Holcombe v. Richmond & D. R. Co.

• Decision Date: 11 March 1887
• Citation: 3 S.E. 755,78 Ga. 776
• Parties: HOLCOMBE, for Use, etc., v. RICHMOND & D. R. Co. RICHMOND & D. R. Co. v. HOLCOMBE, for Use, etc.
• Court: Georgia Supreme Court

3 S.E. 755

78 Ga. 776

HOLCOMBE, for Use, etc., v. RICHMOND & D. R. Co.

RICHMOND & D. R. Co. v. HOLCOMBE, for Use, etc.

Supreme Court of Georgia

March 11, 1887

Appeal from city court of Atlanta; VAN EPPS, Judge.

Hillyer & Bro., for plaintiff.

Hopkins & Glenn, for defendant.

BLANDFORD J.

The original action was brought by the Hamburg-Bremen Fire Insurance Company against the defendant, in which it was alleged that certain cord-wood, the property of William H Holcombe, upon the line of road of the defendant, was burned and destroyed by the defendant, by the carelessness of its agents and servants; that this fire insurance company had insured the same to Holcombe, and had paid the insurance money to him, $208.25; and it asked a judgment against this company for the amount it had paid out for insurance to the assured. To this declaration the defendant demurred, on the ground that there was no right of action in this insurance company against it; that there was no privity between them; that the defendant had destroyed no cord-wood belonging to the insurance company. The court sustained the demurrer, and dismissed the action; and to this the plaintiff excepted. That is the first ground of exception. Then the plaintiff moved to amend his declaration by adding William H. Holcombe, for the use of the Hamburg-Bremen Fire Insurance Company, and the court allowed this amendment; and to this the defendant excepted. The plaintiff thereupon proceeded to trial, and showed by his evidence that the insurance company had insured this wood and had paid a certain amount of money on the insurance of the same; that the wood had been destroyed by fire from one of the engines of the defendant company, and that this was negligence on their part; that an engine which was not properly arranged emitted sparks in all directions, setting the woods on fire as it passed; that the wood belonged to William H. Holcombe.

Holcombe testified that it was his wood; that he and a man named Stansell were in partnership under the name of William H Holcombe & Co.; that their arrangement was that he should furnish all the money for the wood purchased along the line of the road, and it was to be his wood until it was sold; and they were to divide the profits of the sale between them. Stansell testified to the same thing. While they were on the stand, the defendant, on cross-examination, brought out that on a former suit, brought by William H. Holcombe & Co., a firm composed of William H. Holcombe and Stansell, they had testified that this wood belonged to Holcombe & Co., and not Holcombe; and the court allowed testimony to show that this was the wood which was embraced in that action;...