CIVIL PROCEDURE-PARTIES-REAL PARTY IN INTEREST WHEN INSURER HAS EQUITABLE INTEREST IN CLAIM

Plaintiff sued for damages to his fruit and grocery market which were allegedly caused by the negligence of defendant. Interrogatories were submitted by defendant designed to determine whether or not plaintiff had been paid the full amount of his loss by an insurance company and had assigned his claim to that company. The trial court sustained a motion to strike the interrogatories. On appeal, held, reversed, two judges dissenting.

Although a tortfeasor cannot defeat an action by the insured by showing full subrogation of the insurer, he can plead an assignment of the insured's claim to show that the insured is not the real party in interest under the provisions of the Indiana statute, so interrogatories for discovering the fact of assignment are proper. Powers v. Ellis, (Ind. App. 1952) 103 N. E. (2d) 907.