Palmer v. Oregon-Washington R. & Nav. Co.
Decision Date | 22 October 1913 |
Docket Number | 1,367. |
Citation | 208 F. 666 |
Court | U.S. District Court — Western District of Washington |
Parties | PALMER et al. v. OREGON-WASHINGTON R. & NAV. CO. |
Granger & Clarke, of Seattle, Wash., for plaintiffs.
Bogle Graves, Merritt & Bogle, of Seattle, Wash., for defendant.
This matter is for decision upon a motion to remand the cause to the state court. The plaintiff Palmer is a citizen of Washington and resident of this district. The plaintiff insurance companies are corporations of California Connecticut, Pennsylvania, and Great Britain, doing business in this state and district. The defendant is an Oregon corporation. The amount in controversy exceeds $3,000.
The suit is one to recover for the loss, by fire, of the mill of the plaintiff Palmer, alleged to have been caused by the defendant's negligence. It appears that the plaintiff companies had insured the mill and paid the plaintiff Palmer on account of its destruction, part of the loss alleged to have been caused, under policies of insurance providing:
'If this company (the insurance company) shall claim that the fire was caused by the act or neglect of any person or corporation, private or municipal, this company shall, on payment of the loss, be subrogated to the extent of such payment to all right of recovery by the insured for the loss resulting therefrom, and such right shall be assigned to this company by the insured, on receiving such payment.'
Plaintiff relies upon the following authorities: Fireman's Fund Ins. Co. v. O.R. & N., 58 Wash. 332, 76 P. 1075; Pratt v. Radford, 52 Wis. 114, 8 N.W. 606; Wunderlich v. C.N.W., 93 Wis. 132, 66 N.W. 1144; Gaugler v. C., M., P.S.R.R. Co. (U.S.D.C., Mont.) 197 F. 79; Smith v. Lyon, 133 U.S. 315, 10 Sup.Ct. 303, 33 L.Ed. 635; Ex parte Wisner, 203 U.S. 449, 27 Sup.Ct. 150, 51 L.Ed. 264; Dickerson v. Spokane, 26 Wash. 292, 66 P. 381; McElroy v. Williams, 14 Wash. 627, 45 P. 306; State ex rel. Adjustment Co. v. Superior Court, 67 Wash. 355, 121 P. 847; Continental Ins. Co. v. Loud, 93 Mich. 139, 53 N.W. 394, 32 Am.St.Rep. 494; Fairbanks et al. v. Ry. Co., 115 Cal. 579, 47 P. 450; United Coal Co. v. Canon City Coal Co., 24 Colo. 116, 48 P. 1045; State Ins. Co. v. Oregon Ry. & Nav. Co., 20 Or. 563, 26 P. 838; Fireman's Ins. Co. v. Oregon Ry. & Nav. Co., 45 Or. 53, 76 P. 1075, 67 L.R.A. 161, 2 Ann.Cas. 360; First Presbyterian Society v. Goodrich Trans. Co. (C.C.) 7 Fed. 257; Glenn v Marbury, 145 U.S. 499, 12 Sup.Ct. 914, 36 L.Ed. 790; Kansas Midland Ry. Co. v. Brehm, 54 Kan. 751, 39 P. 690; Liverpool & G.W.S.S. Co. v. Phenix Ins. Co., 129 U.S. 397, 9 Sup.Ct. 469, 32 L.Ed. 788; City of New Orleans v. Whitney, 138 U.S. 595, 11 Sup.Ct. 428, 34 L.Ed. 1106; Downs v. Pioneer Mutual Ins. Co., 41 Wash. 372, 83 P. 423; Thompson v. Cent. Ohio R.R. co., 6 Wall. 134, 18 L.Ed. 765; Delaware Co. v. Diebold Safe & Lock Co., 133 U.S. 473, 10 Sup.Ct. 399, 33 L.Ed. 680; Mexican Cent. R.R. Co. v. Eckman, 187 U.S. 429, 23 Sup.Ct. 211, 47 L.Ed. 247; Over v. R.R. Co. (C.C.) 63 F. 34; Evans v. Durango Land Co., 80 F. 433, 25 C.C.A. 531.
The following cases are relied upon by defendant: Slauson v. Schwabacher Bros. & Co., 4 Wash. 783, 31 P. 329, 31 Am.St.Rep. 918; Hall & Long v. R.R. Companies, 13 Wall. 367, 20 L.Ed. 594; Norwich Union Fire Ins. Society v. Standard Oil Co., 59 F. 984, 8 C.C.A. 433; Turk v. Ill. Cent. Ry. Co. (D.C.) 193 F. 252; Kansas City M. & O.R. Co. v. Shutt, 24 Okl. 96, 104 P. 51, 138 Am.St.Rep. 870, 20 Ann.Cas. 255.
It is conceded that, if the insurance companies are necessary parties to the action, the motion to remand is well taken. Ex parte Wisner, 203 U.S. 449, 27 Sup.Ct. 150, 51 L.Ed. 264; In re Moore, 209 U.S. 490, 28 Sup.Ct. 585, 52 L.Ed. 904, 14 Ann.Cas. 1164; Ex parte Harding, 219 U.S. 363, 31 Sup.Ct. 324, 55 L.Ed. 252, 37 L.R.A. (N.S.) 392.
At common law, Palmer, the holder of the legal cause of action, alone, could sue, and the insurance companies, if joined, on the motion to remand, would be held merely nominal parties, whose citizenship and residence would not affect the jurisdiction. First Pres. Society of Green Bay v. Goodrich Trans. Co. (C.C.) 7 Fed. 257; London Assurance Co. v. Sainsbury, 3 Doug. 245; Mason v. Sainsbury, Id. 60; Yates v. Whyte, 4 Bing. (n.c.) 272; Hart v. Western R. Corporation, 13 Metc. 105, 46 Am.Dec. 719; Rockingham Mut. Fire Ins. Co. v. Bosher, 39 Me. 254, 63 Am.Dec. 618; Conn. Mut. Life Ins. Co. v. N.Y., etc., R. Co., 25 Conn. 270, 65 Am.Dec. 571; Peoria Ins. Co. v. Frost, 37 Ill. 333.
A different rule is admitted to exist in code states. Glenn v. Marbury, 145 U.S. 499 at 511, 12 Sup.Ct. 914, 36 L.Ed. 790.
The law of the state of Washington as to necessary parties is controlling in this court. Thompson v. Railroad Co., 6 Wall. 134, 18 L.Ed. 765.
The Washington statute provides:
Under the foregoing provisions, in the state of Washington, an insurance company, under the circumstances in this case, would be held a party in interest and could sue in its own name. McElroy v. Williams, 14 Wash. 627, 45 P. 306; Fireman's Fund Ins. Co. v. O.R. & N. Co., 58 Wash. 332, 108 P. 770; State of Washington ex rel. Adjustment Co. v. Superior Court, 67 Wash. 355, 121 P. 847.
An 'express trust' can only be created by agreement of the parties to the trust concerning it. Words & Phrases, 'Express Trust,' vol. 3, p. 2611.
The right in the plaintiff insurance companies, upon the payment of Palmer's loss, through subrogation, was created by operation of equitable principles, and not created, but rather recognized, by the terms of the insurance policy. New Orleans v. Gaines' Adm'r (Whitney), 138 U.S. 595, 11 Sup.Ct. 428, 34 L.Ed. 1106; Liverpool & G.W.S.S. Co. v. Phenix Ins. Co., 129 U.S. 397, 9 Sup.Ct. 469, 32 L.Ed. 788.
Choses in action are not assignable at common law. Glenn...
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