Kan. City, M. & O. Ry. Co. v. Shutt
| Decision Date | 12 May 1909 |
| Docket Number | Case Number: 16 |
| Citation | 24 Okla. 96,104 P. 51,1909 OK 110 |
| Parties | KANSAS CITY, M. & O. RY. CO. v. SHUTT. |
| Court | Oklahoma Supreme Court |
¶0 1. ASSIGNMENTS--Rights of Action--For Tort. A cause of action in favor of the owner of personalty, on account of the wrongful destruction of such property by fire, against the wrongdoer, is not assignable.
2. ASSIGNMENTS--Rights of Action--Conversion of Personalty. A cause of action in favor of the owner of personalty, against a party wrongfully taking and converting the same to his use, is assignable.
3. INSURANCE--Subrogation--Actions--Parties. Where an insurance company pays to the assured a loss occasioned by the wrong of a third party, and the value of the property destroyed by the fire exceeds the amount paid by the insurance company, the assured may bring an action in his own name against the wrongdoer, and recover the full amount of the loss.
4. ACTION--Liability--Divisibility. An action for a tort, or based upon a wrongful act, is single and indivisible, and gives rise to but one liability.
5. APPEAL AND ERROR--Presentation and Reservation of Grounds of Review--Questions Not Presented Below. The question of misjoinder of parties, or of causes of action, or of defect of parties, must be properly taken advantage of in apt time in the trial court, or the same will be treated as waived in the Supreme Court.
John A. Eaton and Dudley W. Eaton, for plaintiff in error, citing: Houston Direct Navigation Co. v. Insurance Co. of North America (Texas Civil Appeals), 31 S.W. 560-685; Swarthout v. Chicago & N.W. Ry. Co., 49 Wis. 625, 6 N.W. 314; Sims v. Mutual Fire Insurance Co., 101 Wis. 586, 77 N.W. 908; Fairgrieve v. Marine Ins. Co., 94 F. 686; St. Louis, A. & T. R. R. Co. v. Fire Association, 60 Ark. 325, 30 S.W. 350, 28 L. R. A. 83; Atchison, Topeka & Santa Fe Ry. Co. v. Home Ins. Co., 59 Kan. 432, 53 P. 459; C., B. &. Q. R. R. Co. v. German Ins. Co., 2 Kan. App. 395; Harris on Subrogation, sections 606 and 607, 27, American & English Ency. of Law, page 260, and cases cited; People's Natural Gas Co. v. Fidelity T. & T. Co., 150 Pa. 8.
W. M. Keith and Harris & Harris, for defendant in error, citing: 4 Cooley's Briefs on Law of Insurance 3893 et seq., and cases cited; Harding v. Townsend, 43 Vt. 536; Propeller v. Gilbert, 17 Howard U. S.) 152; In re Harris, 57 F. 247; Hessar v. Johnson (Okla.) 74 P. 320; Railroad v. Blaker, 68 Kan. 245; Hall v. Railroad, 13 Wallace, 367; Continental Ins. Co. v. H. M. Load & Sons, 93 Mich. 139, Anderson v. Miller, 96 Tenn. 35; Railroad Co. v. Commercial Union, etc., 139 U.S. 223.
Error from District Court, Woods County; J. L. Pancoast, Judge.
Action by Franklin Shutt against the Kansas City, Mexico & Orient Railway Company. Judgment for plaintiff. Defendant brings error. Affirmed.
On the 26th day of December, 1903, the defendant in error, Franklin Shutt, and the St. Paul Fire & Marine Insurance Company, as plaintiffs, began in the district court of Woods county, Okla. T., an action against the plaintiff in error, the Kansas City, Mexico & Orient Railway Company, as defendant, declaring on an action for damages on account of the alleged destruction of a barn, grain, and other property of said Franklin Shutt, by a fire negligently set out from a locomotive engine by the employes of said defendant. It is further alleged that on the 20th day of July, A. D. 1903, at the time said loss occurred, an insurance policy issued by said insurance company in favor of said Shutt was in force covering said property; that said insurance company adjusted said fire loss, and paid to said Shutt as a result of said adjustment the sum of $ 275.11 in settlement thereof; that said Shutt, in consideration of said sum of money paid in settlement of said fire loss, assigned and set over to said St. Paul Fire & Marine Insurance Company all right to recovery to the extent of such payment for the loss sustained thereby. On the 11th day of February, 1904, the defendant demurred to the petition on the grounds: (1) Defect of parties plaintiff; (2) misjoinder of causes of action; (3) facts stated did not constitute a cause of action. On April 25, 1904, said demurrer as to the insurance company was sustained, exceptions being saved, and overruled as to said Franklin Shutt, and exceptions saved. On the 13th day of May, 1904, the defendant answered by a general denial and pleading contributory negligence.
On October 27, 1904, the plaintiff Franklin Shutt filed an amended petition in his name, not joining the insurance company, the same as the original petition; with the exception that he declared for damages in the sum of $ 612.50, and also for an additional sum of $ 100 as attorney's fees. On November 21, 1904, defendant filed a motion to dismiss, on the ground of a departure from the original action, which does not appear from the record to have been acted upon. On June 1, 1905, the defendant filed its answer to the amended petition, consisting of a general denial and pleading contributory negligence. On the same day the plaintiff filed his reply. Trial was had, and verdict rendered in favor of the plaintiff for the sum of $ 231.74. On motion for a new trial the verdict was set aside.
By order of court the action was reinstated as to the St. Paul Fire & Marine Insurance Company, and a second amended petition was allowed to be filed, and on November 28, 1905, such petition was filed in behalf of said Franklin Shutt and the St. Paul Fire & Marine Insurance Company against said defendant, declaring for damages in the sum of $ 612.50 and $ 100 attorney's fees. On January 1, 1906, defendant filed its motion to require the plaintiffs to separately state and number the different causes of action stated in the second amended complaint.
On the 3d day of May, 1906, the third amended petition was filed, being styled "Franklin Shutt and the St. Paul Fire & Marine Insurance Company, a Corporation, Plaintiff, v. Kansas City, Mexico & Orient Railway Company, Defendant," a portion of which recites: "Now comes the above-named plaintiff Franklin Shutt, and by leave of court heretofore granted, files this his amended petition in the above-entitled action, and for cause of action against the above-named defendant alleges," etc., and closes with the prayer: "Wherefore said plaintiff demands judgment in his favor and against the said defendant for the sum of $ 612.50, together with $ 100 attorney fees, and the costs of this suit," etc. On May 15, 1906, the defendant filed its answer, consisting of a general denial and plea of contributory negligence, and that said cause of action had for value been transferred to said insurance company prior to the institution of the action, and that the plaintiff was not the real party in interest. On December 4, 1906, reply was filed, and the cause was tried on the issues joined before a jury on the 6th day of December, 1906, and verdict rendered in favor of the plaintiff for $ 571.61. A motion for a new trial was filed in due time, and overruled.
Exhibit C, attached to the original petition in this case, which purports to be a copy of the original, is in words and figures as follows:
On cross-examination of the plaintiff Franklin Shutt, the original petition, together with the exhibits thereto attached, was offered in evidence, to which the plaintiff objected as being incompetent, irrelevant, and immaterial, and not proper cross-examination, and not being the petition upon which the trial of the case was being had, and not binding upon the plaintiff in that trial, which objection was sustained, exceptions being saved. The witness then was asked if at any time he had executed an assignment of his rights, as against the defendant, to the St. Paul Fire & Marine Insurance Company, to which the plaintiff objected for the reason that it was incompetent, etc., and further that it was not the best evidence, which objection was overruled, and the witness answered that he had, so far as their money covered the damages. The witness stated that he did not know where the original assignment that he had executed was, and there was no predicate laid for the introduction of secondary evidence of its contents.
John A. Eaton and Dudley W. Eaton, for plaintiff in error
W. M. Keith and Harris & Harris, for defendant in error
¶1 In this case the alleged assignment to the insurance company purported to cover only that portion of the loss paid the assured (assignor) by the assurer.
¶2 Section 4224 (Code Civ. Proc. § 26) Wilson's Rev. & Ann. St. Okla. 1903, was borrowed from Kansas. Section 4103, (Code Civ. Proc. § 26) Gen. St. Kan. 1889 (Gen. St. Kan. 1868, c. 80, § 26). At the time said section was adopted by the Legislature of Oklahoma Territory, section 4516, Gen. St. Kan. 1889 (Code Civ. Proc. § 420), provided:
"In addition to the causes of action which survive at common law, causes of action for mesne profits, or for an injury to the person, or to real or personal estate, or for any deceit or fraud, shall also survive; and that the action may be brought, notwithstanding the death of the person entitled or liable to the same." (Gen. St. Kan. 1868, c. 80, § 420.)
¶3 See, also, section 4609 (Code Civ. Proc. § 411) Wilson's Rev. & Ann. St. 1903. Section 4226 (Code Civ. Proc. § 28) Wilson's Rev. & Ann. St. Okla. 1903, was also taken from Kansas. Section 4105 (Code Civ. Proc § 28) Gen. St. Kan. 1889 (Gen. St. Kan. 1868, c. 80, § 28).
¶4 In the case of Kansas Midland Ry. Co. v. Brehm, ...
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