurance on said car, for the damages which occurred on this occasion. This release was in consideration of the sum of $200, and further stipulated that the insurance company was subrogated to the amount of such payment to the right of recovery of [79 So. 8] the plaintiff for such loss or expense against the persons who caused or contributed to said loss. The rights of subrogation therefore, as set forth in said release, are limited to the amount of the payment of $200. Said release is here construed as merely subrogating the insurance company for recovery of the limited sum so expended by it, and not as a transfer of the plaintiff's right of action for the damages suffered.

In the case of B.R.L. & P. Co. v. AEtna A. & L. Co., 184 Ala. 601, 64 So. 44, the action was originally brought in the name of the insurance company, the company having paid in full the damages suffered by the owner of the automobile. It therefore appeared that the insurance company was the only party who had suffered any loss. As to whether or not the cause of action could have been prosecuted under these circumstances by the insurance company in its own name was mooted, but not decided. It was there held that, as a matter of course, the company had the right to amend the complaint by adding as the nominal plaintiff the name of the owner of the car, and proceed with the cause as thus amended in the name of the owner for the use of the company.

In the case of Coffman v. L. & N.R.R. Co., 184 Ala. 474, 63 So. 527, was presented a situation somewhat analogous to that here under...