36 P.2d 738 (Okla. 1934), 22658, Harrington v. Central States Fire Ins. Co. of Wichita, Kan.

Docket Nº:22658.
Citation:36 P.2d 738, 169 Okla. 255, 96 A.L.R. 859, 1934 OK 536
Opinion Judge:PER CURIAM.
Party Name:HARRINGTON v. CENTRAL STATES FIRE INS. CO. OF WICHITA, KAN.
Attorney:Hughes & Dickson, of Guymon, for plaintiff in error. Gester H. La Mar, of Guymon, for defendant in error.
Case Date:October 16, 1934
Court:Supreme Court of Oklahoma

Page 738

36 P.2d 738 (Okla. 1934)

169 Okla. 255, 96 A.L.R. 859, 1934 OK 536

HARRINGTON

v.

CENTRAL STATES FIRE INS. CO. OF WICHITA, KAN.

No. 22658.

Supreme Court of Oklahoma

October 16, 1934

Petition alleged that fire started on defendant's land and spread to and burned wheat crop on insured's land, but it did not allege that there was defect in construction of tractor which set fire, or that tractor was out of repair, that defendant knew or that by exercise of reasonable diligence should have known of such defect, or that he knew or by exercise of reasonable diligence should have known that fire started on his own land was likely to spread to land of insured and destroy his crop.

Syllabus by the Court.

1. An objection that one has no legal capacity to sue goes to his right to maintain a suit at all, as, for instance, that he is an idiot, an insane person, a minor, etc., and does not include the objection that the action is not prosecuted in the name of the real party in interest.

2. A cause of action in favor of the owner of personalty on account of the wrongful destruction of such property by fire against the wrongdoer is, under section 10557, O. S. 1931, assignable.

3. Where an insurance company pays to the assured a loss occasioned by the wrong of a third party, and the value of the property destroyed by the fire exceeds the amount paid by the insurance company, the assured owner may maintain an action in his own name, or he may maintain an action jointly with the insurance company paying the loss and as trustee for the use and benefit of such company against the wrongdoer, and recover the full amount of the loss.

4. Where an insurance company pays to the assured a loss occasioned by the wrong of a third party and the value of the property destroyed by the fire does not exceed the amount paid by the insurance company, the insurance company may bring an action in its own name against the wrongdoer and recover the value of the property destroyed.

5. In every case involving actionable negligence where the alleged wrong is not willful and intentional, there are of necessity three constituent elements to its existence: (1) The existence of a duty on the part of the person complained against to protect the complainant from the injury of which he complains; (2) the failure of the defendant to perform that duty; and (3) injury to the plaintiff resulting from such failure of the defendant; and where a petition fails to show these three elements, a general demurrer thereto should be sustained.

6. Petition examined, and held that the same does not state a cause of action in favor of the plaintiff and against the defendant.

Appeal from District Court, Texas County; F. Hiner Dale, Judge.

Action by the Central States Fire Insurance Company of Wichita, Kan., against E. S. Harrington for recovery of amount paid C. T. Raines under policy of insurance on account of wrongful destruction of wheat. From an adverse judgment, defendant appeals.

Judgment reversed and cause remanded, with directions.

Hughes & Dickson, of Guymon, for plaintiff in error.

Gester H. La Mar, of Guymon, for defendant in error.

PER CURIAM.

The defendant in error will hereinafter be referred to as the plaintiff, and the plaintiff in error as defendant.

Plaintiff, on the 25th day of April, 1930, filed a suit in the district court of Texas county against the defendant, alleging that on the 6th day of July, 1928, it issued and delivered a policy of insurance to one C. T. Raines, covering a crop of wheat grown on a tract of land adjoining the farm of the defendant; that on the 17th day of July, 1928, and while said policy of insurance was in full force, the servant and agent of the defendant started a fire on the land of the defendant, which spread to the land of C. T. Raines and destroyed the crop of wheat covered by the policy of insurance; that upon proof of loss plaintiff paid to C. T. Raines the sum of $238.19 upon said policy of insurance, and procured from him an instrument designated by the parties as "an article of subrogation," which instrument was in words and figures as follows:

"Be it known that the Central States Fire Insurance Company, of Wichita, Kansas, did insure C. T. Raines, under its policy No. 2222 issued at its Hooker, Okla., agency as follows: $1000.00 on grain on N.E. 1/4 24-5-17 Texas County, Okla., for 1 month commencing on the 6th day of July, 1928, and continuing until the 6th day of August, 1928.

Further that on the 17th day of July, 1928, a fire occurred, by which the property so insured was damaged or destroyed to the amount of ------ Dollars, said fire having been caused by fire originating on adjacent premises from tractor owned by E. S. Harrington.

Now therefore, C. T. Raines, in consideration of Two Hundred Thirty-eight and 19/100 Dollars, to him in hand paid by the said The Central States Fire Insurance Company, of Wichita, Kansas, in full settlement of my claim against said Company, by reason of said loss, damage and policy of insurance I do hereby assign, set over, transfer and subrogate to the said The Central States Fire Insurance Company of Wichita, Kansas, all the right, claims, interest, choses or things in action, to the extent of two hundred thirty eight 19/100 dollars paid me as aforesaid, which I may have against E. S. Harrington or any other party, person or corporation, who may be liable, or hereafter adjudged liable, for the burning or destruction of said property, and hereby authorize and empower the said The Central States Fire Insurance Company of Wichita, Kansas, to sue, compromise or settle in my name or otherwise, and it is hereby fully substituted in my place, and subrogated to all my rights in the premises to the amount so paid. It being expressly stipulated that any action taken by said Company shall be without charge or cost to the party or parties signing below.

The undersigned states that no settlement has been made with said E. S. Harrington, or any third party for said loss or any part thereof, nor will I take any action that will disregard or jeopardize the rights of said The Central States Fire Insurance Company under the above Article of Subrogation.

Dated Aug. 3, 1928. (Signed) C. T. Raines.

(Acknowledgment.)"

The prayer was for judgment against the defendant in the sum of $238.19.

To this petition the defendant filed a demurrer on the grounds that (1) plaintiff had no legal capacity to sue; (2) that there was a defect of parties plaintiff; and (3) that said petition did not state facts sufficient to constitute a cause of action.

Upon hearing, the court overruled the demurrer, to which the defendant excepted, declined to plead further, and the court thereupon rendered judgment in favor of the plaintiff and against the defendant in the sum of $269.54, and the case is here on petition in error, with transcript attached.

The first assignment of error is that the plaintiff had no legal capacity to sue. The objection that the plaintiff had no legal capacity

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to sue goes to his right to maintain the action at all; as, for instance, that...

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