Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company v. Home Insurance Company
| Citation | 108 N.E. 525,183 Ind. 355 |
| Decision Date | 13 April 1915 |
| Docket Number | 22,479 |
| Parties | The Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company v. The Home Insurance Company |
| Court | Supreme Court of Indiana |
Rehearing Denied June 17, 1915.
From Cass Circuit Court; John S. Lairy, Judge.
Action by the Home Insurance Company against The Pittsburgh Cincinnati, Chicago and St. Louis Railway Company. From a judgment for plaintiff, the defendant appeals.
Affirmed.
G. E Ross, for appellant.
Rabb & Mahoney, for appellee.
Appellee sued in its own name to recover from the appellant a judgment for a sum of money which appellee had paid to the trustees of a local lodge of a fraternal society to discharge its obligation under a fire insurance policy issued by it insuring the property of the lodge against loss by fire, the property insured, having, as alleged, been destroyed by fire through the instrumentality of fire from one of appellant's locomotive engines. The trustees of the lodge were made parties defendant to answer as to its interest in the subject-matter of the action. In material substance the averments of the complaint showed that the appellee had on January 22, 1910, insured the property of the lodge, a building and its furnishings, against loss by fire for a period of five years to the amount of $ 1,400; that on July 20, 1911, in the term of the policy of insurance, the property insured, which was located near the track of the appellant's railroad, was totally destroyed by fire which was directly communicated to the building by sparks and coals of fire emitted from one of appellant's locomotive engines in use by it on its railroad, whereby appellant became liable to the lodge in damages to an amount equal to the total amount of the insurance; that the property destroyed was of a value greater than the amount of the insurance and that appellee as it was bound to do by its contract of insurance fully paid to the trustees of the lodge the sum of $ 1,400 in discharge of its obligation to it under the policy. By reason of these facts, it was averred, appellee became and was entitled to be subrogated to the rights of the trustees and the lodge against appellant to the amount of the sum paid by appellee on the policy of insurance and for this sum it asked judgment against appellant.
Appellant demurred to the complaint on the one ground that it did not state facts sufficient to constitute a cause of action and in the memorandum which was a part of the demurrer certain particulars in which it was claimed that the complaint failed to state a cause of action were stated. The demurrer was overruled and this ruling is assigned as error. This assignment of error requires an examination of the sufficiency of the complaint only as to the objections specifically made to it in the memorandum filed with the demurrer. Acts 1911 p. 415, § 344 Burns 1914; State, ex rel. v. Bartholomew (1911), 176 Ind. 182, 185, 95 N.E. 417, Ann. Cas. 1914 B 91. Appellant has also attacked the complaint for want of facts sufficient to constitute a cause of action by an independent assignment of error in this court and under this assignment presses objections to the complaint not stated in the memorandum with the demurrer. Under the provisions of the act of 1911, supra, this assignment of error and points raised under it can avail appellant nothing. Robinson v. State (1912), 177 Ind. 263, 266, 97 N.E. 929; Hay v. State (1912), 178 Ind. 478, 98 N.E. 712; Boos v. State (1914), 181 Ind. 562, 105 N.E. 117; Stiles v. Hasler (1914), 56 Ind.App. 88, 104 N.E. 878; Combs v. Combs (1914), 56 Ind.App. 656, 105 N.E. 944.
The complaint is assailed by the demurrer to it on account of the absence of allegations in it showing negligence on the part of appellant which was a proximate cause of the destruction of the property and showing the absence of contributory negligence on the part of the owner. Neither of these allegations is essential under the law as it was on July 20, 1911, when the complaint alleged the fire and destruction of the property occurred, and as it now is. The complaint, manifestly, is based on the act of March 3, 1911, which was in force prior to the time the fire which gave rise to this action occurred. Acts 1911 p. 186, §§ 5525a, 5525b Burns 1914. Under this act a complaint need not aver either negligence on the part of the railroad company or the absence of contributory negligence on the part of the owner of the property burned. The first is not an element of the cause of action and, if the latter is involved, the act expressly makes it a matter of defense. Pittsburgh, etc., R. Co. v. Chappell (1915), ante 141, 106 N.E. 403. But it is urged by counsel for appellant, that the act of 1911 runs counter to numerous limitations of legislative power which are found in both the State and Federal Constitutions. All of these questions now raised were given full consideration by this court in Pittsburgh, etc., R. Co. v. Chappell, supra, and were determined against appellant. That the conclusion there reached is in harmony with the deliberate and well-considered declarations of courts of last resort in many states as well as in the Supreme Court of the United States is settled certainly by the many decisions cited in the opinion in that case. That this harmonious concurrence of courts in declaring the law against the position of appellant is perhaps unbroken by any exception may be taken as true from the fact that all the great learning and persistent industry of appellant's counsel have brought to light no decision to the contrary.
In Pittsburgh, etc., R. Co. v. Chappell, supra, it was contended that such an act as this, which by its terms is applicable to all railroads in the State, whether organized before the act took effect or after, using fire in their locomotive engines to generate power, must be held to violate the due process clause of the 14th amendment to the Federal Constitution, § 21 of the Bill of Rights (Art. 1), of our State Constitution, which forbid the taking of property by law without compensation, and those provisions of our State and Federal Constitutions which forbid laws impairing the obligations of contracts (Constitution, Art. 1, § 24; Federal Constitution, Art. 1, § 10), when applied to railroads such as appellant which was organized and in operation before the act became in force. This claim is urged with added earnestness in this case. The basis of the contention is that as the law of the State under which appellant's railroad was built and put in operation (Subd. 8, § 5795 Burns 1914, § 4187 R. S. 1881), authorized it to use locomotives propelled by steam power generated by fire and as the law as declared by this court made it liable for damages caused by fires resulting from the use of its engines only in the event of negligence, it acquired rights which could not be impaired or taken by subsequent legislation. And further, that, as in acquiring its right of way under the power of eminent domain, it was obliged to pay to landowners in taking their land damages resulting to that not taken, measured by the diminution in value of it by the extra danger of fires, the act before us would compel appellant to pay again. These same claims were made in a number of cases cited in the opinion of the court in Pittsburgh, etc., R. Co. v. Chappell, supra, and as therein shown can not prevail against the exercise of the police power of the State. Both of them were raised and determined against appellant's contention with convincing reason in Mathews v. St. Louis, etc., R. Co. (1894), 121 Mo. 298, 24 S.W. 591, 25 L. R. A. 161, which case was subsequently affirmed by the Supreme Court of the United States. St. Louis, etc., R. Co. v. Mathews (1897), 165 U.S. 1, 17 S.Ct. 243, 41 L.Ed. 611.
Aside from certain frivolous and technical criticisms of its allegations in particulars of insufficient moment to notice, the remaining objection to the complaint which is argued by counsel for appellant involves the question whether appellee, on paying the insurance which it had contracted to pay contingent on the destruction of the property by fire, acquired the right to be subrogated to the rights of the insured to proceed against appellant as the agency responsible for the loss of the property and to sue appellant in appellee's own name to recover the amount of the insurance paid by it.
Passing the suggestion of appellee that appellant has waived these objections by a failure to incorporate them in the memorandum made a part of the demurrer, it may be said that prior to the act of 1911, supra, where insured property had been destroyed by fire through the negligence of a railroad company it has been held in this State in harmony with the rule generally accepted that the payment of the insurance by the insurer amounted to an equitable assignment of so much of the claim of the insured against the railroad company and subrogated the insurer to the rights of the insured to that extent, for which the right of the insurer in its own name to sue the railroad company has also been recognized in this State. New York, etc., R. Co. v. Roper (1911), 176 Ind. 497, 96 N.E. 468, 36 L. R. A. (N. S.) 952; Phenix Ins. Co. v. Pennsylvania R. Co. (1893), 134 Ind. 215, 33 N.E. 970, 20 L. R. A. 405; Pittsburgh, etc., R. Co. v. Germania Ins. Co. (1909), 44 Ind.App. 268, 87 N.E. 995; Lake Erie, etc., R. Co. v. Hobbs (1907), 40 Ind.App. 511, 81 N.E. 90. But it is contended by counsel for appellant that as the act of 1911, supra, expressly vests a right of action in the owner alone, no right of subrogation and no right of action in favor of appellee against appellant can arise; but that on the contrary under its provisions, appellant acquired an insurable interest in the property...
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