Equitable Fire & Marine Ins. Co. v. St. Louis & S. F. R. Co.

• Decision Date: 07 December 1908
• Citation: 134 Mo. App. 48,114 S.W. 546
• Court: Missouri Court of Appeals
• Parties: EQUITABLE FIRE & MARINE INS. CO. et al. v. ST. LOUIS & S. F. R. CO.

114 S.W. 546

134 Mo. App. 48

EQUITABLE FIRE & MARINE INS. CO. et al. v. ST. LOUIS & S. F. R. CO.

Kansas City Court of Appeals. Missouri.

December 7, 1908.

1. RAILROADS (§ 35)—FIRES—BUILDINGS ON RIGHT OF WAY—RELEASE OF LIABILITY.

A release executed to a railroad company on its granting permission to erect a building on its right of way from liability for fire set by a locomotive to any building then on or which might thereafter be placed on the premises or personal property, or communicated to such building, and thence to other property upon or outside of the premises, applies to buildings or parts of a building both on and off the right of way if a fire set by a locomotive to a building on the right of way is thence communicated to a building or part of a building not on the right of way.

2. RELEASE (§ 27)— CONSTRUCTION—FIRES— BUILDINGS ON RIGHT OF WAY.

Under Rev. St. 1899, § 889 (Ann. St. 1906, p. 828), making all joint contracts joint and several, a release executed to a railroad company of liability for fire on its granting permission to erect a building on its right of way, though in the name of a partnership, is a release

from the partner who owned the property so as to bar a claim by him.

3. ESTOPPEL (§ 74)—EQUITABLE ESTOPPEL.

A partner who was the active agent for the firm in securing permission from a railroad company to erect a building on its right of way and in giving a release to the railroad company from liability for fire, and who executed such release for the firm, is estopped to recover for loss by fire against the railroad company on the ground that he was the owner of the property, and had not released his claim.

4. WORDS AND PHRASES—"PROPERTY."

"Property" is nomen generalissimum, and extends to every species of valuable right and interest, including real and personal property, easements, franchises, and other corporeal hereditaments.

Appeal from Circuit Court, Jasper County; Hugh Dabbs, Judge.

Action by the Equitable Fire & Marine Insurance Company and others against the St. Louis & San Francisco Railroad Company. Judgment in favor of a part of the plaintiffs, and defendant appeals. Reversed.

W. F. Evans and Woodruff & Mann, for appellant. Fyke & Snider and Clay & Sheppard, for respondents.

ELLISON, J.

Seven insurance companies and R. D. Davis instituted this action against the defendant railway company to recover from it the several sums of money they had been compelled to pay on property destroyed by fire which was caused through the negligence of defendant, which property was insured by such companies. The judgment in the circuit court was in favor of the defendant as to all the plaintiffs save two companies and Davis. As to them the judgment was against defendant. The two companies thus obtaining judgment were the German Alliance and the Orient. The losing companies acquiesced in the judgment against their claims, but the defendant appealed as to the claims of Davis and the two companies.

It appears that Davis owned a warehouse, or, as has been stated, two warehouses, one contiguous to and connected with the other. One of these was partly located on defendant's right of way; that is, the front or south end was on a space of about 20 by 40 feet of the right of way. It extended back north on ground adjoining the right of way, and adjoining and connected with that portion not on the right of way was the second warehouse. There was grain and other personal property in these buildings. The buildings and personal property were destroyed by fire escaping from one of defendant's engines on a nearby track. The several insurance companies paid the losses to R. D. Davis, and then they brought the present action, whereby they seek, by right of subrogation to Davis' claim against defendant for negligently burning his property, to recover what they have paid out to him under their policies. Insurance Co. v. Railway Co., 149 Mo. 165, 50 S. W. 281; Insurance Co. v. Wabash Ry. Co., 74 Mo. App. 106. Since the claim of the insurance companies is dependent upon that of Davis against defendant and must be worked out through his claim, the defendant bases its defense on a release which it contends Davis made to it. This release is contained in defendant's written license permitting the building aforesaid to partly stand on its right of way. The license is granted by defendant to the Joplin Hay Company, a partnership composed of said R. D. Davis and his brother, E. M. Davis. R. D. Davis executed the release for the company by...