Day v. Boston & M.R.R.
| Decision Date | 08 January 1917 |
| Citation | 225 Mass. 538,114 N.E. 725 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | DAY v. BOSTON & M. R. R. |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Middlesex County; Loranus E. Hitchcock, Judge.
Action by Eva J. Day against the Boston & Maine Railroad. Judgment for plaintiff, and defendant brings exceptions. Exceptions overruled.
Clarence A. Barnes and Raymond P. Dellinger, both of Boston, for plaintiff.
Trull & Wier and J. M. O'Donoghue, all of Lowell, for defendant.
This is an action under St. 1906, c. 463, pt. 2, § 247, which makes a railroad company liable for damage to property by fire from its locomotive engines and gives to the corporation the benefit of any insurance effected upon the property by the owner, less the cost of premium and expense of recovery.
‘The money received as insurance shall be deducted from the damages, if recovered before they are assessed; and if not so recovered, the policy of insurance shall be assigned to the corporationwhich is held liable in damages, and it may maintain an action thereon.’
The buildings of the plaintiff were destroyed by fire from one of the defendant's locomotives. All of these buildings, with the exception of a tool house, were insured against fire in the sum of $1,900. The plaintiff and the insurer could not agree on the amount of the loss sustained, and under the terms of the policy the question was submitted to arbitrators, who found the amount of loss to be $1,830, which sum was paid to the plaintiff. At the trial the award of the arbitrators was in evidence, the court limiting its use to showing the amount of insurance secured by the plaintiff, the defendant offering the award as evidence of the value of the buildings destroyed. The defendant also asked the judge to rule that the value of the insured buildings destroyed, and the damage by fire, were determined by the award, and these facts were res judicata. The offer and the request of the defendant were refused.
The jury found the damages to the plaintiff's property was $2,600; that the amount of insurance received by the plaintiff, less premiums paid and expenses, was $1,507.50. They returned a verdict for the plaintiff for $1,092.50.
The judge was right in denying the defendant's offer of proof and in refusing its requests for rulings.
The plaintiff's rights against the insurance company were under the contract of insurance. Her rights against the defendant were by force of the statute. In the proceedings before the arbitrators to recover the loss under the policy, the defendant was not a party and it was not bound by their decision. While the award is conclusive against the plaintiff and the insurer and their privies, it could not be used in the action against the railroad company by either the plaintiff or defendant, for the purpose of establishing...
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...moneys from insurance companies. Adelphia Hotel Co. v. Providence Stock Co., 277 F. 909; Brooks v. Menaugh, 284 S.W. 805; Day v. Railroad, 114 N.E. 725, 225 Mass. 538; Multnomah Co. v. Williamette T. Co., 49 Ore. 222; C. J. 180, 182. (5) The court erred in permitting the defendant to show t......
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