Cushman & Rankin Co. v. Boston & M. R. R.

• Citation: 82 Vt. 390,73 A. 1073
• Court: United States State Supreme Court of Vermont
• Decision Date: 09 October 1909
• Parties: CUSHMAN & RANKIN CO. v. BOSTON & M. R. R.

73 A. 1073

82 Vt. 390

CUSHMAN & RANKIN CO.

v. BOSTON & M. R. R.

Supreme Court of Vermont. Caledonia.

Oct. 9, 1909.

Exceptions from Caledonia County Court; Wm. M. Taylor, Judge.

Action by the Cushman & Rankin Company against the Boston & Maine Railroad. A demurrer to the replication was overruled, and defendant excepted. Affirmed, and cause remanded.

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

Young & Young, for appellant.

Hawe & Hovey, for appellee.

WATSON, J. The exceptions do not show the particular objections made below and there passed upon, by reason whereof it is urged that there are no questions before this court, referring to Jenness v. Simpson, 81 Vt. 109, 69 Atl. 646. In State v. Schoolcraft, 72 Vt. 223, 47 Atl. 786, the exceptions stated the respects in which it was claimed in the court below the defects existed. In this court those points were not presented in argument, but new ones not before raised were urged. It was held that the new points could not be considered. In Jenness v. Simpson the demurrer was special, assigning two causes. The exceptions did not show that any other ground was relied upon below. In this court the demurrant undertook to take advantage of a third claimed defect reachable by the demurrer as general in form. It was considered that the assignments in the demurrer showed the questions raised below, nothing appearing otherwise in the exceptions, and it was held that, as the record did not show the third claimed defect to have been there raised and passed upon, it was not before us. When the demurrer is general and the exceptions do not show the particular point or points raised below, the general practice in this court has been to hear any question presented within reach of the demurrer.

This is an action on the case to recover for loss sustained by the destruction of the plaintiff's buildings and contents by fire alleged to have originated by fire communicated by defendant's locomotive engines. Pleas the general issue, and special that, after the cause of action accrued and before the commencement of this suit, the defendant received of the plaintiff a release executed by him under seal, releasing and discharging it from all liability for loss, etc., sustained by him on account of or in consequence of the destruction of his said property. In reply, it is said that before and at the time of the fire the said buildings, etc., and leather board stock, in the declaration mentioned, were insured to the plaintiff against all direct loss or damage by fire (except as in the policies stated) by two contracts of insurance, one on the buildings, etc., and the other on the leather board stock by the Union Mutual Fire Insurance Company, a corporation organized and doing business under the laws of this state, and that, after said fire and before the execution of the release pleaded, the said insurance company was forced and obliged to and did necessarily pay to the plaintiff the sum of $1,500 in satisfaction of its liability under said contracts of insurance by reason of the plaintiff's loss caused by said fire, and that the said insurance company, upon making said payment, to the extent thereof became subrogated to all right of recovery by the plaintiff for the loss aforesaid, of all which the defendant had knowledge at and before the time of the execution of said release; that the insurance company has never received any payment or compensation for its loss occasioned as aforesaid, and this suit is instituted by it and for its benefit, for the purpose of recovering the amount of its said payment. The case is here on the question of the sufficiency of the replication.

It is urged that the owners of the property destroyed and the insurance company were jointly interested in the cause of action against the defendant, and both should be parties to the suit. But we think it clear that the action is properly brought. On the record the defendant is the wrongdoer, and is primarily liable for the damages. The fire policies are contracts of indemnity, and, to the extent that the insurer was obliged to pay on account of the loss, it was put in the place of the insured, and may recover of the defendant in the name of the insured. The right of the insurer against the defendant does not rest upon any relation of contract or privity between them. The legal title is in the plaintiff, and, though after payment the insurer had the right to bring suit in the plaintiff's name, its rights are to be worked out through the cause of action which the plaintiff has against the defendant, and can be enforced in his rights only. In Mason v. Sainsbury, 3 Doug. 60, 26 E. C. L. 50, the action was on the riot act to recover damages sustained by the demolition of a house in the riots of 1780. The loss had been paid by the insurers, for whose benefit the action was brought in the name of the insured by his consent. The defendant said it was impossible that a plaintiff could recover in respect of that for which he had already received a satisfaction. Lord Mansfield said: "The question, then, comes to this: Can the owner, having insured, sue the hundred? Who is first liable? If the hundred, it makes no difference. If the insurer, then it is a satisfaction, and the hundred is not liable. But the contrary is evident from the nature of the contract...