Allen v. Chi. & N. W. Ry. Co.

Decision Date13 October 1896
CourtWisconsin Supreme Court
PartiesALLEN v. CHICAGO & N. W. RY. CO.

OPINION TEXT STARTS HERE

Appeal from circuit court, Monroe county; O. B. Wyman, Judge.

Action by Alexander Allen against the Chicago & Northwestern Railway Company. A demurrer to answer was sustained, and defendant appeals. Reversed.

The action is for a negligent fire which burned a quantity of hay belonging to the plaintiff. The answer alleges that the hay was insured against fire, and that the insurer has paid the loss in full to the plaintiff. The plaintiff demurred to this answer as not stating a defense. The demurrer was sustained, and the defendant appeals.Winkler, Flanders, Smith, Bottum & Vilas, for appellant.

D. F. Jones, for respondent.

NEWMAN, J.

The plaintiff, in his brief, denies that he has been paid his loss by the insurer. In that case it was imprudent in him to demur to the answer, for by his demurrer he admits all the material allegations of the answer to be true. This is elementary. It is the settled law in this state that the acceptance of payment of his loss from the insurer substituted the insurer in all his rights against the railroad company. It put the insurance company, in all respects, into the place which he occupied in relation to his claim against the railroad company, so that it can bring suit against the railroad company, upon his original cause of action, in its own name. Swarthout v. Railroad Co., 49 Wis. 625, 6 N. W. 314. All this is utterly inconsistent with any theory that, in a case where the whole loss is paid by the insurer, any right of action remains in the insured; nor can he, by any act, defeat the right of such insurer. The acceptance of payment from the insurer operates as a virtual assignment of the cause of action to the insurer, and a part payment operates as an assignment pro tanto. Pratt v. Radford, 52 Wis. 114, 8 N. W. 606. Else the defendant might be called upon to pay twice, and the insured might recover twice, for the amount of his loss. This leads to absurdity. In this state no action could be brought in the plaintiff's name for the benefit of the insurer. Every action must be brought in the name of the real party in interest. The answer, while undoubtedly sufficient in substance, sets out the defense, but meagerly and without detail. It could not be gathered from it who the insurer is, nor how much was paid. Much which might become important is absent. But, if the plaintiff desired more certainty of...

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17 cases
  • Rhinehart v. Denver & R.G.R. Co.
    • United States
    • Colorado Supreme Court
    • 3 Abril 1916
    ... ... Miller, 96 Tenn ... 35, 33 S.W. 615, 31 L.R.A. 604, 54 Am.St.Rep. 812 ... The ... following cases: Allen v. Chicago & Northwestern Ry. Co., 94 ... Wis. 93, 68 N.W. 673; Swarthout v. Chicago & Northwestern Ry ... Co., 49 Wis. 625, 6 N.W. 314; Pratt v ... ...
  • American Fidelity & Cas. Co. v. All American Bus Lines
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • 24 Enero 1950
    ...139 N.C. 427, 51 S.E. 1029, 2 L.R.A., N.S., 921; Globe & Rutgers Fire Ins. Co. v. Foil, 189 S.C. 91, 200 S.E. 97; Allen v. Chicago & N. W. Ry. Co., 94 Wis. 93, 68 N.W. 873. Contra: Anheuser-Busch, Inc., v. Starley, 28 Cal.2d 347, 170 P.2d 448, 166 A.L.R. 198; Ill. Cent. R. Co. v. Hicklin, 1......
  • Foster v. The Missouri Pacific Railway Company
    • United States
    • Missouri Court of Appeals
    • 2 Mayo 1910
    ... ... Insurance Co. v. Railroad, 74 Mo.App. 107; ... Insurance Co. v. Railroad, 149 Mo. 165; Allen v ... Railroad, 68 N.W. 873; Marvin Ins. Co. v ... Railroad, 41 F. 643. (3) There was not sufficient ... evidence in this case to go to the jury ... ...
  • Fritz v. St. Louis, Iron Mountain & Southern Railway Company
    • United States
    • Missouri Supreme Court
    • 31 Mayo 1912
    ... ... 107; Ins. Co ... v. Railroad, 73 N.Y. 399; Blanchard v. Engine ... Works, 142 Mo.App. 319; 4 Cooley's Briefs on Ins., ... pp. 39, 27; Allen v. Railroad, 94 Wis. 93. (b) The ... action being at law, under the code of this State, if the ... plaintiffs had been paid the full value of ... ...
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