British America Assur. Co. v. Colorado & S. Ry. Co.
| Decision Date | 06 May 1912 |
| Citation | 52 Colo. 589,125 P. 508 |
| Parties | BRITISH AMERICA ASSUR. CO. v. COLORADO & S. RY. CO. |
| Court | Colorado Supreme Court |
Rehearing Denied July 1, 1912.
Error to District Court, City and County of Denver; Booth M Malone, Judge.
Action by the British America Assurance Company against the Colorado & Southern Railway Company. There was a judgment of dismissal, and plaintiff brings error. Reversed and remanded.
S. G. Williams, of Denver, for plaintiff in error.
E. E Whitted, of Denver, for defendant in error.
Action by the British America Assurance Company against the Colorado & Southern Railway Company to recover the amount of a fire loss paid by the former to Alvin Maul. The first cause of action states that Maul was the owner of certain buildings and personal property of the value of $4,310.40, located adjacent to the track and right of way of the railway company; that September 7, 1902, the insurance company insured the property against loss from fire for three years in the sum of $1,800; that March 2, 1904, a locomotive of the railway company caused and set out a fire which totally destroyed the property; that the policy of insurance contained the following clause: 'If this company shall claim that the fire was caused by the act or neglect of any person or corporation, Private or municipal, this company shall, on payment of the loss, be subrogated to the extent of said payment to all right of recovery by the insured for the loss resulting therefrom, and said right shall be assigned to this company on receiving said payment'--that the insurance company on demand paid Maul $1,800 on account of the loss; that Maul assigned to it all his right against the railway company to the extent and amount of the insurance so paid; that, after the insurance company had paid the loss the railway company, with full knowledge of that fact, settled with Maul on account of the fire for the amount of his loss in excess of the insurance so paid, but refuses to pay either Maul or the insurance company any portion of the $1,800. The second cause of action is identical with the first, except it is alleged the railway company negligently caused and set out the fire. Defendant demurred to the complaint upon three grounds: First, that the assignment and subrogation sought to be enforced is prohibited by the act of 1903; second, defect in parties plaintiff, and splitting up the cause of action; third, that the complaint does not state facts sufficient to constitute a cause of action. The demurrer was sustained, and judgment entered dismissing the action.
In 1874 the Legislature passed the following act: 'That every railroad corporation operating its line of road or any part thereof within this state, shall be liable for all damages by fire that is set out or caused by operating any such line of road or any part thereof, and such damages may be recovered by the party damaged by the proper action in any court of competent jurisdiction; provided, the said action be brought by the party injured within three years next after the said damage shall have been inflicted or caused.' General Laws 1877, p. 740, § 2237. In 1887 the act was amended to read: 'Every railroad corporation operating its line of road, or any part thereof, shall be liable for all damages by fire, that is set out or caused by operating any such line of road or any part thereof, and such damages may be recovered by the party damaged by the proper action, in any court of competent jurisdiction; * * * Provided the said action be brought by the party injured within three years next after it accrues.' Session Laws 1887, p. 368.
In 1903 an act was passed entitled:
Session Laws 1903, p. 404.
2. Maul's loss was paid in full; a portion by the plaintiff, the balance by the defendant. He has no further right or interest in the claim against the railway company. When it settled with him, it narrowed the transaction down to the right of the insurance company to recover against it. The statute provides that suits shall be brought in the name of the real party in interest, and the parties here are the only ones now having any interest in the transaction. The railway company protected itself against more than one suit when it paid all Maul's loss except the insurance. This is not a splitting up of Maul's right against the railway company, because there is but one item remaining to be determined, and that is the right of the insurance company to recover from the railway company, and it is therefore impossible to split the cause of action. All liability of the railway company to Maul on account of the fire has been settled. Liverpool Steam Co. v. Insurance Co., 129 U.S. 397, 9 S.Ct. 469, 32 L.Ed. 788; St. Louis Ry. Co. v. Insurance Co., 139 U.S. 235, 11 S.Ct. 554, 35 L.Ed. 154; Marine Insurance Co. v. St. Louis Co. (C. C.) 41 F. 643; Norwich Insurance Society v. Standard Oil Co., 59 F. 984, 8 C.C.A. 433; Fairgrieve v. Marine Co., 94 F. 686, 37 C.C.A. 190; Swarthout v. Ry. Co., 49 Wis. 625, 6 N.W. 314; Insurance Co. v. Railway Co., 73 N.Y. 399, 29 Am.Rep. 171; C., B. & Q. Ry. Co. v. German Ins. Co., 2 Kan. App. 395, 42 P. 594; Hustisford Ins. Co. v. C., M. & St. P. Ry. Co., 66 Wis. 58, 28 N.W. 64; Hartford Ins. Co. v. Wabash Ry. Co., 74 Mo.App. 106; A., T. & S. F. Co. v. Home Ins. Co., 59 Kan. 432, 53 P. 459.
3. The statute of 1903 provides that every railroad company shall be liable for all damage by fire set out or caused by the operation of its road, whether negligent or otherwise. The ancient common law held one liable for all damages by fire set out or caused by him, and the statute imposing absolute liability for such damages is said to be declaratory of this ancient common law of England. But according to modern common law as interpreted by our American courts, in the absence of a statute imposing absolute liability, negligence is the gist of the action. U. P. Ry. Co. v. De Busk, 12 Colo. 299, 20 P. 752, 3 L.R.A. 350, 13 Am.St.Rep. 221. The Session Laws of 1874 and 1887 provide that every railway company shall be liable for all damages by fire set out or caused by the operation of its road. The corresponding portion of the act of 1903 is identical, except that it contains the additional clause, 'whether negligent or otherwise.' Our statute for more than 30 years has continuously, without change, imposed upon railroad companies absolute liability for all damages from fire set out in the operation of their roads, whether negligence entered into the cause or not, and the only question to be determined in cases of this character was, Did the railway company set out or cause the fire in the operation of its road? If so, the answer has always been the same, namely, that it was liable. The liability clause in the act of 1903 only reenacts the pre-existing liability. The railway company since the first statute has always been liable, whether the fire was caused by negligence or not, and the additional phrase, 'whether negligent or otherwise,' does not change the status of the railway company in relation to the owner in the least. The statutes eliminate all adjectives and differences as to the origin of the fire, and exact but one condition; that is, that the fire was set out or caused by the operation of the road. In this respect the act of 1903 is no different from the former acts.
If the fire originated in the operation of the road, it makes no difference how it otherwise occurred, the company is liable.
4. The statute is intended to provide an indemnity to owners against loss from fire caused by the operation of railroads. It was enacted to settle upon whom the loss should fall, and because of the peculiar manner in which railway companies use this dangerous element, it casts the responsibility of employing it on them. The law when this insurance...
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British America Assur. Co. v. Colorado & S. Ry. Co.
...589 BRITISH AMERICA ASSUR. CO. v. COLORADO & S. RY. CO. Supreme Court of ColoradoMay 6, 1912 Dissenting opinion. For majority opinion, see 125 P. 508. WHITE. J. When the legislative act of 1903 became effective, no loss had occurred under the insurance policy. Therefore I think no right had......