Cunningham v. Evansville & T.H.R. Co.

• Decision Date: 25 June 1885
• Citation: 102 Ind. 478,1 N.E. 800
• Parties: Cunningham and others v. Evansville & T. H. R. Co.
• Court: Indiana Supreme Court

102 Ind. 478

1 N.E. 800

Cunningham and others

v.Evansville & T. H. R. Co.¹

Supreme Court of Indiana.

Filed June 25, 1885.

Appeal from Knox circuit court.

De Wolf & Chambers, for appellants.

Iglehart & Williams and Viehe & Evans, for appellee.

Howk, J.

This is a suit by the appellants, James H. and James A. Cunningham, as plaintiffs, against the appellee, the Evansville & Terre Haute Railroad Company, as sole defendant. The object of the suit was to recover damages for the destruction of the appellants' starch and glucose works by fire, communicated thereto, as alleged, by and through the negligence of the appellee, and without any contributory negligence on the part of the appellants. The complaint of the appellants was in three paragraphs. In the first paragraph, appellants alleged that the appellee negligently failed to keep its engines, used on its railroad track adjacent to their works, supplied with suitable spark-arresters, but suffered them to become old, worn out, and in bad repair, so that coals of fire escaped from such engines, and, without the appellants' fault, communicated to and destroyed their works. In the second paragraph of their complaint, appellants alleged in substance that appellee negligently overloaded its train of cars, used on its railroad track adjacent to the appellants' works, so that the engines hauling such trains emitted sparks and coals of fire, which, without appellants' contributory fault, communicated fire to their works, and they were thereby consumed and destroyed. In the third paragraph of their complaint, appellants alleged in brief that, by the general negligence of the appellee in the construction, management, and use of its engines and trains of cars, sparks and coals of fire were suffered by appellee to escape from its locomotives, whereby appellants' starch and glucose works, without their fault, were set on fire, and were burned and destroyed. A schedule of appellants' property so burned and destroyed is set out in each of the paragraphs of complaint.

The cause was put at issue and tried by a jury, and a verdict was returned for the appellee, the defendant below. Over the appellants' motion for a new trial, it was adjudged by the court that appellants take nothing by their suit, and that appellee recover its costs.

The first error of which appellants complain here is the overruling of their demurrer to the second, third, and fourth paragraphs of appellee's answer. The answer was in five paragraphs, of which the first was a general denial of the complaint. The basis of each of the second, third, fourth, and fifth paragraphs of answer is substantially the same, namely: That the appellants' starch and glucose works were insured against loss or destruction by fire at the time they were burned, in divers named fire insurance companies, in the aggregate amount of $50,000, and that after their works had been so burned and destroyed, upon proofs of their loss and an adjustment thereof, the appellants had actually received from such insurance companies the aggregate sum of $35,224.09. Upon this basis of facts the appellee alleged, in the second paragraph of its answer, that the insurance money so received by the appellants was more than the value of the property so burned and destroyed, and more than the loss and damage sustained by them; that, by means of such payment of such insurance money, the several insurance companies became and were subrogated to all the rights of the appellants in and to the property so burned and destroyed, and to all their rights of action for the destruction of such property, and to all the pretended rights which the appellants were seekingto enforce in this action; and so the appellee said that appellants were not the real parties in interest. Upon the same basis of facts the appellee alleged, in its third paragraph of answer, that, after the burning and destruction of their starch and glucose works, the appellants and the several insurance companies mutually settled, appraised, and agreed upon the amount of such loss and damage complained of herein, at the sum of $68,375.65, which was a sum greater than the damage suffered; that thereupon the several insurance companies paid, as and for the sum insured upon such property, the aggregate sum of $35,224.09, whereby all rights of action as to such sum became and were transferred to such insurance companies, and so the appellee said that, as to such sum, appellants could not maintain this action. In its fourth paragraph of answer, upon the same basis of facts, the appellee alleged the appellants and the several insurance companies, after the burning and destruction of the starch and glucose works, agreed upon the value of such property and the amount of the loss, which latter was fixed at the highest limits, and more than the same really was, to-wit, at $68,375.65; and that, upon such insurance and damage, the insurance companies paid the appellants the amount insured, to-wit, $35,224.09, whereby all right of action for the causes stated in the complaint herein became and were transferred to the several insurance companies, and appellants thereby became divested of all right of action for the causes set forth in their complaint.

It will be observed that the appellee has not controverted, in either of these paragraphs of answer, any of the facts stated by the appellants in either paragraph of their complaint as constituting their cause of action. For the purposes of these paragraphs of answer, the appellee concedes that the appellants' property was, without any contributory fault on their part, burned and destroyed by and through the fault and negligence of the appellee, (1) in failing to supply its engines with suitable spark-arresters; (2) in so overloading its trains of cars that the engines hauling the same emitted sparks and coals of fire; and (3) in the...