Opinion
Action by Owen Merriman, Rena Merriman, his wife, and Bernell Merriman against the Cities Service Gas Co. and City Service Gas Company, wherein defendants moved for security for costs and moved to require Atlas Mutual Insurance Company to be joined as party plaintiff. The District Court, Reeves, J., held that plaintiffs were solvent and that since insurance company had made a loan to cover loss in part, rather than outright payment of loss, plaintiffs were empowered to maintain action in their names without joinder of insurance company.
Motions denied.
John W. Hudson, Kansas City, Mo., for plaintiff.
Farrington & Curtis and Richard Farrington, Springfield, Mo., for defendants.
REEVES, Chief Judge.
The above motions, and suggestions of the parties, have been examined. The affidavits and other data indicate that the defendants and their witnesses are not endangered with respect to their legal demands for the reason that the plaintiffs are solvent.
On the motion to require the joining of Atlas Mutual Insurance Company as a party plaintiff, it appears from an examination of the briefs and a competent document that the plaintiffs did have insurance, and that a part of their claimed loss has been paid. However, it was paid by the insurance company in the way of extending a loan to cover in part said loss. By a document submitted the insurance company quite clearly has authorized the plaintiffs to bring this action and a part recovery, if any, would inure to the benefit of the insurance company. Under such circumstances the plaintiffs are empowered under Rule 17, Federal Rules of Civil Procedure, 28 U.S.C.A., to maintain the action in their names.
Paragraph (a) of said Rule 17 particularly provides that, ‘ a trustee of an express trust’ may bring suit in his name without joining the beneficiary. Such are the rulings in Missouri, as well as the holdings of the federal courts. See Anthony v. German American Ins. Co. of New York, 48 Mo.App. 65; Still v. Connecticut Fire Insurance Company, 185 Mo.App. 550, 172 S.W. 625; Byrd v. Bankers' & Shippers' Ins. Co., 224 Mo.App. 451, loc. cit. 453, 28 S.W.2d 423, and Dixey v. Federal Compress & Warehouse Co., 8 Cir., 132 F.2d 275; Augusta Broadcasting Co. v. United States, 5 Cir., 170 F.2d 199. The act of the insurer in extending a loan is a practice approved by the courts.
It would follow that the several motions above discussed should be and will be overruled.