| U.S. Circuit Court for the District of Eastern Missouri | Jul 1, 1874

DILLON, Circuit Judge.

The property-destroyed exceeded in value the amount insured, and the rule of law has been long settled that the insurance company, on the payment of the loss, cannot sue the wrongdoer who occasioned it in its own name. The suit, though for the use of the insurer, must be in the name of the person whose property was destroyed. The wrongful act was single and indivisible, and gives rise to but one liability. If one insurer may sue, then, if there are a dozen, each may sue, and if the aggregate amount of all the policies falls short of the actual loss, the owner could sue for the balance. This is not permitted, and so it was held nearly a hundred years ago, in a case whose authority has been recognized ever since, both in Great Britain and in this country. London Assur. Co. v. Sainsbury, 3 Doug. 245, 1783, in which the exchequer chamber unanimously affirmed the judgment of the king’s bench for the defendant; Rockingham Mut. Fire Ins. Co. v. Bosher, 39 Me. 253" date_filed="1855-07-01" court="Me." case_name="Rockingham Mutual Fire Ins. v. Bosher">39 Me. 253, and cases cited; Hart v. Western R. Corp., 13 Metc. [Mass.] 99, where the subject is fully gone into by Chief Justice Shaw; Connecticut Mut. Life Ins. Co. v. New York & N. H. R. Co., 25 Conn. 265" date_filed="1856-09-15" court="Conn." case_name="Connecticut Mutual Life Insurance v. New York & New Haven Railroad">25 Conn. 265, 278; Peoria, M. & F. Ins. Co. v. Frost, 37 Ill. 333" date_filed="1865-04-15" court="Ill." case_name="Peoria Marine & Fire Insurance v. Frost">37 Ill. 333; Fland. Ins. pp. 360, 481, 591. But it is insisted that the provision of the Missouri statute, that every action shall be prosecuted in the name of the real party in interest, though it declares that the provision shall not authorize the assignment of a thing in action not arising out of contract, (Gen. St. 1865, p. 651, § 2,) changes the rule. However it might be if the amount paid by the insurer to the assured had equaled or exceeded the value of the property, and the assured had made a full assignment, it is plain that this case falls within all the reasons of the rule itself, as expounded by Buller and Mansfield in the case in Douglas above cited, and which is the foundation of the law on this subject. The demurrer to the petition is sustained.

Judgment accordingly.