Parnell v. Nationwide Mutual Insurance , 263 N.C. 445 ( 1965 )

139 S.E.2d 723 (1965) 263 N.C. 445

Joe Harold PARNELL
v.
NATIONWIDE MUTUAL INSURANCE COMPANY.

No. 463.

Supreme Court of North Carolina.

January 15, 1965.

Teague, Johnson & Patterson and Robert M. Clay, Raleigh, for plaintiff appellee.

Dupree, Weaver, Horton & Cockman and Jerry S. Alvis, Raleigh, for defendant appellant.

BOBBITT, Justice.

Plaintiff's motion to strike is addressed to defendant's further answer and defense in its entirety and in substance, if not in form, is a demurrer. The court, in allowing plaintiff's motion to strike, in effect sustained a demurrer to defendant's further answer and defense. Jewell v. Price, 259 N.C. 345, 348, 130 S.E.2d 668, and cases cited.

In considering plaintiff's motion to strike (demurrer), the facts alleged by defendant are deemed admitted. Jenkins & Co. v. Lewis, 259 N.C. 86, 88, 130 S.E.2d 49; Pack v. McCoy, 251 N.C. 590, 112 S.E. 2d 118; Wachovia Bank & Trust Co. v. Currin, 244 N.C. 102, 92 S.E.2d 658.

"Every action must be prosecuted in the name of the real party in interest * *". G.S. § 1-57; Morton v. Thornton, 257 N.C. 259, 262, 125 S.E.2d 464, and cases cited. An agent is not the real party in interest and cannot maintain an action. Morton v. Thornton, 259 N.C. 697, 700, 131 S.E.2d 378.

"A real party in interest is a party who is benefited or injured by the judgment in the case. An interest which warrants making a person a party is not an interest in the action involved merely, but some interest in the subject matter of the litigation." Choate Rental Co. v. Justice, 211 N.C. 54, 188 S.E. 609.

As pertinent to whether plaintiff is a real party in interest, reference is made to Herring v. Jackson, 255 N.C. 537, 543, 122 S.E. 2d 366, and cases cited.

The facts alleged by defendant disclose that Safeco Insurance Company, in discharge of its obligations under the liability policy it issued to plaintiff, paid in full the judgment Phillips obtained against plaintiff; that this action is being prosecuted in the name of plaintiff by Safeco and solely for its benefit; and that plaintiff has made no payment or otherwise suffered loss for which he has a claim against defendant. If the facts are as alleged by defendant, plaintiff is not the real party in interest in respect of an existing cause of action, if any, against defendant on account of matters alleged in the complaint.

Whether Safeco has a cause of action against defendant is not presented by this appeal.

The order, which in effect sustains plaintiff's demurrer to defendant's further answer and defense, is reversed.

Reversed.