Hayward v. State Farm Mut. Auto. Ins. Co. , 212 Minn. 500 ( 1942 )

I dissent. True, appellant procured from Hayward the subrogation assignment when it settled for the damage to his car under the terms of its policy. But when later Hayward sued Vollbrecht, whose negligence damaged the car and inflicted serious personal injuries on Hayward, Vollbrecht alone could defend on the ground that the former's cause of action had been split.

Subrogation rests on equity principles. Appellant claims $279.52 of the judgment Hayward obtained against Vollbrecht. The burden was upon it to prove that the judgment includes damages awarded for the car. The trial court's finding is that there was no evidence introduced to show the value of the car before the collision and its value thereafter. True, the court rightly charged that to be the measure of damages. But the finding is amply sustained that no witness was asked as to the value or market value of the car either before or after the collision. That the jury cannot award damages by their knowledge of automobile prices and looking at care damaged in collision or a photograph of such cars is well settled by cases cited in 2 Dunnell, Dig. Supp. § 3247; and the jury cannot award any sum for attorneys' fees unless there is evidence of value. Mitchell v. Davies, 51 Minn. 168,53 N.W. 363.

But it clearly appeared in this case that Hayward paid out for medical experts more than $500 which could not be taxed or be included in the judgment. And, it seems to me, the rule is proper as stated in Flor v. Buck, 189 Minn. 131, 248 N.W. 743,744, where, the court said, "If he [the insured] makes recovery, he has the right first to reimburse himself for his loss and expenses, and then he holds the balance of his recovery in trust for the insurance company." Under the findings herein, well supported by the evidence, it seems to me it is inequitable to award any part of the money deposited with the clerk of court to appellant.

As supporting the decision of the trial court may be cited Shawnee F. Ins. Co. v. Cosgrove, 85 Kan. 296, 116 P. 819,41 L.R.A.(N.S.) 719; Washtenaw Mut. F. Ins. Co. v. Budd, 208 Mich. 483; Costello v. N.Y. C. H. R. R. Co. 238 N.Y. 240,144 N.E. 514; Hamilton F. Ins. Co. v. Greger, 246 N.Y. 162,158 N.E. 514.