74 Mo. App. 106 | Mo. Ct. App. | 1898
— Plaintiff brought this action against defendant for money it had paid to John Burruss on a policy of fire insurance, insuring him against loss of damage by fire to his grain, seeds, sacks, etc., contained in his two-story frame warehouse, situate near defendant’s depot, at Miami station, in the sum of $1,000. While the policy was in force the insured property, together with the building which was not insured, was destroyed and damaged by fire to the amount of $763.50. Under the terms of the policy, plaintiff was liable for three fourths of the loss or damage. The insurance company paid to Burruss the amount for which it was 'liable, to wit, $572.63. The fire which caused the loss was communicated to the property by a locomotive engine, being then operated by defendant upon its railroad.
The policy of insurance contains the following provision: “If this company shall claim that the fire was caused by-the act or neglect of any person or corporation, private or municipal, this company shall, on payment of the loss, be subrogated to the extent of such payment, to all right of recovery by the insured' for the loss resulting therefrom, and such right shall be assigned to this company by the insured on receiving such payment.”
After plaintiff had paid Burruss, and after defendant. had been notified of that fact, and that plaintiff looked to it for reimbursement, the defendant made a
The trial court gave judgment for defendant.
The liability of defendant to Burruss was based on section 2615, Revised Statutes 1889, which reads as follows. “Each railroad corporation owning or operating a railroad in this state shall be responsible in damages to every person and corporation whose property may be injured or destroyed by fire communicated directly or indirectly by locomotive engines in use upon the railroad owned or operated by such railroad corporation, and each such railroad corporation shall have an insurable interest in the property upon the route of the railroad owned or operated by it, and may procure insurance thereon in its own behalf for its protection against such damages. (Lawsl887,p. 101, sec.1.)” The liability of plaintiff to Burruss was based on the policy of insurance. Each party has discharged that liability by full settlement with Burruss. The question presented here is, can the plaintiff insurance company be subrogated to the original right of Burruss against the defendant railroad company, the latter having paid Burruss with knowledge of plaintiff’s claim?
The owner of the property destroyed has the right, •at his option, to go upon either party liable to him. He may first assert and maintain the railway company’s liability by reason of the law; or he may assert the insurance company’s liability by reason of the contract of insurance. He should not, by any principle of justice or rule of law or equity, be twice compensated for his loss. So if he recovers compensation from the railway company, it is a discharge, pro tanto, of the insurance company, since, as we have seen the insurance
But, on the other hand, if the owner first receives compensation from the insurance company the railway company can not take any benefit therefrom, for the simple reason that the latter company is the wrong doer and can not be allowed to escape liability by reason of some other having rendered compensation. This latter proposition is directly decided by the supreme court of Missouri in a well considered opinion on the liability of railway companies under section 2615 aforesaid. Mathews v. R’y, 121 Mo. 298, 336. See, also, Dillon v. Hunt, 105 Mo. 154. Whatever of wrong there may be in the injured party receiving double compensation is a matter to be made right between the injured party and the insurance company. That the injured party would hold the sum recovered of the railway company, or a proper part of it, in trust for the insurance company which had already compensated him, would seem to be the logical sequence of what has been stated. The proposition has been affirmed in several instances. R’y v. Rogers, 76 Va. 443; Ins. Co. v. Hutchinson, 21 N. J. Eq. 399.
We are, however, of the opinion, after full reflection on the point made, that it can not apply to this case from the fact that here Burruss, the owner, released all his interest in the loss by his settlement with the defendant railroad company. Thus leaving no one interested in the present action, or the proceeds of the action, or with any control over it, save the present plaintiff. In Garrison v. Ins. Co., 19 How. 317, and Randell v. Cochran, 1 Ves. Sen. 98, it was expressly held that where there had been a discharge to the wrong-doer by the owner, the insurer could maintain the action in his own name. It is true those cases were in equity, but under our code where the action should be brought in the name of the real party in interest, there can be no objection to the action
The defendant makes the further suggestion that since the property destroyed was of more value than the insurance taken out, the claim of this plaintiff must be a divided'claim — is not for the full sum of defendant’s liability — and therefore to allow plaintiff to recover would be sanctioning the splitting of causes of action. The position is not well taken. The owner has made (so far as he is concerned) an effective release to the defendant. There exists now but one undivided demand against the defendant.
The further point made by defendant that if the demand for the destruction of the property belonged jointly to plaintiff and Burruss the release by Burruss released the whole claim, has been disposed of by what hás been already said.
In our opinion the plaintiff should have prevailed in the trial court. The judgment will therefore be reversed and the cause remanded to the end that judgment may be entered for plaintiff. .