Illinois Central Ry. Co. v. Hicklin

• Decision Date: 27 January 1909
• Parties: Illinois Central Ry. Co. v. Hicklin
• Court: Kentucky Court of Appeals

131 Ky. 624

Illinois Central Ry. Co. v. Hicklin

Court of Appeals of Kentucky.

January 27, 1909.

Appeal from Crittenden Circuit Court.

J. F. GORDON, Circuit Judge.

Judgment for plaintiff. Defendant appeals. — Affirmed.

BLUE & NUNN and TRABUE, DOOLAN & COX for appellant.

CARL HENDERSON and A. C. MOORE for appellees.

OPINION OF THE COURT BY WM. ROGERS CLAY, COMMISSIONER — Affirming.

Charging that their house in Marion, Crittenden county, Kentucky, had been destroyed by the negligence of the Illinois Central Railroad Company in permitting sparks to escape from its engine and alight thereon, plaintiffs, Mary J. Hicklin and others, instituted this action against the railroad company to recover damages in the sum of $1,100. The jury returned a verdict in favor of plaintiffs in the sum of $650. From the judgment based thereon, this appeal is prosecuted.

A reversal is asked upon two grounds. First, the admission of incompetent evidence; second, error of the court in sustaining a demurrer to the second paragraph of defendant's answer.

1. The incompetent evidence complained of was to the effect that other trains of appellant, at other times than on the night of the fire, had permitted live sparks and cinders to escape from their locomotives, and had set fire to logs and grass along the right of way. The admissibility of such evidence is no longer an open question. In a long line of decisions this court has held in favor of its admissibility. Chesapeake & Ohio R. R. Co. v. Richardson, 99 S. W. 642, 30 Ky. Law Rep. 786; C., N. O. & T. P. Ry. Co. v. Falconer, 97 S. W. 727, 30 Ky. Law Rep. 152; Kentucky Central R. R. Co. v. Barrow, 89 Ky. 638, 20 S. W. 165, 6 Ky. Law Rep. 250; Illinois Central R. R. Co. v. Scheible, 72 S. W. 325, 24 Ky. Law Rep. 1708.

2. Appellant's main ground of reversal is the action of the court in sustaining a demurrer to the second paragraph of its answer, which is as follows: "For further answer defendant says that plaintiff's house was insured in the Citizens' Fire Insurance Company of Missouri for the sum of $700, as it is informed, which was the full value of said house, and that plaintiffs have received pay from said insurance company in the sum of $700 on account of said fire, which sum fully repaid the plaintiffs for any loss they sustained by reason of said fire, and the defendant now says that if said fire was caused by any negligence or carelessness upon the part of defendant, for which it is liable, which it denies, said Citizens' Fire Insurance Company is entitled to recover for same, instead of these plaintiffs, and it pleads and relies upon the said payment to the plaintiffs by said insurance company in bar of plaintiff's right to recover herein." It is the contention of counsel for appellant that, upon the payment of the loss by the insurance company, it was immediately subrogated to the rights of the property holders and became the real party in interest, and that under the provisions of section 18 of the Civil Code of Practice, requiring every action to be prosecuted in the name of the real party in interest, except as provided in section 21, the insurance company, alone, was entitled to recover from the railroad company.

The law is well settled that a wrongdoer has no right to the benefits of the insurance, and can not rely either in full or pro tanto on the defense that the owner of the property had been previously paid by the insurance company. Payment to the owner by an insurance company of the amount of his loss does not bar the right against another originally liable for the loss. The insurance company does not stand in the relation of a joint tort-feasor with the party through whose negligence the property is destroyed. Anderson, etc., v. Miller, etc., 96 Tenn. 35, 33 S. W. 615, 31 L. R. A. 604, 54 Am. St. Rep. 812; Perrott v. Shearer, 17 Mich. 48; Hart v. Western R. Corporation, 13 Metc. (Mass.) 99, 46 Am. Dec. 719; Matthews v. St. Louis, etc., 121 Mo. 298, 24 S. W. 591, 25 L. R. A. 161; Am. & Eng. Eucy. of Law (1st Ed.), vol. 24, p. 304; Rockenham Mutual Fire Insurance Co. v. Bosher, 39 Me. 253, 63 Am. Dec. 618. In the case of Anderson, etc., v. Miller, etc., supra, the rule is thus stated: "The question of who will be entitled to the proceeds of the recovery, the insured or the insurer, is a matter between them, and constitutes no defense to an action for damages caused by the wrong, which in any event must be brought in the name of the owner and insured, although it might be brought for the use of the insurer." Chief Justice Cooley, in discussing the same question, in the case of Perrott v. Shearer, supra, said: "He (the defendant) is found to be the wrongdoer, and he can not relieve himself from responsibility to account for the full valuation (of the goods), except by restoring them. He has no concern with any contract the plaintiff may have with any other party in regard to the goods, and his rights or liabilities can neither be increased or diminished by the fact that such a contract exists. He has no equities as against the plaintiff, which can entitle him, under any circumstances, to an assignment of the plaintiff's policies of insurance. The accidental destruction of the goods in his hands was one of the risks he ran when the trespass was committed, and we do not see how the law can relieve him from the consequences. If...