120 Minn. 230 | Minn. | 1913
Ernst Schuette’s dwelling house, located within 25 feet of the railway tracks of the defendant, where its line passes in a southwesterly direction from Dennison to Nerstrand, in this state, was, together with granary, some grain, and other property, destroyed by fire claimed to have been started by a freight train which passed at about 4:45 a. m. on March 24, 1911. Plaintiff had insured the house and property of Schuette against fire, and after the loss adjusted the same, paying him $1,670 and taking a formal assignment of the cause of action he had against defendant to the extent of the amount paid by it. Thereupon plaintiff brought this suit and recovered a verdict for the amount paid Schuette. The motion of defendant for judgment or a new trial being denied, it appeals.
The defendant objected to the introduction of any evidence, for the reason that it appears from the pleadings that plaintiff had paid but a portion of a fire loss and taken an assignment of but a portion of a cause of action, and that plaintiff is not the proper party plaintiff. The court overruled the objection. This is one of the errors assigned. The trial court was right.
The complaint did not show a partial assignment of a cause of action, or defect of parties plaintiff or defendant. If it had, the objection should have been taken by demurrer. Neither was it taken by
“Further answering said complaint, defendant alleges that said plaintiff has no right or legal capacity to sue in this case, and that the facts stated in said complaint do not constitute a cause of action.”
It is obvious that the answer does not present the defense urged now, namely, that the insured should have been made a party, for the rule is that, where the answer sets up in abatement defect of parties, it must name the party omitted. Jones v. City of Minneapolis, 31 Minn. 230, 17 N. W. 377; Davis v. Chouteau, 32 Minn. 548, 21 N. W. 748. The pleading did not show that any other person than plaintiff had any interest in the cause of action; neither does it appear from the evidence that any one else makes such claim.
The only question submitted to the jury was whether the freight train which passed the dwelling of Schuette at about 4:45 in the morning in question set the fire. When this train passed, no light or fire was seen at the house; but within a half hour thereafter Schuette and his wife noticed smoke in the house, and, going outside, found the fire burning in the horse manure with which the side of the house next to the track had been banked, and it had also communicated to the wall of the building. There was positive testimony of these parties that.no fire or light was used in the house that morning, all being in bed; that it was an isolated farmhouse, standing very close to the track of the defendant; that a strong wind was blowing from the track toward the building; that the freight train which passed had a heavy load pulled by two locomotives; and that there was a considerable upgrade in the direction the train was going, causing sparks to be emitted more readily than on the level or downgrade. Upon this testimony it is readily seen that the jury was-
Order affirmed.