(dissenting).
I dissent, because the opinion sounds like it lays down a rule that the plaintiff can retain the payments made to him by the insurance companies, and also retain the same amounts in collecting on his judgment against the tortfeasor. Had the main *399opinion said the case'would be remanded with instructions to the effect that the amount of the judgment representing pro tanto amounts paid by the companies issuing the three policies, (every one of which had a subrogation clause), would be held in trust for the companies that made such payments as their interests appeared, I would have concurred.
The plaintiff here did not have a claim against Hill, since, by virtue of his contracts with his insurance companies, such claim was theirs, by way of subrogation.1 These insurance contracts were exhibits. The Johanson case is based on an antipathy for multiple suits, but nonetheless it says the claim is not that of the insured, hut that of the insurer after the latter’s payment to the former.
Perhaps this dissent is much ado about nothing, since I am convinced that Ottley must hold whatever judgment he gets against Hill as trustee for the insurers in an amount which they paid him. This, of course, leads to the multiplicity of suits that our statute, Title 31 — S—IS, Utah Code Annotated 1953, and the Johanson case seek to eliminate. The insurance companies in this case would be crazy, under the authorities on subrogation, not to sue Ottley to impress a trust on the judgment he received against Hill for the amounts they paid the former for the special damages already paid by the insurers.
The lower court either should be affirmed, or alternatively instructed to impress a trust in favor of the insurers, consonant with the observations of this dissent.
. Johanson v. Cudahy, 107 Utah 114, 152 P.2d 98 (1944). See also Forsey v. Hale, 13 Utah 2d 315, 373 P.2d 904 (1962), and its reversal on rehearing at 14 Utah 2d 115, 378 P.2d 358 (1963), with respect to double payment and possible application of the “collateral source” principle, upon ■which the main opinion apparently relies by citing Phillips v. Bennett. That case is inapropos here since it is bottomed, apparently, on the assumption that the insurer had no right of subrogation.