Old Colony Ins. Co. v. Kansas Public Service Co.

• Decision Date: 24 January 1942
• Docket Number: 35353.
• Citation: 121 P.2d 193,154 Kan. 643
• Parties: OLD COLONY INS. CO. v. KANSAS PUBLIC SERVICE CO.
• Court: Kansas Supreme Court

121 P.2d 193

154 Kan. 643

OLD COLONY INS. CO. v. KANSAS PUBLIC SERVICE CO.

No. 35353.

Supreme Court of Kansas

January 24, 1942

Syllabus by the Court.

A husband's homestead interest in residence building, title to which was in his wife, was not "unconditional and sole ownership", required by policy insuring him against damage to building by fire, so that insurer was not liable to him on policy.

The doctrine of "subrogation" is not invoked in favor of a mere volunteer, but payment, for which subrogation is claimed, must have been made under compulsion or to protect some interest of party making it and in discharge of an existing liability.

A subrogation receipt for amount paid by insurance company to insured for damage by fire to insured building, owned by insured's wife and occupied by spouses as homestead because of gas company's negligence in permitting leak in service pipe, constituted nothing more than attempted assignment of husband's right of action, by virtue of his homestead interest, to recover damages for tort, so that insurance company was not "real party in interest" and could not maintain action in its own name against gas company for damages. Gen.St. 1935, 60-401.

A right of action for damages resulting from tort is not assignable.

The right of "subrogation" is founded on facts and circumstances of each particular case and principles of natural justice.

1. A husband is not the unconditional and sole owner of property the title to which is in his wife, even though the property is occupied as a homestead; nor does such a title satisfy a provision avoiding an insurance policy if his interest is any other than unconditional and sole ownership. The wife's property should be insured in her own name where sole and unconditional ownership is essential to the validity of the policy.

2. An insurance company may not be subrogated to a recovery for a loss against which it did not insure.

3. The doctrine of subrogation is not invoked in favor of a mere volunteer. Payment for which subrogation is claimed must have been under compulsion or for the protection of some interest of the party making it and in discharge of an existing liability.

4. A right of action for damages, resulting from a tort, is not assignable, and such assignment confers on the assignee no right of action maintainable in its own name against the tort feasor.

Appeal from Douglas County, District Court; Hugh Means, Judge.

Action by the Old Colony Insurance Company against the Kansas Public Service Company for damages to a building insured by plaintiff. From a judgment sustaining a general demurrer to plaintiff's evidence, plaintiff appeals

Edw. T Riling and John J. Riling, both of Lawrence, for appellant.

C. C Stewart and O. K. Petefish, both of Lawrence, for appellee.

WEDELL Justice.

This was an action by an insurance company against a gas distributing company to recover damages to a residence building which it claimed was damaged by reason of the negligence of the gas distributing company in permitting a leak to exist in its service pipe just outside the building. It was claimed the gas entered the building, was ignited, and that the explosion resulted. The trial court sustained a general demurrer to plaintiff's evidence. From that ruling the plaintiff insurance company appeals.

The action was not brought by or on behalf of the party who owned the damaged building. It was brought by the insurance company in its own name and for its own benefit. The theory upon which appellant brought the action, as disclosed by its amended petition, was: It had issued an insurance policy to one, M. S. Winter, who was the owner of the residence in question at the time the policy was issued and at the time of the fire; the property was damaged by reason of the negligence of appellee, the gas distributing company appellant settled the loss with M. S. Winter and obtained from him a subrogation receipt; appellant was subrogated to all rights which the owner of the building had against the wrongdoer, the gas company; the subrogation receipt authorized the insurance company to sue the alleged wrongdoer in the name of M. S. Winter, or otherwise.

In view of the conclusion we have reached it will be unnecessary to narrate the evidence pertaining to the alleged negligence of the defendant gas distributing company or that part of the record which pertains to the establishment of a proper measure of damages. We shall narrate only such portion of the record as relates to appellant's right to maintain the instant action in its own name. The material portion of plaintiff's evidence in that respect was in substance as follows: The contract of insurance was issued and delivered solely and alone to M. S. Winter, as the insured; the only interest of M. S. Winter which the policy insured was an interest of unconditional and sole ownership; the pertinent portion of the policy provided: "This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void *** if the interest of the insured be other than unconditional and sole ownership ***"; the policy at no time contained any provision which in any manner waived or modified the above quoted provision; the residence constituted the homestead of M. S. Winter and his wife; the title to the property at the time the policy was issued and delivered and at the time of the fire was not in M. S. Winter, the insured, but in his wife; the insurance company settled with M. S. Winter, and paid him for the loss; it obtained a subrogation receipt from him; the pertinent portion thereof reads:

"In consideration of and to the extent of said payment the undersigned (M. S. Winter) hereby subrogates said insurance company, to all of the rights, claims and interest which the undersigned may have against any person or corporation liable for the loss mentioned above, and authorizes the said insurance company to sue, compromise or settle in the undersigned's name or otherwise all such claims and to execute and sign releases and acquittances and endorse checks or drafts given in settlement of such claims

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