Anderson v. Miller

• Decision Date: 17 January 1896
• Citation: 33 S.W. 615,96 Tenn. 35
• Parties: ANDERSON et al. v. MILLER et ux.
• Court: Tennessee Supreme Court

33 S.W. 615

96 Tenn. 35

ANDERSON et al. v. MILLER et ux.

Supreme Court of Tennessee.

January 17, 1896

Appeal from circuit court, Davidson county; Claude Waller, Judge.

Action by George E. Miller and wife against J. J. Anderson and another for damages to plaintiffs' building by fire due to defendants storing cotton therein in breach of a condition of lease. From a judgment for plaintiffs, defendants appeal. Affirmed.

R. L Morris, for appellant Anderson. Steger, Washington & Jackson for appellant Grantland.

Nolen & Slemons and Henderson & Eggleston, for appellees.

WILKES J.

This is an action for damages growing out of a fire upon premises belonging to plaintiffs, Miller and wife, but occupied by Anderson, and by Grantland as lessee or tenant under Anderson. The cause was tried before the court and jury, and judgment rendered for plaintiffs for $1,700, and defendants have appealed and assigned errors.

It appears that Anderson and Mrs. Miller owned adjoining store or business houses in Nashville, the buildings being only a few inches apart; the roofs coming down together, and being drained by the same gutter. In August, 1891, Anderson, being pressed for room in his building, rented Mrs. Miller's building, or a part of it, from her agent, for the purpose of storing his buggies and carriages on the first floor. It is a matter of some controversy whether he was to have the use of the basement and second story, or only the first; and this question was submitted to the jury, under a proper charge. However this may be, he subrented to Grantland the basement and second story for the storage of cotton, and it was occupied by him for this purpose from November, 1891, to February 24, 1892, so far as the record discloses, without the plaintiffs' knowledge. At that date a fire originated in Anderson's house or factory, completely destroying it as well as the roof and part of the second story floor and the rear windows and frames of Mrs. Miller's house. Mrs. Miller's building was fully insured, and she collected from the insurance company $2,420, in full of her loss. She used $1,980.50 of this amount to repair her building, making it as valuable as before the fire. She then sued Anderson and Grantland, averring that Anderson only rented the first story of her building for storing buggies, etc., and he and Grantland had wrongfully taken possession of the second story, and permitted cotton to be stored therein, by reason of which fact fire was conveyed into the second story from the Anderson building, and burned the floor and roof, and made it difficult and wellnigh impossible to extinguish the fire, so that the floor and roof were destroyed. A separate count admits the rightful possession of the second story, but alleges that cotton, a highly-inflammable substance, was stored therein contrary to express agreement. Several pleas were filed, both general and special. Among the latter, it was set up that plaintiff had been already paid the full value of her house by the insurance company, and that the insurance company was subrogated to all of plaintiff's rights of action. These pleas were, on motion, stricken out as insufficient, and this is assigned as error. It is also assigned as error that the trial judge committed an error in his charge to the jury, which will be fully considered hereafter. It is also assigned as error that the court charged that the measure of damages was the reasonable cost of restoring the property to its former condition. Other errors are assigned, which are not material, and need not be specially considered, except that the court charged the jury that the rights of Grantland were measured by those of Anderson, because it was through him he occupied the premises.

In regard to the proper parties to the action, we do not think the assignment well taken. If it be conceded that the insurance company, having paid the entire fire loss, is now entitled to be subrogated to the rights of the insured, as against the tort feasor, or to recover back from him the amount he recovers, still it does not prevent a recovery in the name of the insured for the damage sustained. The question of who will be entitled to the proceeds of the recovery,-the insurer or the insured,-is a matter between them, and constitutes no defense to an action for the damages caused by the wrong, which, in any event, must be brought in the name of the owner and insured, although it might be for the use of the insurer. 24 Am. & Eng. Enc. Law, pp. 308-30; Perrott v. Shearer, 17 Mich. 48, 55, 56; Clark v. Wilson, 103 Mass. 219-227; Hayward v. Cain, 105 Mass. 213; Weber v. Railroad Co., 35 N. J. Law, 409; Mason v. Sainsbury, 3 Doug. 61; Yates v. Whyte, 4 Bing. N. C. 272; Hart v. Railroad Corp., 13 Metc. (Mass.) 99; Insurance Co. v. Woodbury, 45 Me. 453; Carpenter v. Insurance Co., 16 Pet. 501; Insurance Co. v. Updegraff, 21 Pa. St. 518; Kernochan v. Insurance Co., 17 N.Y. 428; Honore v. Insurance Co., 51 Ill. 410; Insurance Co. v. Boomer, 52 Ill. 442.

In Perrott v. Shearer, 17 Mich. 48, the defendant, a sheriff, wrongfully levied on goods, the property of the plaintiff, assignee. The assignee had insured said goods, and they were destroyed while in possession of defendant sheriff. In an action to recover the value of the goods, the defendant pleaded that the plaintiff had been paid value of same by the insurance company. Cooley, J., delivered the opinion of the court, and said: "He [the defendant] is found to be a wrongdoer in seizing the goods, and he cannot relieve himself from responsibility to account for their full value, except by restoring them. He has no concern with any contract the plaintiff may have with any other party in regard to the goods, and his rights or liabilities can neither be increased nor be diminished by the fact that such a contract exists. He has no equities, as against the plaintiff, which can entitle him, under any circumstances, to an assignment of the plaintiff's policies of insurance. The accidental destruction of the goods in his hands was one of the risks he run when the trespass was committed, and we do not see how the law can relieve him from the consequences. If the owner, under such circumstances, keeps his interest insured, he cannot be held to pay the money expended for that purpose for the interest of the trespasser. He already has a right of action for the full value of the goods, and he does not give that away by taking a contract of insurance. For the latter he pays an equivalent in the premium, and is therefore entitled to the benefit of it, if any benefit shall result. The trespasser pays nothing for it, and is therefore justly entitled to no return. The case, we think, is within the principle of Merrick v. Brainard, 38 Barb. 574, which appears to us to have been correctly decided. The plaintiff recovers of the defendant for the wrong that has been done him in taking his goods, and he recovers of the insurance company a large sum for a small outlay, because such payment was the risk they assumed, and for which they were fully compensated. It is not a question of importance, in this inquiry, whether the act of the defendant caused the loss or not. His equitable claim to a reduction of damages, if he could have any, would spring from the fact that the plaintiff recovers pay for his property twice; but the answer to this is that he recovers but once for the wrong done him, and he receives the insurance money upon a contract to which the defendant is in no way privy, and in respect to which his own wrongful act can give him no equities." Perrott v. Shearer, 17 Mich. 55, 56.

Clark v. Wilson, 103 Mass. 219, was an action for wrongful conversion of a boat. Plaintiff had received from an insurance company the full value of the vessel, but sued the defendant for conversion. It was pleaded that plaintiff had received from an insurance company full value of the vessel, and that, therefore, the right of action, if any, was in the insurance company. The court said: "The result is that, allowing to the abandonment made by the plaintiffs, and the recovery and payment of a total loss, the full effect for which the defendant contends,-of an abandonment by an absolute owner, and payment of a total loss to him,-they did not defeat the right to bring an action at law in the name of the plaintiffs for the tort previously committed against them. The question whether the damages recovered will belong to them, or to the insurers, is a question in which the defendant has no interest, and which is not now in issue." Clark v. Wilson, 103 Mass. 227.

In Weber v. Railroad Co., 35 N. J. Law, 409 (action of insured against a railroad company for the benefit of an insurance company, the insurance company having paid the amount of loss), the court said: "Notwithstanding such payment, an action will lie by the insured against the railroad company. The insurance is to be treated as a mere indemnity, and the insured and insurer...