concurring in part and dissenting in part.
I concur in that portion of the majority opinion which reverses the judgment as to Christine Burtrum but I must otherwise respectfully dissent.
In this case, Cynthia Wheeler asserts that Nettie’s attendance at, and minimal participation in, the trial of her deceased husband’s claim bars Nettie’s separate and distinct claim. This is tantamount to an allegation that the court was in error when it severed the claims for purposes of trial or that the court had no authority to do so. Such allegation should be rejected, if only for the reason that Cynthia initiated the request by formal petition for the trial court to do precisely that—sever the claims of Nettie and Christine and try them at a subsequent time. The Petition in pertinent part was as follows:
“Comes now the plaintiffs,1 by counsel, and move the Court to ... separate the third-party complaints of Nettie Burtrum and Christine Burtrum. In support of this motion, the Court is respectfully shown as follows:
3. In order to simplify the proceeding so that a fair and equitable verdict may be rendered, it is submitted that the third-party complaints of Nettie Burtrum and Christine Burtrum should be severed from the claims made by Cynthia Wheeler and Jennifer Wheeler against Prentice Burtrum and Mr. Burtrum’s counterclaim against Cynthia Wheeler.” Record at 293.
It is unconscionable to permit Cynthia to benefit by the error, if any, which she invited. The result reached by the majority in this regard is particularly offensive in that the authoritative voice of the judiciary assured, whether rightly or wrongly, that Nettie as well as Christine would have her day in court upon her separate and distinct claim.
*1154The Pre-Trial Order of the court reads in part as follows:
“IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that the Third Party Complaints filed on behalf of Nettie Burtrum and Christine Burtrum be, and hereby are, separated from the Complaint filed on behalf of Jennifer Wheeler and Cynthia Wheeler.” Record at 299.
Additionally, on the first day of trial while Christine was present but Nettie was not, the court repeatedly assured Christine that the separate interests of her mother and herself were not in issue:
“[D]id you understand from reading this, that on August 11 I made the decision that we were going to split the case up as follows: that Cynthia Wheeler’s claim vs. Mr. Burtrum and his Counter-Claim back against Cynthia and of course, the involvement of Indiana Insurance Company would be all that we try today?
MISS BURTRUM: Yes.
THE COURT: And that, at another day, that’s the day when we would try Nettie Burtrum’s and your case against Cynthia Wheeler, okay?
MISS BURTRUM: Yes.
THE COURT: And so that this trial today does not concern itself with your and your mother’s claim against Cynthia Wheeler.
MISS BURTRUM: Yes.
THE COURT: Do you understand that now?
MISS BURTRUM: Yes.
THE COURT: ... see, I know you’ve made the comment, word has come to me that you’ve made the comment of, ‘What about my mother and my rights?’ Okay?
MISS BURTRUM: Yes.
THE COURT: I’m assuming that you’re referring to, ‘what about our case and our injuries in the case’?
MISS BURTRUM: Yes.
THE COURT: Okay. Do you understand that we are not making a decision on that case? We’re going to try this portion of the case first.
MISS BURTRUM: Yes.
THE COURT: And then once the jury has a verdict, in essence, we’re just kind of putting your case over here right now to the side.
MISS BURTRUM: Yes.
THE COURT: Once we get through this portion of the case, then we’ll try your and your mother’s case. Okay?
MISS BURTRUM: Alright.
THE COURT: We’re making no determination on it now. And my order of August 11, and the Pre-Trial Order, did not prejudice your rights in terms of—I made no decision about, should you recover or shouldn’t you recover. All I said was, it’s too much to try all at one time.
MISS BURTRUM: Yes.
THE COURT: It’s too much to expect of these twelve (12) people to understand all this stuff that we’re talking about in a legal format. Okay, so I want you to be clear that what we’re trying is Cynthia Wheeler vs. Prentice and his CounterClaim back against her. Alright? And we are preserving, see, we’re saving over here, the lawsuit by you and your mother back against Cynthia.
MISS BURTRUM: Yes, I understand all that now.
THE COURT: Alright. Great, okay. Now ....
THE COURT: We’re going to put it to the side. Once we’re done here, then we’re going to hear your case at a later date. Certainly if we were going to hear the personal claims that you and your mother have against Cynthia Wheeler, I would certainly look differently upon the Motion for Continuance. Because you have personal evidence about your personal conditions that we need to have to make a determination with that.
MISS BURTRUM: Yes.” Record at 537-542.
This clear and unambiguous assurance was re-emphasized the following day when Nettie was present in court as follows:
*1155“THE COURT: It has come to the Court’s attention that Nettie Burtrum, she being the wife, the surviving spouse of Prentice Burtrum has, as I interpret her question has a request for permission to cross-examine this witness. And I assume that it is not unreasonable to anticipate that her request might go to other witnesses relative to this case as well. And the Court has asked the daughter, Christine Burtrum, if she has relaid (sic) the information that the Court had on the record with Christine. And she indicates that she has. And I’ll ask you, Mrs. Burtrum, do you understand that the case we’re trying today does not include your and Christine’s suit for personal injuries received as a result of the accident. Do you understand that?
MRS. BURTRUM: Yes, I understand that.” Record at 569-70.
Even were it otherwise, I find nothing of record which justifies the purported substitution of parties as represented by the trial court’s order:
“... now orders Nettie Burtrum, as the surviving spouse of Prentice Burtrum substituted therefore [sic]; .... ” Record at 241.
The record does not reflect that Nettie was ever duly appointed as the legal representative of Prentice’s estate nor that she is the sole heir at law or the sole legatee under a will. In any event, her participation on behalf of Prentice could only have been as a formal and duly appointed legal representative, not as a surviving spouse or a prospective heir or legatee. Baker v. State Bank of Akron (1942) 112 Ind.App. 612, 44 N.E.2d 257; Smith v. Massie (1931) 93 Ind.App. 582, 179 N.E. 20. Accordingly, I question whether her minimal “participation” had any legal significance, whether in regard to Prentice’s liability or claim for personal injury damages or in regard to her own separate and distinct claim.
The majority’s holding is necessarily predicated upon Nettie’s succession to the right of recovery formerly held by her husband as by “inheritance, succession, or purchase.” At 1151. The record is devoid of support for such supposition other than the fact that Nettie was the surviving spouse. There is absolutely no evidence that Nettie is the sole legatee under a will duly admitted to probate or spread of record, nor that she has been determined to be a lawful heir, nor that she has elected to take against a will if not named a beneficiary therein, nor that Prentice assigned any cause of action to her.
Nettie was not, as the majority holds, a “real party in interest” in the August 1980 litigation. The law states that a “real party in interest” must have a present and substantial interest in the relief which is sought. Cook v. City of Evansville (1st Dist. 1978) Ind.App., 381 N.E.2d 493. Prentice’s claim for relief was for “physical and mental damages.” Record at 22. Even were I to accept that Nettie served as Prentice’s personal representative and had a personal interest in that relief, her recovery, if any, would be problematical at best. I.C. 34-1-1-1 (Burns Supp. 1982) provides that the “personal representative” may continue or bring the action but may “recover only the reasonable medical, hospital and nursing expenses and loss of income .... ” There is absolutely no evidence that Prentice even required or obtained medical, hospital or nursing services as a result of the collision. There is absolutely no evidence that he lost income as a result of the collision. Accordingly, the majority’s determination that Nettie succeeded to a recoverable loss sustained by Prentice is sheer unfounded speculation.
I see no support for the position of the majority in Vernon Fire and Casualty Insurance Co. v. Matney (1st Dist. 1976) 170 Ind.App. 45, 351 N.E.2d 60. It was specifically held in that case that the availability of intervention “does not turn solely upon the application of res judicata.” In Matney the insurance company was repeatedly notified and given opportunity to participate in the lawsuit but repeatedly disclaimed any coverage or liability. Contrary to the statement made by the majority, Nettie did not possess the power to intervene and prosecute her separate claim. As heretofore not*1156ed, she was specifically denied that right or power by the severance ruling of the court which was prompted by Cynthia Wheeler’s motion.
Even were I to agree that Nettie’s participation in the August 1980 trial estops her from asserting an independent claim with respect to the subject matter of that litigation, I could not concur. The majority holds that Nettie is barred from asserting not only a claim as successor to Prentice’s right of recovery, but also her independent claim for her own injuries sustained as a result of the automobile collision.
It would seem that the distinctive facts of the case before us dramatize the wisdom of the general proposition that a person appearing in litigation in one capacity is not affected thereby when subsequently the individual appears in another legal capacity. Anderson v. Anderson (2d Dist. 1979) Ind. App., 399 N.E.2d 391 at 401. Restatement of Judgments, Second (1982) § 36, Comment a.
In In Re Estate of Nye (2d Dist. 1972) 157 Ind.App. 236, 299 N.E.2d 854, we quoted the Supreme Court of Oregon with approval as follows:
“ ‘Whether we use the idea expressed by Judge Goodrich that there must be sufficient proximity between the interests of the two persons to make it fair to estop one with a judgment for or against the other, or use the three-fold idea found in the Restatement [§ 83, comment a, supra] there can be no such privity between persons as to produce collateral estoppel unless the result can be defended on principles of fundamental fairness in the due-process sense. A trial in which one party contests his claim against another should be held to estop a third party only when it is realistic to say that the third party was fully protected in the first trial.’ ”
It is wholly unrealistic to say that Nettie was fully protected in the August 1980 trial. I therefore concur with the majority opinion to the extent that it reverses the judgment as to Christine Burtrum but dissent with that portion of the opinion which affirms the judgment as to Nettie Burtrum. I would reverse and remand for further proceedings on the independent claims of both Christine and Nettie.
. Subsequent to the filing of this motion, an additional plaintiff, Jennifer Wheeler, was dismissed as a party.