Solomon v. Ryder

Wiest, J. In an automobile accident plaintiff’s car was destroyed and she received personal injuries. The automobile was insured and the insurer paid plaintiff the loss, and, by writing, constituted plaintiff its trustee to have recovery from defendants along with her damages for personal injuries. Plaintiff filed a declaration, alleging that she brought suit for herself and as trustee. It developed at the trial that, for damages to the automobile, she was trustee for the insurance company. Suit was brought before the passage of Act No. 271, Pub. Acts 1929 (3 Comp. Laws 1929, § 14010), permitting joinder. Defendants moved the court to dismiss the case on the ground that the action was not brought in the name of the real party in interest, relying upon 3 Comp. Laws 1929, § 14010, and the authority of Waters v. Schultz, 233 Mich. 143; Heck v. Henne, 238 Mich. 198; McPeake v. Railway Co., 242 Mich. 676; Grubaugh v. Murphy Co., 209 Mich. 551; Michigan Employers Casualty Co. v. Doucette, 218 Mich. 363; Cox v. Railway, 234 Mich. 597; National Liberty Ins. Co. v. Foth, 254 Mich. 152; Worth v. Wagner, 255 Mich. 433. Also that plaintiff had split her cause of action. Thereupon counsel for plaintiff and the insurance company waived all claim for damages for loss of the car, and the court permitted the case *195 to proceed, and the jury rendered a verdict awarding damages solely for personal injuries sustained by plaintiff. Had plaintiff stood upon the declaration it would have been the duty of the court, under the authorities cited, to have dismissed the action. The waiver by plaintiff, and the representative of the insurance company, of claim for loss of the car, made continuance of the action single in purpose and the plaintiff the only party in interest. But, it is said, that the engagement between plaintiff and the insurance company obligated her to pay $750 out of any verdict rendered under the declaration as first filed, and the jury might not have awarded the amount of $750 for loss of the car, and, in such event, the insurance company was a party in interest in any recovery by plaintiff. This is rather speculative, and, we think, fully met by the waiver of right to recover any damages for the loss of the car. The facts attending the accident are fully set forth in Hoban v. Ryder, ante, 188, and obviates the need of a restatement. A witness, called in behalf of plaintiff, testified that he did not see the accident but heard the crash and went out, found the car on fire, but did not look for any skid marks, although after the accident he saw a person painting skid marks on the concrete pavement. Admission of this testimony, it is claimed, was error. The testimony of the witness further disclosed that the person painting the skid marks was the son of defendant Charles Ryder, and that the painting was done the same day of the accident. Perhaps the testimony did not have much probative value, but we cannot hold that its admission constituted reversible error. *196 Defendants’ liability has been affirmed by our opinion in the Hob an Case. "We find no reversible error, and the judgment is affirmed, with costs to plaintiff. Clark, C. J., and McDonald, Potter, Sharpe, Forth, Pead, and Butzel, JJ., concurred.