No. 27,356.

#### C. C. Smith and F. A. Dyson, Copartners, as The Smith-Dyson Motor Company, Appellees, v. The United Warehouse Company, *Appellant.*

SYLLABUS BY THE COURT.

1. Theft *Insurance*— Subrogation *as Against Warehouseman*— Parties. An automobile was stolen from a warehouse in which is was stored, and when returned to the owner was greatly depreciated in value. The owner was insured against theft, and the insurance company discharged its liability to the owner by payment of a sum less than the total amount of damages the owner had sustained. *Held,*an action against the warehouseman for the benefit of the insurance company was properly brought in the name of the insured.

2. *Same*— Subrogation—Pleading — *Evidence*— *Special Findings.*Assignments of error by defendant relating to pleading, evidence, special findings, and verdict, considered, and held to be without merit.

3. Warehousemen — *Liability for Theft*— *Action for Benefit of Insurer*— *Amount Recoverable.*The proceedings considered, and *held,*the court is unable to declare that an instruction to the jury, limiting amount of recovery by plaintiffs to the amount of the insurance money, was erroneous.

Insurance, 33 C. J. p. 43 n. 42. Trial, 38 Cyc. pp. 1516 n. 57, 1518 n. 69, 1521 n. 84.

Appeal from Sedgwick district court, division No. 2; Thornton W. Sargent, judge.

Opinion filed May 7, 1927.

Affirmed.

*C. A. Matson*and *1. H. Stearns,*both of Wichita, for the appellant.

*L. A. Hasty, Robert R. Hasty*and *George E. Ha9ty,*all of Wichita, for the appellees.

The opinion of the court was delivered by

Burch, J.:

The action was one for damages against a warehouseman for injury to a stored automobile which was stolen from the warehouse and afterwards recovered. Plaintiffs prevailed, and defendant appeals.

When stored the automobile was worth $2,725, and when recovered by the owners it was worth $1,000. The owners carried theft insurance, and the insurance company paid them $1,060. The owners sued the warehouse company for the difference between the value of the automobile when stored and when returned, plus expenses incurred in recovering it. The proved damages were $1,826.30. One of the plaintiffs, F. A. Dyson, who personally conducted the business of storing' the automobile and of settling with the insurance *516company, testified as if he were the firm. He said he assented to the bringing of suit in his name, but did not employ the attorneys, and had no interest in the outcome of the case. At the trial, some kind of a subrogation agreement between plaintiffs and the insurance company was introduced in evidence. The court referred to it as an assignment of plaintiffs’ claim for loss to the insurance company. The court instructed the jury that if a verdict were returned for plaintiffs, it would be for benefit of the insurance company, and the amount of recovery should be $1,060. The verdict was for that amount.

Defendant is aggrieved because plaintiffs sued without mentioning the insurance policy or the subrogation agreement in the petition, and because the action was commenced and prosecuted as it was, defendant finds much fault with the result. Defendant was a wrongdoer, the damages occasioned by its conduct exceeded the amount of insurance, and it was liable for the entire loss. In such cases the law requires that the suit be brought by the insured, and the requirement is made for the benefit and protection of the wrongdoer. The subject is presented as clearly as the court is able to present it in the opinion in the case of *Insurance Co. v. Railway Co.,*98 Kan. 344, 157 Pac. 1187, which quoted from the opinion in *Railroad Co. v. Insurance Co.,*59 Kan. 432, 53 Pac. 459, and cited the opinion in the case of *Insurance Co. v. Cosgrove,*85 Kan. 296, 116 Pac. 819. In this instance, application of the rule produoed this result: Defendant’s entire liability is adjudicated, plaintiffs recover an amount equal to the insurance money for the benefit of the insurance company, and defendant is not exposed to further litigation.

Defendant pleaded there was an insurance policy, and undertook to show it had an interest in the insurance by virtue of a loss-payable provision attached to the policy. The jury found specially no such provision existed, and the finding is sustained by evidence.

While complaining that the subrogation agreement was not pleaded, defendant complains the agreement was introduced in evidence. The agreement was of no importance. Without it the insurance company was privileged to recover in plaintiffs’ name, by way of subrogation, the amount paid to discharge its liability to the insurer, and under the agreement, whatever its terms, the insurance company could recover no more. The agreement got into the case, and if, as the court seemed to think, it contributed to *517preclude plaintiffs from recovering the amount of damages proved above the amount of the insurance money, then bringing the agreement into the case was a distinct benefit to defendant.

The automobile was stolen from the fifth floor of the warehouse, and the burden rested on defendant to show the theft could not have been avoided by exercise of due care. While the warehouse was a model warehouse, the jury was not satisfied with the testimony of defendant’s witnesses relating to distribution and accounting for keys. The testimony was oral, its credibility and weight were matters for the jury who saw and heard the witnesses, and this court cannot determine from the record what should be regarded as proved.

Other matters discussed in defendant’s brief do not require comment. Plaintiffs assign error because the court gave the instruction referred to, limiting recovery to the amount of the insurance money. As indicated, the witness Dyson spoke for plaintiffs. It was their privilege, if they so desired, to waive damages for their loss above the amount paid by the insurance company, and this court is not able to declare as a matter of law that they did not do so.

The judgment of the district court is affirmed.