Foster v. Missouri Pac. Ry. Co.

• Decision Date: 02 May 1910
• Parties: FOSTER v. MISSOURI PAC. RY. CO.
• Court: Missouri Court of Appeals

128 S.W. 36

143 Mo. App. 547

FOSTER v. MISSOURI PAC. RY. CO.

Springfield Court of Appeals. Missouri.

May 2, 1910.

1. REFERENCE (§ 7)—ACTIONS EX DELICTO— EXAMINATION OF LONG ACCOUNT.

The statute authorizing references does not apply to an action, ex delicto, though there may be a great number of items involved, since such an action does not involve the examination of a long account as contemplated by the statute.

2. INSURANCE (§ 606)—SUBROGATION OF INSURER.

An insurer which has paid a fire loss occasioned by the tort of another may be subrogated to the rights of insured, and sue the tortfeasor in its own name for reimbursement.

3. DAMAGES (§ 64)—REDUCTION OF LOSS BY INSURANCE.

The right of an insurer paying a fire loss to sue in its own name the tort-feasor causing the fire cannot be asserted by the wrongdoer in defense of an action against him by the owner of the property, for the primary liability of the wrongdoer is to the owner.

4. RAILROADS (§ 482)—FIRES—ACTIONS—EVIDENCE.

A plaintiff, relying on circumstantial evidence to show that a fire destroying his property was set by sparks emitted by a locomotive, must prove consistent circumstances tending in a substantial way to support his claim, and, in determining whether the circumstances so tend, the test is whether or not the circumstances make it probable and justify a reasonable inference that the fire was caused by the sparks.

5. RAILROADS (§ 484) — FIRES — EVIDENCE — SUFFICIENCY.

In an action against a railroad for fire set by sparks emitted by a locomotive, evidence held to require the submission of the case to the jury.

Appeal from Circuit Court, Barton County; B. G. Thurman, Judge.

Action by Jennie Foster against the Missouri Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Martin L. Clardy, Robert T. Railey, and Scott & Bowker, for appellant. W. O. Jackson, Thos. W. Martin, and Fyke & Snider, for respondent.

COX, J.

This case originated in the circuit court of Bates county and went to Barton county on change of venue. The petition charges that plaintiff was the owner of a two-story frame building, fixtures, cigars, etc., located near the track of defendant in the city of Butler, and that on the night of May 26, 1907, fire was communicated to the building by a locomotive engine used by defendant upon its said railroad, and that the building and property therein were destroyed, and asks judgment for $7,133.20. Trial was had by jury, verdict for plaintiff for $4,575, and defendant has appealed.

Attached to plaintiff's petition was an itemized statement, giving the name and value of each article destroyed, consisting of 11 pages of typewritten matter, and containing 558 separate and distinct items of articles burned that were in the building at the time of the fire. Defendant filed a motion asking the court to send the case to a referee, which was overruled, and it excepted. Defendant filed answer, in which it alleged that the plaintiff had the property insured, and that the insurance companies had paid to her more than the value of the property; hence she had been compensated for her loss, and, if there was any right of action in any one, it would be in the insurance company, and not in the plaintiff. This, on motion of plaintiff, was stricken out, and is assigned as error. Defendant also contends that error was committed by the court in overruling its demurrer to the testimony.

The evidence in this case tends to show, in substance, that the building was a two-story building, located about 28 feet from the track of defendant; that the fire when first discovered was in the roof of the building on the side next to the track; that there had been no fire in the building for several hours previous to the discovery of the fire; that prior to this time engines passing had emitted sparks and cinders which had fallen on the porch of this building, and at one time had set fire to leaves near the back porch of the building, which was the side farthest away from the railroad track; that on the night of the fire the wind was blowing from the southwest, which would carry sparks from a passing train in the direction of the building; that two trains came into Butler on the night of the fire and stopped, but how near the engines were to this building when they stopped does not appear. One witness testified that one of these trains was a freight train, and that the engine was laboring, and emitted sparks as it pulled in. The time that elapsed from the time sparks were seen to be emitted from the engine until the fire was discovered is not proven with any degree of certainty, but ranged from 45 minutes to an hour and 15 minutes. The evidence also tends to show that the fire did not spread rapidly.

As to the motion to refer this case to a referee, it is sufficient to say that the statute authorizing the court to refer cases has no application to an action, ex delicto, even though in that case there may be a great number of items to be considered by the jury. Cases of this kind are not construed to be the examination of a long account as contemplated by the statute. Ittner et al. v. St. Louis Exposition & Music Hall Ass'n, 97 Mo. 561, 11 S. W. 58; Willard v. Doran & Wright Co., 48 Hun, 402, 1 N. Y. Supp. 345, 588; Untemeyer v. Beihauer, 105 N. Y. 521, 11 N. E. 847.

Defendant contends that the court erred in...