Lebet v. Cappobiancho

DOOLING, Jr., J.,

pro

tem.

This is an appeal from a judgment for $106 for damages to the rear of an automobile. Defendants proved in the trial court that plaintiff had been fully compensated for this damage by an insurance carrier. They then urged and urge on appeal that the insurance carrier became subrogated to all of plaintiff’s rights and was the real party in interest under Code of Civil Procedure section 367, and under that section the only party entitled to prosecute the action. They cite

Offer

v.

Superior Court,

194 Cal. 114 [228 Pac. 11].

*Supp. 772

Plaintiff counters by citing

Loggie

v.

Interstate Transit Co.,

108 Cal. App. 165 [291 Pac. 618], To this citation should be added

Inglewood Park Mausoleum

v.

Ferguson,

9 Cal. App. (2d) 217 [49 Pac. (2d) 305]. These two eases hold squarely that it is no defense to an action for damages to property that the plaintiff has been fully reimbursed by an insurer. We need not, however, rely on these cases to decide this appeal.

Plaintiff introduced an assignment to the insurance carrier which contained the following provision:

“The said Insurance Company, its successors and assigns are hereby forever authorized and empowered, . . . to . . . institute and prosecute such actions at law or in equity as it-shall deem proper, in the name of the undersigned or otherwise ...”

The precise question was presented in

Ephraim

v.

Pacific Bank,

136 Cal. 646 [69 Pac. 436], In that ease it is stated on p. 647:

“An assignment was offered in evidence from the plaintiff receiver to E. Schlessinger, made before the action was commenced, for the purpose of showing that the action was not brought in the name of the real party in interest. The assignment expressly conferred upon the assignee the right to prosecute and collect the allowance in the name of the receiver.”