Ireton v. Pennsylvania Co.

Decision Date07 February 1911
Docket Number2,063.
PartiesIRETON et al. v. PENNSYLVANIA CO.
CourtU.S. Court of Appeals — Sixth Circuit

Orville S. Brumback (Clem V. Hoke, of counsel), for plaintiffs in error.

Wheeler & Bentley and Marshall & Fraser, for defendants in error.

Before SEVERENS and KNAPPEN, Circuit Judges, and DENISON, District judge.

SEVERENS Circuit Judge.

The plaintiff commenced this action in the court of common pleas for the county of Van Wert, state of Ohio, against the Pennsylvania Company to recover damages suffered from a fire caused by the alleged negligence of the defendant in the operation of its railroad on its line adjacent to a lot of the plaintiff's on which were an elevator, warehouse, and other buildings and a large quantity of personal property consisting of machinery, grain, flour, and other items, which it is alleged were destroyed by fire. The negligence complained of was the emitting of sparks from a locomotive engine which were blown over the buildings and set them on fire.

The plaintiff joined also as defendants some 14 insurance companies who had issued policies on the property destroyed. In the petition, having stated its cause of action against the Pennsylvania Company, the ground on which the insurance companies were joined is stated as follows:

'Each of the defendants other than said Pennsylvania Company is and then was an insurance company duly incorporated, doing business in Ohio, and had insurance on some part of said property so consumed or damaged and paid a claim of plaintiffs on account of the loss of the property so insured, and, as plaintiffs are informed, makes the claim that it is subrogated to some of the rights of plaintiffs herein.
'Wherefore plaintiffs pray that each of the defendant insurance companies be required to set up whatever interest it claims or be barred from claiming any part of the recovery herein.'

The answer of the Pennsylvania Company denies the allegation of negligence contained in the petition. The defendant insurance companies filed answers which were all alike and of which that of the Allemania Fire Insurance Company is a sample. It is here reproduced:

'This answering defendant avers that by the provisions of said policy and contract of insurance, and by such payment to plaintiffs, it was to and did become subrogated to the right of plaintiffs, in such loss and damage, to the extent of such payment. It avers that it is still the owner of said subrogated right and interest.
'Wherefore this answering defendant prays, if plaintiffs recover in this suit from the defendant Pennsylvania Company, that the court will make such order as will protect its rights herein against plaintiffs, and for all proper relief.'

The Pennsylvania Company filed in the state court a petition for removal of the cause into the Circuit Court of the United States for the Northern District of Ohio on the ground that it had a separable controversy with the plaintiffs in the suit which could be determined without the presence of the other defendants. The case was removed, and, on the filing of the transcript in the Circuit Court of the United States, the plaintiffs to the action and the Allemania Fire Insurance Company made separate motions to remand the case to the state court, because, as was alleged, the Circuit Court had no jurisdiction of the case on the ground of diverse citizenship; but the motions were denied. The case was brought on for trial before a jury and resulted in a verdict in favor of the defendants whereupon a judgment was entered in the following form:

'The court coming now to enter final judgment in this cause, it is ordered, adjudged, and decreed that the petition of the plaintiffs, and the answers and cross-petitions of the several insurance companies herein, be and are hereby dismissed; and that the defendant the Pennsylvania Company have and recover of the plaintiffs the costs of this action, save and except the costs made up on the several answers and cross-petitions of the defendant insurance companies. As to said latter costs it is ordered, adjudged, and decreed that said the Pennsylvania Company have and recover of each of said insurance companies, respectively, the costs made upon its answer and cross-petition. To which judgment of the court the plaintiffs and the said insurance companies each respectively
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6 cases
  • Lahman v. Burnes Nat. Bank
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • 20 d3 Julho d3 1927
    ...Co. v. U. S., 270 U. S. 349, 46 S. Ct. 284, 70 L. Ed. 624. An assignment that judgment is contrary to law is not reviewable. Ireton v. Penn. Co. (C. C. A.) 185 F. 84; Craig v. Dorr (C. C. A.) 145 F. 307; U. S. v. Gordin (C. C. A.) 9 F.(2d) 394; Smith v. Hopkins (C. C. A.) 120 F. 921; Humphr......
  • Pennok Oil Co. v. Roxana Petroleum Co. of Oklahoma
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • 19 d4 Abril d4 1923
    ... ... indefinite to raise any question for review. United ... States v. Atchison, T. & S.F. Ry. Co. (C.C.A.) 270 F. 1; ... Ireton et al. v. Pennsylvania Co., 185 F. 84, 107 ... C.C.A. 304; Chicago Terminal Transfer R. Co. v ... Bomberger, 130 F. 884, 65 C.C.A. 64; United ... ...
  • Babcock v. Norton
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 15 d1 Dezembro d1 1924
    ...v. Corey Bros. Construction Co. (C. C. A.) 205 F. 282; Lamon v. Speer Hardware Co., 190 F. 734, 111 C. C. A. 462; Ireton v. Pennsylvania Co., 185 F. 84, 107 C. C. A. 304; Ibbs v. Archer, 185 F. 37, 107 C. C. A. 141; Provident Life & Trust Co. v. Camden, 177 F. 854, 101 C. C. A. 68; Lewis v.......
  • United States v. Bowling
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • 2 d2 Dezembro d2 1919
    ... ... indefinite to be considered. Chicago, M. & St. P. Ry. Co ... v. Anderson, 168 F. 901, 94 C.C.A. 241; Ireton v ... Pennsylvania Co., 185 F. 84, 107 C.C.A. 304; Craig ... v. Dorr, 145 F. 307, 76 C.C.A. 559; Chicago Terminal ... Transfer R. Co. v ... ...
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