131 Ky. 624 | Ky. Ct. App. | 1909
Opinion op the Court by
Affirming.
Charging that their house in Marion, Crittenden county, Kentucky, had been destroyed by the negligence of the Illinois Central Railroad Company in
A reversal is asked upon two grounds. First, the admission of incompetent evidence; second, error of the court in sustaining a demurrer td the second paragraph of defendant’s answer,
1. The incompetent evidence complained of was to the effect that other trains of appellant, at other times than on the night of the fire, had permitted live sparks and cinders to escape from their locomotives, and had set fire to logs and grass along the right of way. The admissibility of such evidence is no longer an open question. In a long line of decisions this court has held in favor of it's admissibility. Chesapeake & Ohio R. R. Co. v. Richardson, 99 S. W. 642, 30 Ky. Law Rep. 786; C., N. O. & T. P. Ry. Co. v. Falconer, 97 S. W. 727, 30 Ky. Law Rep. 152; Kentucky Central R. R. Co. v. Barrow, 89 Ky. 638, 20 S. W. 165, 6 Ky. Law Rep. 250; Illinois Central R. R. Co. v. Scheible, 72 S. W. 325, 24 Ky. Law Rep. 1708.
2. Appellant’s main ground of reversal is the action of the court in sustaining a demurrer to the second paragraph of its answer, which is as follows: £ £ For further answer defendant says that plaintiff’s house was insured in the Citizens ’ Fire Insurance Company of Missouri for the sum of $700, as it is informed, which was. the full value of said house, and that plaintiffs have received pay from said insurance company in the sum of $700 on account of said fire, which sum fully repaid the plaintiffs for any loss they sustained
The law is well settled that a wrongdoer has no right to the benefits of the insurance, and can not rely either in full or pro' tanto on the defense that the owner of the property had been previously paid by the insurance company. Payment to the owner by an insurance company of the amount of his loss does not bar the right against another- originally liable for the loss. The insurance company does not stand in the relation of a joint tort-feasor with the party through-whose negligence the property is destroyed. Anderson, etc., v. Miller, etc., 96 Tenn. 35, 33 S. W. 615, 31 L. R. A. 604, 54 Am. St. Rep. 812; Perrott v. Shearer, 17 Mich. 48; Hart v. Western R. Corporation, 13 Metc. (Mass.) 99, 46 Am. Dec. 719; Matthews v. St. Louis, etc., 121 Mo. 298, 24 S. W. 591, 25 L. R. A. 161; Am. & Eng. Eucy. of Law (1st Ed.), vol. 24, p. 304; Rockenham Mutual Fire Insurance Co. v. Bosher, 39
As we understand appellant’s position, however, it is not that the payment by the insurance company con
In the case at bar the defendant did not ask that the insurance company be made a party to the action. It may be that, as between plaintiffs and the insurance company, the latter would be equitably entitled to the damages that plaintiffs recovered. The fact, however, that a third party might be entitled to the damages as between him and plaintiffs, is not sufficient to bar the right of action by the plaintiffs. The legal title to the property destroyed was in the plaintiffs. As between the plaintiffs and the defendant the former were the real parties in interest. It is immaterial to the railroad company what may be the equities between the plaintiffs and the insurance company. All that it can demand is that a judgment in favor of the plaintiffs will be a complete defense to any further action for the same cause. In our opinion the judgment in favor of plaintiffs is conclusive, and m> action can now be maintained against the railroad1 company by the insurance company. Any right of action the insurance company may have is against the plaintiffs. For the reasons given, the trial court did not err in sustaining a demurrer to the second paragraph of defendant’s answer.
Judgment affirmed.