Lumberman's Mut. Ins. Co. v. Kansas City, Ft. S. & M. R. Co.

• Decision Date: 15 February 1899
• Court: Missouri Supreme Court
• Parties: LUMBERMAN'S MUT. INS. CO. v. KANSAS CITY, FT. S. & M. R. CO.

50 S.W. 281

149 Mo. 165

LUMBERMAN'S MUT. INS. CO. v. KANSAS CITY, FT. S. & M. R. CO.

Supreme Court of Missouri, Division No. 1.

February 15, 1899.

RAILROADS — FIRES SET BY LOCOMOTIVES — CONSTITUTIONAL LAW — INSURABLE INTEREST — INSURANCE POLICY — VALIDITY

1. A building on a lot adjoining a railroad right of way was set on fire by sparks from an engine. Property adjacent to such lot, but not abutting on the track, was destroyed by the spread of the fire. Held, that the railroad company was liable for the property so destroyed, under Rev. St. 1889, § 2615, providing that a railroad company shall be liable to every person whose property may be destroyed by fire communicated by engines in use on the road.

2. Rev. St. 1889, § 2615, providing that railroad companies shall be liable for property destroyed by fires set by their locomotives, is not unconstitutional as depriving railroad companies of property without due process of law.

3. Rev. St. 1889, § 2615, is not unconstitutional as denying railroad companies equal protection of the laws,

4. Under Rev. St. 1889, § 2615, providing that railroad companies shall be liable for property destroyed by fire, and that they shall have an insurable interest in property on the route of the railroad operated by them, such a company has an insurable interest in property destroyed by the spread of a fire set by a locomotive, though such property was not immediately adjoining the right of way.

5. Premiums on insurance policies in favor of a corporation in Missouri were paid in the first instance by the president of the corporation, in Chicago, to a company organized in the state of Illinois, but were ultimately paid by the corporation in Missouri. The insurance company had in no manner complied with the laws of Missouri authorizing foreign corporations to do business in the state. Held, that the contract of insurance was entered into in the state of Illinois, and was not affected by the laws of Missouri.

6. Where a resident of this state procures insurance in Illinois under a contract made in Illinois, and his property situated in this state is destroyed by fire set by a locomotive, the insurance company paying the loss is subrogated to the rights of the insured against the railroad company, though such company had not complied with the laws of this state authorizing it to do business therein.

Appeal from circuit court, Jackson county; J. H. Slover, Judge.

Action by the Lumberman's Mutual Insurance Company against the Kansas City, Ft. Scott & Memphis Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Wallace Pratt and I. P. Dana, for appellant. Fyke, Yates & Fyke, for respondent.

BRACE, P. J.

This is an appeal by the defendant railroad company from a judgment of the Jackson circuit court in favor of the plaintiff insurance company for the sum of $1,800. Plaintiff's cause of action is thus stated in the petition: "Plaintiff alleges: That the T. A. Miller Lumber Company is, and at all times herein stated was, a corporation duly organized and existing by law. That plaintiff, Lumberman's Mutual Insurance Company, is, and at all times herein stated was, a corporation duly organized and existing by virtue of the laws of the state of Illinois, and engaged in the business of insuring property owners against loss or damage by fire. That defendant, Kansas City, Ft. Scott & Memphis Railroad Company, is, and at all times hereinafter stated was, a corporation, and was engaged in operating a railroad through the town of Ashgrove, in the state of Missouri, and was using and operating thereon steam engines and locomotives. That at the time of the issuing of the policy of insurance hereinafter mentioned, and on the 6th day of April, 1894, the T. A. Miller Lumber Company was the owner of a certain stock of lumber, lath, shingles, sash, doors, and other stock such as is usually kept for sale in country lumber yards, also of a certain brick office building, and certain office furniture and fixtures therein contained, and also of certain lumber sheds, all situated on lots 2, 3, 4, 5, in Brok & Ralph Watkin's Railroad addition to the town of Ashgrove, Missouri. That on the 13th day of December, 1893, in consideration of a certain premium to it paid by said T. A. Miller Lumber Company, the Lumberman's Mutual Insurance Company issued to said T. A. Miller Lumber Company a certain policy of insurance, insuring it against loss or damage by fire to the property hereinbefore specified, for the period of one year from said date, to the amounts and as follows: $2,000.00 on said described stock of lumber; $250 on said described brick office building, and the furniture and fixtures therein contained; and $250 on said described lumber sheds. That on the 6th day of April, 1893, and while said policy of insurance was in full force and effect, the said stock of lumber, lath, shingles, sash, doors, and other stock in trade, being of the reasonable cash value of two thousand five hundred and seventeen and 42/100 dollars ($2,517.42), was wholly destroyed by fire, and said brick office building was damaged by fire to the amount of one hundred and fifty dollars ($150), and said lumber sheds, being at the time of the reasonable cash value of three hundred and ninety-five and 60/100 dollars ($395.60), were wholly destroyed by fire. That the fire which destroyed and damaged said property was communicated thereto by a locomotive engine being used by defendant upon its said railroad. That by reason of said fire said Lumberman's Mutual Insurance Company became liable to pay to said T. A. Miller Lumber Company the sum of twenty-four hundred dollars ($2,400), and by virtue of the terms of said policy of insurance, which sum said Lumberman's Mutual Insurance Company has long since paid. That upon the payment of said sum the said Lumberman's Mutual Insurance Company became and was subrogated to all the rights of the said T. A. Miller Lumber Company against said defendant for the recovery of said sum of money (twenty-four hundred dollars) by reason of the destruction of said property by fire communicated thereto by a locomotive engine of defendant as aforesaid. That, by reason of all the premises aforesaid, an action has accrued to plaintiffs against defendant, and plaintiffs allege that they have sustained damages in the sum of three thousand and thirteen and 42/100 dollars ($3,013.42), for which they ask judgment and for costs." To defeat a recovery upon this cause of action, defendant relied upon two of the defenses set out in the answer, as follows: First. "That the said Lumberman's Mutual Insurance Company seek to recover in this action under and by virtue of an act of the legislature of the state of Missouri approved March 31, 1887, which is embodied in the Revised Statutes of said state of 1889 as section 2615 thereof, which act and section, defendant avers, is illegal, unconstitutional, and void, in that it seeks to deprive the defendant of its property without due process of law, and is contrary to the provisions of section 30 of article 2 of the constitution of Missouri; that said act and section is illegal, unconstitutional and void, in that it denies the defendant the equal protection of the law, contrary to the provisions of section 1 of article 14 of the amendments of the constitution of the United States, and, further, in that it deprives defendant of its property without due process of law, contrary to the provisions of article 5 of the amendments to the constitution of the United States, and of article 6 of said constitution." Second. "That the plaintiff, Lumberman's Mutual Insurance Company, had not at the time it claims in said petition to have insured the property of said T. A. Miller Lumber Company, nor at the time it claims to have paid the loss thereon, nor at any time between those dates, nor has it since, complied with the provisions of the laws of Missouri, or any of them, in regard to the steps and action necessary and required therein to be taken by insurance companies organized under the laws of other states than Missouri before being allowed to do any insurance business or insure any property in said last-named state; that the pretended policy of insurance issued by said insurance company on the property of said lumber company, and referred to in said petition, was issued in violation of the laws of Missouri, and contrary and in opposition to the authority and policy of said laws and of said state; and that said insurance company is not entitled to plead or prove, or to take or deprive any benefit from or under, section 2615 of the Revised Statutes of Missouri for 1889, or any other statute or law of said state." The case was tried before the court without a jury, and the refusal of the trial court to sustain either of these defenses, and the admission of some evidence alleged to be "in variance with, and contrary to, the allegations of the petition," are the errors assigned for a reversal of the judgment.

1. On the trial the plaintiff, over the objections of the defendant, was permitted to introduce evidence tending to prove that the policy of insurance in question, dated the 13th day of December, 1893, was issued from the office of the insurance company in Chicago in renewal of a former policy issued from the same office, dated December 13, 1889, the application for which, signed by the treasurer of the lumber company, was made at the Chicago office. We do not find that this evidence is contrary to or inconsistent with the allegations of the petition, or that the court committed error in admitting it. It was simply evidence tending to show in detail how the ultimate fact charged in the petition was consummated.

2. By section 2615, Rev. St. 1889, it is provided that: "Each railroad corporation owning and operating a railroad in this state shall be responsible in damages to every person and corporation whose property may be injured or destroyed by fire...