I reluctantly dissent from the opinion of my associates, for the following reasons:
The decided weight of modern authority in this country supports the view that damages resulting from a single tort, even though such damages be partly property damages and partly personal injury damages, are, when suffered by one person, the subject of only one suit as against the wrongdoer.
It is also a well-settled law of this state, and it seems to be universally elsewhere so considered, that a claimant will not be permitted to split a single claim or cause of action, which he may possess, and thereby put his opponent to the possible defense of two or more suits thereon.
Neither the doctrine of subrogation nor the operation of an assignment can be invoked to subject the wrongdoer, though such he be, to splitting of the *Page 482 cause of action and the prosecuting of separate actions for each separate item of damage.
The case of Lake Erie Western Rd. Co. v. Falk, 62 Ohio St. 297, 56 N.E. 1020, furnishes an illustration of how the rights of the insurance company may be fully protected by intervention in a suit in which the plaintiff seeks redress on all his claims for damages. The evident holding of this case is also to the effect that payment by the insurance company cannot be advanced by the defendant in minimizing its damages. The legal title to the cause of action remains in the plaintiff even after payment by an insurance company of a part of his damages, though the plaintiff may be a trustee for the insurance company, to the extent of its subrogation. It should be noted also that the subrogation clause in the policy involved in the case at bar used the words "right of recovery," as distinguished from "interest in a cause of action," or "right of action."
We are not concerned in this case with what the rights of the insurance company may be against the insured, but the question here submitted is whether or not the party causing the damage shall be subjected to more than one suit for a single tort.
The opinion in the case of Sprague v. Adams, 139 Wash. 510,247 P. 960, 47 A.L.R., 529, is submitted in lieu of supporting authorities of the view of the law above stated. The syllabus of this case is as follows:
"1. Damages resulting from a single tort, even though they be partly property damages and partly personal injury damages, cannot be made the subject of separate suits against the defendant, and a *Page 483 judgment for the property damages will be a bar to another action for the personal injuries.
"2. The fact that the plaintiff, by contract with an indemnity company, has given the indemnity company the right of subrogation entitling it to prosecute an action in plaintiff's name for the property damages, does not give plaintiff the right to split the causes of action or to obtain more than one recovery for the tort."
See, also, Georgia Ry. Power Co. v. Endsley, 167 Ga. 439,145 S.E. 851, 62 A.L.R., 256.
The court in the opinion in the Washington case reviews at length the authorities in England and in this country bearing on the above question. Its conclusion is in accordance with the view above stated.