52 Wis. 114 | Wis. | 1881
There is but a single cause of action stated in the complaint, to wit, the negligence of the defendants which resulted in the destruction of the plaintiff’s mill. Our statutes provide that “ every action must be prosecuted in the name of the real party in interest ” (R. S., 714, sec. 2605), except that “ an executor .or administrator, a trustee of an express trust, or a person expressly authorized by statute, may sue without joining with him the person for whose benefit the action is prosecuted.” Section 2607. Section 2604 provides that, “ of the parties to the action, those who are united in interest must be joined as plaintiffs or defendants; but if the consent of any one who should be joined as plaintiff cannot be obtained, he may be made a defendant, the reason thereof being stated in the complaint.” The several insurance companies named in the answer, upon payment of the loss covered by the respective policies, became subrogated pro tanto to the claim of the plaintiff against the wrongdoers whose negligence caused the destruction of the mill. Under the statutes above cited, they could maintain an action against such wrongdoers in their own names, or be joined with the insured as plaintiffs in such action. Moreover, had the defendants paid the plaintiff the damages claimed, knowing that the latter had received from the insurance companies the amounts insured, the defendants would still be liable to an action by such companies' to recover the amounts so paid, and the release of the plaintiff would be no defense to the action. Where the common-law procedure prevails, the action of the insurance companies would neces
The foregoing propositions are settled by numerous adjudications, and most of them are fully sanctioned and approved by this court in Swarthout v. C. & N. W. Railway Co., 49 Wis., 625. If further authority is desired, it can be found in the cases cited in the opinion by the chief justice in that case, and in those cited in the brief of counsel for the defendant.
True, if this action should proceed in its present form, and a recovery be had, the plaintiff would hold the amount recovered, or a portion of it, in trust for the insurance companies. But this would be a trust arising by implication of law, and not an express trust within the meaning of section 2607, above quoted, which permits the trustee of an express trust to sue in his own name alone in respect to the trust.
In view of the foregoing propositions we see no escape from the conclusion that the insurance companies named in the answer and the plaintiff have a united interest in the cause of action alleged in the complaint, and in the recovery sought. Having such interest, the statute is imperative that they must be parties to the action. They must be joined as plaintiffs, unless the exigency arises which renders it proper to make some of them defendants. And so the learned circuit judge held.
By the Cov/rt. — The order overruling the demurrer to the answer is affirmed.