Orient Ins. Co. of Hartford, Conn., v. Northern P. Ry. Co.

• Decision Date: 06 January 1905
• Citation: 78 P. 1036,31 Mont. 502
• Parties: ORIENT INS. CO. OF HARTFORD, CONN., v. NORTHERN PAC. RY. CO.
• Court: Montana Supreme Court

78 P. 1036

31 Mont. 502

ORIENT INS. CO. OF HARTFORD, CONN., v. NORTHERN PAC. RY. CO.

Supreme Court of Montana

January 6, 1905

Commissioners' opinion. Appeal from District Court, Custer County; C. H Loud, Judge.

Action by the Orient Insurance Company of Hartford, Conn., against the Northern Pacific Railway Company. Judgment for plaintiff. Defendant appeals. Affirmed.

Wm Wallace, Jr., and Chas. Donnelly, for appellant.

Van Ness & Redman and Sydney Sanner, for respondent.

CLAYBERG C. C.

Appeal by the Northern Pacific Railway Company from a judgment and order overruling its motion for a new trial.

It appears from the complaint that on June 30, 1900, the warehouse owned by the Custer County Wool Warehouse Company and situated upon the right of way of the railway company was ignited by sparks from one of defendant's engines and burned; that there was stored therein certain wool belonging to the firm of Hunter & Anderson, which was consumed with the building; and that this firm had their wool insured by the plaintiff company, which paid them the sum of $3,355.57, the value thereof. The complaint further alleges "that the fire by which said above referred to wool was destroyed as aforesaid was caused by sparks thrown out by a locomotive at said time and place owned, used, and operated by the defendant herein, which said sparks escaped from said locomotive, and fell in and upon said warehouse and its contents, and ignited the same, by reason of the defective construction and impaired condition of said locomotive, and the careless and negligent manner in which the same was then and there used and operated by defendant, and wholly by reason thereof, and without any fault on the part of said firm of Hunter & Anderson, or any member thereof, or plaintiff." Hunter & Anderson prior to the commencement of the suit assigned, transferred, and set over to plaintiff all claim, demand, and right of action growing out of the destruction of the wool, due to the alleged negligence of defendant. The railway company, after certain admissions and denials of the complaint, alleged as a separate and affirmative defense that the wool warehouse company was a joint-stock association and a joint partnership, and that Hunter & Anderson were joint owners and partners therein; that said "joint-stock association" leased the ground upon which the warehouse was built from the railway company, and, by the terms of such lease, assumed all risk of loss to the building and contents occasioned by fire and sparks from locomotives, engines, etc. For a second separate and affirmative defense, defendant alleges that the warehouse was carelessly and improperly built of highly inflammable material, which was well known to Hunter & Anderson when they placed their wool therein; that the plaintiff also well knew these facts when it insured said wool, and, in consideration of a higher premium, insured against this additional risk. Plaintiff denied all the allegations of new matter by replication. The case was tried before a jury, and resulted in a verdict for plaintiff in the sum of $3,355.57, and judgment was entered thereon. Defendant made a motion for a new trial, which was overruled.

The only errors assigned in the brief of appellant are as follows: (1) The denial of defendant's motion for a new trial. (2) The overruling of defendant's objections to a certain question asked by plaintiff's counsel of witness Buckner. (3) Giving of instruction No. 26. (4 and 5) The refusal of defendant's offered instructions 35 and 36. (6) The refusal to allow defendant to show that Hunter & Anderson owned 10 shares of stock in the warehouse company.

1. It is first urged by appellant in the argument that the destruction of the wool was proximately caused by an unprecedented wind blowing on the day of the fire, and would not have occurred, had there not been such wind. Appellant therefore claims that the injury was caused by the act of God, and not by its alleged negligence. We cannot consider this proposition, because the act of God is a defense to the action, and must be pleaded as such. We look in vain to appellant's answer for any allegations on which this defense may be based.

2. The next proposition argued is that of imputed contributory negligence on the part of Hunter & Anderson, plaintiff's assignees. It is claimed that the warehouse company was bailee of Hunter & Anderson, and was guilty of contributory negligence, and that such contributory negligence is imputable to Hunter & Anderson, which would prevent a recovery by them, and therefore by plaintiff. This point is based upon the giving by the court of paragraph 26 of the charge, and the refusal of the court to give charges 35 and 36 requested by defendant. By refusing to give the charges requested, and by giving paragraph 26, it is claimed that the court practically withdrew from the jury the consideration of contributory negligence. This was right, on the ground that contributory negligence was not put in issue by the pleadings; and it may have been equally right on other grounds, appearing to the satisfaction of the court. Although the court below may not have based its action on the ground of want of an issue raised by the pleadings, yet, if its action was correct, even though based upon other grounds, it must be affirmed. Under the decisions of this court contributory negligence on the part of plaintiff is a defense which, in order to be relied on, must be pleaded by defendant, in cases of this character. Ball v. Gussenhoven, 74 P. 871, 29 Mont. 321; Cummings v. Helena & Livingston S. & R. Co., 26 Mont. 434, 68 P. 852, and cases ci...