Omaha & R. V. Ry. Co. v. Granite State Fire Ins. Co.
| Decision Date | 19 January 1898 |
| Citation | 73 N.W. 950,53 Neb. 514 |
| Parties | OMAHA & R. V. RY. CO. v. GRANITE STATE FIRE INS. CO. |
| Court | Nebraska Supreme Court |
Property partially insured was burned by the negligence of a railroad company. The insurer paid to the insured the amount of the policy, and took from him an assignment of his cause of action against the railroad, to the extent of the insurance paid. The insured then sued the railroad company for the remainder of his loss. The railroad company knew of the insurance company's rights, and pleaded the assignment, but abandoned the defense, and stipulated that judgment should go against it. Held, that the insurance company was not precluded by its knowledge of the pendency of that suit, nor by the settlement thereof, from afterwards maintaining an action against the railroad to recover the amount of the insurance by it paid.
Error to district court, Lancaster county; Hall, Judge.
Action by the Granite State Fire Insurance Company against the Omaha & Republican Valley Railway Company to recover for damages caused by defendant's negligence. There was judgment for plaintiff, and defendant brings error. Affirmed.J. M. Thurston, W. R. Kelly, and E. P. Smith, for plaintiff in error.
Chas. E. Magoon and Chas. O. Whedon, for defendant in error.
From admissions in the pleadings, and from the stipulation of facts whereon this case was tried, we gather the following facts: One Erickson was the owner of land along the line of the railroad owned by the plaintiff in error, on which there were certain buildings and personal property, of the value of $3,900, which were wholly destroyed by fire set out by the negligence of the railroad company. Erickson had insurance on the property, written by the defendant in error, to the amount of $1,000. The insurance company paid the loss, and Erickson assigned to it his cause of action against the railroad company, to the extent of $1,000. Erickson then brought suit against the railroad company, alleging the loss of his property through its negligence, its value as $3,900, and the insurance, and payment to him of $1,000 by the insurance company, and prayed damages for $2,900. The railroad company answered in that case, alleging the assignment to the insurance company, and another assignment to a stranger of the remainder, and that Erickson was therefore not the real party in interest. After issues were so joined a settlement was made between the railroad company and Erickson, whereby it was agreed that judgment should be entered in favor of Erickson for $1,750. A jury was impaneled, a verdict returned in accordance with the stipulation, and judgment entered thereon and paid. Pending this suit the railroad company had notified the insurance company of its pendency, and the insurance company had refused to intervene, notifying the railroad company at the same time of its intention to hold the railroad company under the assignment. After the judgment in favor of Erickson was entered and paid, this suit was begun by the insurance company to recover to the extent of $1,000 and interest. The railroad pleaded the foregoing facts. The case was submitted to the court without a jury on a stipulation of facts which left no issue to be determined from evidence. The court found for the insurance company, and entered judgment accordingly. The assignments of error relied on relate to the correctness of the conclusions of law reached by the district court.
Certain propositions contended for by the railroad company are undoubtedly correct, and any consideration of the case must proceed from the starting point thereby established. At common law, a chose in action, with certain exceptions not here material, was not assignable so as to permit the assignee to sue in his own name. The right of an insurance company to recover against a wrongdoer whose negligence has subjected the insurance company to a liability, whether the company's right be based on an equitable subrogation or an express assignment, is traced through the insured; that is, no cause of action can exist on behalf of the insurer unless it existed in favor of the insured. Any defense available against the insured is equally available against the insurer, except as to acts of the insured after payment of the loss, and with notice to the wrongdoer of the insurer's rights. That principle goes no further. A cause of action for tort, such as this, is indivisible without the consent of the defendant. A person injured cannot, by assignments of portions of his damages, subject the...
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