Firemen's Ins. Co. v. Bremner

• Court: U.S. Court of Appeals — Eighth Circuit
• Writing for the Court: STONE and VAN VALKENBURGH, Circuit , and PHILLIPS
• Citation: Firemen's Ins. Co. v. Bremner, 25 F.2d 75 (8th Cir. 1928)
• Decision Date: 07 March 1928
• Docket Number: No. 7860.,7860.
• Parties: FIREMEN'S INS. CO. OF NEWARK, N. J., v. BREMNER.

25 F.2d 75 (1928)

FIREMEN'S INS. CO. OF NEWARK, N. J., v. BREMNER.

No. 7860.

Circuit Court of Appeals, Eighth Circuit.

March 7, 1928.

George E. Hise, of Des Moines, Iowa, and Sidney R. Dyer, John W. Jordan, and Walter R. Dyer, all of Boone, Iowa, for plaintiff in error.

Clifford V. Cox, Donald Evans, and William F. Riley, all of Des Moines, Iowa, for defendant in error.

Before STONE and VAN VALKENBURGH, Circuit Judges, and PHILLIPS, District Judge.

STONE, Circuit Judge.

This is an action at law by an insurer who had paid a fire loss caused by the defendant. Defendant is the receiver of the Minneapolis & St. Louis Railroad Company. At one point, a part of the railway line parallels that of the Ft. Dodge, Des Moines & Southern Railroad. Company. A fire, negligently started by the employees of the receiver, burned some of the property of the Ft. Dodge, including seven box cars. The plaintiff carried an insurance policy covering the box cars, and paid the Ft. Dodge $2,800 thereunder because of the above loss. During the January term, 1926, of the district court of Boone county, Iowa, separate suits were filed therein against the receiver. One of these was the present action by the insurance company; the other was by the Ft. Dodge. That of the Ft. Dodge claimed a loss on account of the above fire of $5,229.54, gave credit thereon for the $2,800 received on account of the above insurance, and sought recovery for the balance. In the Ft. Dodge suit, the receiver answered by general denial only. The action was tried, resulted in recovery, and the judgment was paid and satisfied. Thereafter the receiver amended his answer in the present case, setting forth the above judgment and satisfaction as constituting a full and complete adjudication, satisfaction, and discharge of the claim of this plaintiff and pleaded an estoppel on account thereof. The plaintiff herein filed its motion to strike the above portion of the amended answer, which was denied. The case went to trial, the above facts concerning the Ft. Dodge suit, judgment, and satisfaction were introduced, and a verdict for the defendant was directed and entered on account thereof. From the judgment entered thereon, this writ of error is sued out.

The sole question presented here is whether the judgment in the Ft. Dodge Case concluded the plaintiff in this action. We think the trial court was right in holding that it did. Such holding seems to be required by Chicago, St. Louis & N. O. R. R. Co. v. Pullman Southern Car Co., 139 U. S. 79, 11 S. Ct. 490, 35 L. Ed. 97, St. Louis, I. M. & S. Ry. Co. v. Commercial Union Insurance Co., 139 U. S. 223, 11 S. Ct. 554, 35 L. Ed. 154, Phœnix Insurance Co. v. Erie & Western Transportation Co., 117 U. S. 312, 6 S. Ct. 750, 29 L. Ed. 873, and two cases in this court, to wit, Fairgrieve v. Marine Ins. Co., 94...