Chicago & A.R. Co. v. Glenny

• Decision Date: 24 October 1898
• Citation: 175 Ill. 238,51 N.E. 896
• Court: Illinois Supreme Court
• Parties: CHICAGO & A. R. CO. v. GLENNY et al.

175 Ill. 238

51 N.E. 896

CHICAGO & A. R. CO.

v.GLENNY et al.

Supreme Court of Illinois.

Oct. 24, 1898.

Appeal from appellate court, Second district.

Action by John Glenny and another against the Chicago & Alton Railroad Company. The judgment of the circuit court for plaintiffs was affirmed by the appellate court (70 Ill. App. 510), and defendant appeals. Affirmed.George S. House, for appellant.

R. W. Barger, for appellees.

This was an action on the case by appellees against appellant for damages occasioned by fire caused by a passing locomotive on defendant's railroad, destroying certain buildings and personal property belonging to the plaintiffs. There was a trial by jury resulting in a verdict for plaintiffs for $7,849.18, on which, after overruling defendant's motion for a new trial, the court entered judgment. The appellate court having affirmed that judgment, this appeal is prosecuted.

WILKIN, J. (after stating the facts).

The argument of counsel for appellant here is chiefly devoted to a criticism of the opinion of the appellate court. We concur in the views of that court, and regard the objections urged against the reasoning of the opinion without force.

It appears that the property destroyed was partly covered by insurance, and the insurance company had paid the loss before this action was brought. It is said this suit is in fact brought by that company, the intimation being that, inasmuch as plaintiffs had received compensation for their loss from the insurance company, they cannot maintain this action against the defendant. The insurer stood in the position of a surety, and having paid the loss for which the defendant, by its negligence, was primarily liable, became subrogated to the rights of the plaintiffs to the extent it had paid. If authority is needed in support of this proposition, it will readily be found in our own decisions. Insurance Co. v. Frost, 37 Ill. 333;Chadsey v. Lewis, 1 Gilman, 153;Express Co. v. Haggard, 37 Ill. 465. Other cases might be cited to the same effect, but we regard the law so well settled that it cannot be seriously questioned.

We are urged to review the evidence for the purpose of determining whether it supports the allegations of the declaration. Waiving the question whether the record preserves a ruling of the trial court on that proposition so as to make it one of law, reviewable in this court, we deem it only necessary to say that we think the testimony fairly tended to support the material averments of the declaration. The real point attempted to be urged is that there was a variance between the allegations and proof. It need scarcely be said that to entitle the defendant to have that question passed upon, even in the appellate court, it must have been pointed out and urged at the time of the trial (Libby, McNeill & Libby v. Scherman, 146 Ill. 540, 34 N. E. 801;City of East Dubuque v. Burhyte, 173 Ill. 553, 50 N. E. 1077); and this court will not presume that a variance was the ground of a motion to instruct a jury to find for the defendant (Railroad Co. v. Clausen, 173 Ill. 100, 50 N. E. 680).

Complaint is made of the first and third instructions given to the jury on behalf of plaintiffs. The objection urged against them is that they treat the first and second counts of the declaration as though they averred the same or similar acts of negligence, whereas the first alleges that the negligence consisted in permitting the right of way to be covered with dry grass and other combustible materials, and the second that the negligence consisted in defective appliances and the improper handling of the locomotive. The instructions authorize a recovery under either count of the declaration, in case both charges of negligence are sustained by the evidence. This certainly did not prejudice the defendant. The law authorizes a recovery upon proof of either one of the charges. If both were proved, it was immaterial on which of the counts the jury found. Proof of both would sustain either. But for the reference in the instructions to both the first and second counts, no fault whatever could be found with them.

The tenth of plaintiffs' instructions is also criticised. It is based on paragraph 123 of the railroad law. 3 Starr & C. Ann. St. p. 3294. The statute reads, ‘that in all actions against any person or incorporated company,’ etc. It is insisted that, the defendant not being a person, there...