Allen v. Chicago & Northwestern Railway Co.

94 Wis. 93 | Wis. | 1896

Newman, J.

The plaintiff, in his brief, denies that he has been paid his loss by the insurer. In that case it was imprudent in him to demur to the answer, for by his demurrer he admits all the material allegations of the answer to be true. This is elementary. It is the settled law in this state that the acceptance of payment of his loss from the insurer substituted the insurer in all his rights against the railroad company. It put the insurance company, in all respects, into the place which he occupied in relation to his claim against the railroad company, so that it can bring suit against the railroad company, upon his original cause of action, in its own name. Swarthout v. C. & N. W. R. Co. 49 Wis. 625. All this is utterly inconsistent with any theory that, in a case where the whole loss is paid by the insurer, any right of action remains in the insured; nor can he, by any act, defeat the right of such insurer. The acceptance of payment from the insurer operates as a virtual assignment of the cause of action- to the insurer, and a part payment operates as an assignment joro tanto. Pratt v. Radford, 52 Wis. 114. Else the defendant might be called upon to pay twice, and the insured might recover twice, for the amount of his loss. This leads to absurdity. In this state no action could be brought in the plaintiffs name for the benefit of the insurer. Every action must be brought in the name of the real party in interest. The answer, while undoubtedly sufficient in substance, sets out the defense but meagerly and without detail. It could not be gathered from it who the insurer is, nor how much was paid. Much which might become important is absent. But, if the plaintiff desired more certainty of statement, his remedy was by a motion for that purpose.

By the Court.— The order of the circuit court is reversed, and the cause remanded with direction to overrule the demurrer.