185 F. 84 (6th Cir. 1911), 2,063, Ireton v. Pennsylvania Co.

Docket Nº:2,063.
Citation:185 F. 84
Party Name:IRETON et al. v. PENNSYLVANIA CO.
Case Date:February 07, 1911
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 84

185 F. 84 (6th Cir. 1911)

IRETON et al.



No. 2,063.

United States Court of Appeals, Sixth Circuit.

February 7, 1911

Page 85

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...

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