Foster v. The Missouri Pacific Railway Company
| Decision Date | 02 May 1910 |
| Parties | JENNIE FOSTER, Respondent, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Barton Circuit Court.--Hon. B. G. Thurman, Judge.
AFFIRMED.
Judgment affirmed.
Robert T. Railey and Scott & Bowker for appellant.
(1) In a case involving a long account on either side, such cases should be referred. R. S. 1899, sec. 698; Smith v Healy, 41 Mo. 611; Goetz v. Piel, 26 Mo.App 634; McCormick v. St. Louis, 166 Mo. 315; Drug Co. v. Graddy, 57 Mo.App. 41; Ittner v Ass'n, 97 Mo. 561; Roscoe v. Kinnealy, 8 Mo.App. 76. (2) Where property is insured and is destroyed through the negligence of another and the insurance paid exceeds the value of the property destroyed, the right of action against the party who causes the loss is in the insurer and the insured has no right of action therefor. Insurance Co. v. Railroad, 74 Mo.App. 107; Insurance Co. v. Railroad, 149 Mo. 165; Allen v. Railroad, 68 N.W. 873; Marvin Ins. Co. v. Railroad, 41 F. 643. (3) There was not sufficient evidence in this case to go to the jury upon the question of a locomotive engine of the appellant having set out the fire. Gibbs v. Railroad, 104 Mo.App. 276; Peffer v. Railroad, 98 Mo.App. 291; Bates Co. Bank v. Railroad, 98 Mo.App. 330; Manning v. Railroad, 119 S.W. 464.
W. O. Jackson, Thos. W. Martin and Fyke & Snider for respondent.
(1) The court committed no error in overruling appellant's motion to refer. Fitzgerald v. Hayward, 50 Mo. 516; Vicar v. Stone, 47 Mo.App. 530; Ice Co. v. Tamm, 138 Mo. 385; Kenneth Inv. Co. v. Bank, 96 Mo.App. 125; Thornton v. Life Assn., 7 Mo.App. 544; Freeman v. Insurance Co., 13 Abb. Pr. 125. (2) The action was well brought in the name of the owner of the property. The legal title to the property was in her. The fact that she had insurance was wholly immaterial. The appellant was no party to the insurance contract and could derive no benefit therefrom. Carroll v. Railroad, 88 Mo. 239; Dillon v. Hunt, 105 Mo. 154; Matthews v. Railroad, 121 Mo. 298, 142 Mo. 645; Conner v. Railroad, 181 Mo. 397; Erhart v. Railroad, 136 Mo.App. 617; Muldron v. Railroad, 62 Mo.App. 431. (3) The evidence was amply sufficient to justify the court in submitting the question of the origin of the fire to the jury, and amply sufficient to support the verdict. Kenney v. Railroad, 70 Mo. 243; Torpey v. Railroad, 64 Mo.App. 382; Fields v. Railroad, 113 Mo.App. 647; Lead Co. v. Railroad, 123 Mo.App. 397; Tapley v. Railroad, 129 Mo.App. 88; Wright v. Railroad, 107 Mo.App. 209.
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 $ 7133.20. Trial was had by jury, verdict for plaintiff for $ 4575, and defendant has appealed.
Attached to plaintiff's petition was an itemized statement, giving the name and value of each article destroyed, consisting of eleven 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 anyone 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 twenty-eight 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, and 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 forty-five minutes to an hour and fifteen 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 and Music Hall Ass'n, 97 Mo. 561; 11 S.W. 58; Willard v. Doran & Wright Co., 1 N.Y.S. 345; Untermeyer v. Bernhauer, 11 N.E. 847.]
Defendant contends that the court erred in striking out that part of the answer which alleged as a defense that plaintiff had been paid more than her property was worth by the insurance companies.
An insurance company which has paid a fire loss occasioned by the tort of another may be subrogated to the rights of the insured, and may maintain an action in its own name against the tortfeasor for reimbursement. [Insurance Co. v. Railroad, 149 Mo. 165; 50 S.W. 281; Insurance Co. v. Railroad, 74 Mo.App. 106; Insurance Co. v. Railroad, 123 Mo.App. 513, 100 S.W. 569.]
But the right of the insurance company is not one that the wrongdoer can assert to defend an action against him by the property-owner. With the equities existing between the insurance company and the owner of the property he has no concern. His primary liability is to the owner whose property he has destroyed, and unless the insurance company appears and asserts its rights the tortfeasor cannot assert them for it. [Dillon v. Hunt, 105 Mo. 154, 16 S.W. 516; Mathews v. The Railroad, 121 Mo. 298, 24 S.W. 591; Matthews v. Mo. Pacific Ry. Co., 142 Mo. 645, 44 S.W. 802.]
The plaintiff depends in this case for proof of the fact that her property was burned by fire escaping from an engine on defendant's road upon circumstantial evidence. We have spent considerable time in going over cases in this State where a demurrer to the testimony in similar cases had been passed upon, many of which we find much weaker than this case in every respect, except as to the time that elapsed between the passing of the train and the discovery of the fire. As to the question of time the nearest approach which we have found to it is in the case of Tapley v. The Railroad, 129 Mo.App. 88, 107 S.W. 470, where the time which elapsed was thirty minutes. In every other respect the facts relied upon in that case were not as strong as they were in this case. In fact, outside of...
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