Continental Ins. Co. v. H.M. Loud & Sons Lumber Co.

• Decision Date: 04 October 1892
• Parties: CONTINENTAL INS. CO. v. H. M. LOUD & SONS LUMBER CO.
• Court: Michigan Supreme Court

53 N.W. 394

93 Mich. 139

CONTINENTAL INS. CO. v. H. M. LOUD & SONS LUMBER CO.

Supreme Court of Michigan

October 4, 1892

Error to circuit court, Iosco county; WILLIAM H. SIMPSON, Judge.

Action by the Continental Insurance Company, as subrogee of the firm of Rix Bros., against the H. M. Loud & Sons Lumber Company to recover money paid to Rix Bros. on a loss resulting from defendant's negligence. Judgment for plaintiff. Defendant brings error. Reversed.

M J. Connine, for appellant.

Henry & Cornville, for appellee.

LONG, J.

October 29, 1889, the plaintiff issued to Rix Bros., a grocery firm doing business in Oscoda village, its policy of insurance in the sum of $1,000. The goods insured were contained in a two-story frame warehouse, located back of the firm's general store, and near the railroad operated and used by the defendant in this suit. June 30, 1890, a fire occurred by which the property so insured was destroyed, and the plaintiff paid Rix Bros., on the policy for such loss, the sum of $866.20, and took from them the following assignment "Subrogation. Be it known that the Continental Insurance Company of New York did insure Rix Bros., under its policy No. 311, Oscoda, Michigan, as follows: $1,000 on their stock of groceries and provisions, flour, feed, and hay, all while contained in the two-story frame warehouse of the Oscoda Boom Company, situated on block 19, village of Oscoda, Michigan. Further, that on the 30th day of January, 1890, a fire occurred by which property so insured was damaged or destroyed to the amount of twenty-six hundred ninety-eight 62-100 dollars: Now, therefore, we, Rix Bros., in consideration of eight hundred sixty-six 20-100 dollars to me in hand paid by the said Continental Insurance Company of New York, in full settlement of claim against said company by reason of such insurance and loss, do hereby assign, set over, transfer, and subrogate to the said Continental Insurance Company of New York all the right, claim, interest choses, or things in action, to the extent of eight hundred sixty-six 20-100 dollars paid me as aforesaid, which I may have against the said H. M. Loud & Sons Lumber Company, or any other party, person, or corporation who may be liable, or hereafter adjudged liable, for the burning or destruction of said property; and I hereby authorize and empower the said Continental Insurance Company of New York to sue, compromise, or settle, in my name or otherwise, to the extent of the money paid as aforesaid; and the said insurance company is hereby substituted in my stead, and subrogated to all my rights in the premises, it being expressly stipulated that any action taken by said company shall be without charge or cost to me. RIX BROS. Per E. RIX. Witness: LILLIE WATERS." This action is brought to recover from the defendant the moneys paid by the plaintiff to Rix Bros. for their loss, the claim being that the fire was occasioned by the use of a locomotive run and operated on defendant's railroad. To the declaration filed defendant pleaded the general issue. The case was tried in the circuit court for Iosco county before a jury, where plaintiff had verdict and judgment for the amount of money paid by Rix Bros. It appears by the testimony in the case that the loss to Rix Bros. by this fire was the sum of $2,698.62; and the claim on the trial was...