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Kansas Electric Power Co. of Leavenworth, Kan. v. Janis, 194 F.2d 942, 10th Cir. (1952)
Kansas Electric Power Co. of Leavenworth, Kan. v. Janis, 194 F.2d 942, 10th Cir. (1952)
Kansas Electric Power Co. of Leavenworth, Kan. v. Janis, 194 F.2d 942, 10th Cir. (1952)
2d 942
On June 23, 1949, Louise I. E. Janis and Ruth E. Davis instituted this action
against Kansas Electric Power Company. It was alleged in the complaint that
plaintiffs owned certain real estate and improvements thereon in Leavenworth,
Kansas; that on December 3, 1947, the property was partially destroyed by fire;
that the proximate cause of the fire was negligence on the part of the defendant;
that the damage to the property amounted to $9,735.16; and that due to such
damage plaintiffs were deprived of rent in the sum of $277.50. Judgment was
sought in the total amount of $10,012.66. Defendant filed a motion for an order
of the court requiring plaintiffs to furnish a more definite statement of their
claim and of the matters set out in the complaint by stating the total amount of
fire insurance policies carried on the property, the names of the insurance
companies issuing such policies, and the amounts which plaintiffs had received
under the policies in settlement of any loss or damage to the property. An
amended complaint was filed in which the substance of the original complaint
was repleaded. In addition, it was alleged that at the time of the fire, policies
Rule of Civil Procedure 17(a), 28 U.S.C.A., provides that every action shall be
prosecuted in the name of the real party in interest; and bringing that rule into
focus, it is settled in the United States Courts that where the owner of property
destroyed by fire as the result of the wrong of another has been reimbursed by
the insurer for only part of the loss, both the insured and the insurer own
portions of the substantive right against the wrongdoer, and, if the action is
against the wrongdoer for the entire loss the owner and the insurer should
appear in the litigation in their own names. Either may institute the action; but
with certain exceptions not having material bearing here, upon timely motion of
the alleged wrongdoer, the other should be joined. An where, as here, the
insurers pay the owners in full for the loss and become subrogated to all of the
rights of such owners against the alleged wrongdoer, the action against the
alleged wrongdoer to recover in tort must be maintained in the name of the
insurers. United States v. Aetna Surety Co., 338 U.S. 366, 70 S.Ct. 207, 94
L.Ed. 171; American Fidelity & Casualty Co. v. All American Bus Lines, 10
Cir., 179 F.2d 7; Gas Service Co. v. Hunt, 10 Cir., 183 F.2d 417.
Affirmed.