75 P. 71 | Kan. | 1904
The opinion of the court was delivered by
B. F. Blaker & Co. recovered a judgment against the Kansas City, Fort Scott & Memphis Railroad Company for the destruction of their
“ Said second parties agree to use the above-described property for elevator and warehouse only, said premises and all buildings thereon to be used conjunctively for the purpose of receiving, storing and holding freight and property received or transported over lines of party of the first part.”
There was a further provision in the lease that the railroad company—
“shall not be held liable for any loss or damage by fire communicated either by sparks from locomotives or otherwise to any property erected or stored upon said rented premises.”
Aside from the elevator, the fire destroyed lumber sheds and other structures wholly or partly on the right of way, but on account of the provision in the lease above mentioned no recovery was sought or given for the destruction of property situated on the right of way. The lumber-yard, including structures and material, was insured in the Lumbermen’s Exchange, a mutual insurance company, to the extent of $3000. After the fire that company paid B. F. Blaker &Co., as indemnity, $2980. An agreement was made between the insurance company and B. F. Blaker & Co. that the latter should bring an action in their own names and prosecute it to judgment, and of the amount recovered the insurance company should get
not a party plaintiff is the principal ground of this contention. The claim is that as the insurance company had paid the greater part of the loss it was a proper party, and, in fact, the only real party in interest in the result of the action. This question has already received the consideration of the court and sanction has been given to the rule that where the value of the property destroyed exceeds the insurance money paid the action must be brought in the name of the owner and not in the name of the insurance company. (Railroad Co. v. Insurance Co., 59 Kan. 432, 53 Pac. 459.) The rule proceeds on the theory that the insured sustains toward the insurer the relation of trustee, and is well supported by the authorities. (Norwich Union Fire Ins. Soc. v. Standard Oil Co., 59 Fed. 984, 8 C. C. A. 433; Ætna Insurance Co. v. Hannibal & St. Joseph R. R. Co., 3 Dill. [C. C.] 1, Fed. Cas. No. 96; London Assurance Company v. Sainsbury, 3 Doug. 245; Rockingham Mut. Fire Ins. Co. v. Bosher, 39 Me. 253, 63 Am. Dec. 618 ; Hart v. Railroad Corp., 13 Metc. 99, 46 Am. Dec. 719 ; Conn. Mutual Life Ins. Co. v. N. Y. & N. H. R. R. Co., 25 Conn. 265, 65 Am.
‘ ‘ agreed by parties of the first part that they will at all times leave open and unobstructed, for the passage of wagons and vehicles, a strip of ground sixteen feet wide between their elevator and lumber sheds, parallel with main track of said railroad.”
The lumber sheds referred to were manifestly located on the right of way, and the parties contemplated that they should remain there and be used for the purpose of storing lumber and other material shipped over
“The fact that soon after the passing of an engine a fire starts near a railway-track in an enclosed field, ■covered at the time with a growth of highly inflammable vegetation, and travels before a high wind in a direction away from the track, is sufficient to warrant a jury in finding that the fire was caused by the operation of the railroad, without its appearing that the engine emitted sparks or live cinders or was put to special exertion, and without further proof excluding other possible origins.”
The case appears to have been fairly submitted to the jury, and although some of the rulings on the instructions are criticized, we find nothing in them which warrants special comment. What has already been said answers most of the objections which were made to the rulings of the court in charging the jury, and we see nothing in them or in other rulings which would warrant us in disturbing the verdict of the jury.
The judgment of the district court is affirmed.