Over v. Lake Erie & W.R. Co.

• Decision Date: 21 September 1894
• Parties: OVER et al. v. LAKE ERIE & W.R. CO. et al. (No. 9,036.)
• Court: United States Circuit Court, District of Indiana

63 F. 34

OVER et al. v. LAKE ERIE & W.R. CO. et al. (No. 9,036.)

United States Circuit Court, D. Indiana.

September 21, 1894

Ryan &amp Thompson, Bates & Harding, and R. W. Barger, for plaintiff.

Miller Winter & Elam, W. E. Hackedorn, and John B. Cockrum, for defendant.

BAKER District Judge.

This is an action to recover judgment for damages to the amount of $75,000 for the alleged negligent destruction by fire of property owned by Charles H. Over, a citizen of the state of Indiana. At the time the property was destroyed, it was insured in his favor, in the sum of about $38,000, in several different insurance companies, two of which are citizens of the state of Illinois, of which state the railroad company is a citizen. After the destruction of the property the insurance companies severally paid the amount of their respective policies to Over, who gave to each company a written assignment of a part of his claim for loss against the railroad company, the amount so assigned being equal to the amount paid by each company to him. Over and the insurance companies, except one, then brought suit in the state court, as joint parties and owners of the claim for loss, against the railroad company and the insurance company which had declined to become a plaintiff. One of the plaintiff insurance companies and the defendant insurance company are citizens of the state of Illinois. The railroad company has removed the case into this court on the ground of diverse citizenship, and on the ground that the insurance companies are merely formal, and not necessary or proper, parties to the suit.

The cause of action for the alleged wrong accrued to Over alone. It was a right of action at law, triable by jury. It was not assignable, in whole or in part, so as to invest the assignee with a legal title. By the payment of the policies the insurers became subrogated, pro tanto, to an equitable right in the case of action. The written assignment executed by Over to the insurance companies gave them nothing beyond an equitable right. Neither at common law nor under our statutes does the assignment of a part of a cause of action for a tort invest the assignee with any part of the legal title. The plaintiff Over still retains the entire legal title to the cause of action. As the owner and holder of the entire legal title to the cause of action, and having also the entire beneficial ownership of the unassigned part of it, he can, in...