Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company v. Home Insurance Company of New York
| Decision Date | 10 December 1919 |
| Docket Number | 10,118 |
| Parties | PITTSBURGH, CINCINNATI, CHICAGO AND ST. LOUIS RAILWAY COMPANY v. HOME INSURANCE COMPANY OF NEW YORK |
| Court | Indiana Appellate Court |
Rehearing denied March 16, 1920.
Transfer denied April 29, 1920.
From Cass Circuit Court; John S. Lairy, Judge.
Action by the Home Insurance Company of New York against the Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company and another. From a judgment for plaintiff, the named defendant appeals.
Affirmed.
G. E Ross, for appellant.
Long, Yarlott & Souder, for appellee.
This is an action commenced by appellee against appellants in the Cass Circuit Court. The complaint on which the cause was tried is in a single paragraph, and alleges in substance, among other things, that appellee is a corporation, engaged in the business of insurance, and is duly authorized to conduct, and is conducting, a fire insurance business in the State of Indiana; that appellant company is a corporation, and on December 31, 1912, owned and was operating a railroad through the counties of Cass and Pulaski in said state; that on May 11, 1911, appellee, for a valuable consideration, entered into a contract of insurance with appellant Van Gundy, and issued him a policy evidencing such contract, by the terms of which appellee insured said Van Gundy for three years from that date against loss by fire on a certain dwelling house owned by him in the town of Thornhope in Pulaski county, agreeing to pay him the sum of $ 200 in case said house should be lost or destroyed by fire, and that said contract was in force and binding on appellee on December 31, 1912; that said dwelling, on the date last named, was totally destroyed by fire, and the liability of appellee to pay said sum of $ 200 was thereby fixed, which sum was less than the value of the building so destroyed; that thereafter, on January 7, 1913, appellee paid said sum to said Van Gundy, as it was obligated to do by the terms of said contract of insurance; that said dwelling house was located about forty-six feet east of the railroad track of appellant company in said town of Thornhope; that on December 31, 1912, said appellant owned and operated a locomotive engine on its said track through said town, and within fifty feet of said dwelling house; that said engine communicated sparks and coals of fire to the roof of said house, and did then and there and thereby cause said house to burn and to be completely destroyed; that the same was so destroyed without any carelessness or negligence on the part of appellee, or the owner of said dwelling house, or the agent or agents of either of them; that by reason of said facts appellant company became and was liable to said Van Gundy for the damages sustained by him on account of the loss and destruction of said building; that by reason of the above facts appellee is entitled to be subrogated to the rights of said Van Gundy, as against said appellant company, to the amount of insurance paid to him by it; that appellee has sustained damages in the sum of $ 200, which sum remains due it from appellant company, and is wholly unpaid; that appellant Van Gundy is made a defendant to answer to any interest he may have therein. Prayer for judgment in the sum of $ 200 and costs.
Appellant Van Gundy was defaulted. Appellant company, which will hereinafter be designated as appellant, filed demurrers to the complaint, alleging that there was a defect of parties defendant; that appellee had no legal capacity to sue, and that the complaint did not state facts sufficient to constitute a cause of action. These demurrers were overruled, and appellant then filed a verified answer in general denial. The cause was submitted to a jury for trial, resulting in a verdict and judgment against appellant in the sum of $ 192. The jury also returned their answers to certain interrogatories submitted by the court. Appellant filed its motion for a new trial, which was overruled, and on the same date filed its motion in arrest of judgment, which was likewise overruled. It now prosecutes this appeal, and has assigned errors, which require a consideration of the questions hereinafter determined.
The first and most serious question presented by this appeal relates to the jurisdiction of the Cass Circuit Court over the subject-matter of the action. Appellant contends that, since this is an action for damages to real estate in Pulaski county, Indiana, caused by the burning of a dwelling house therein, the circuit court of that county had exclusive jurisdiction of the subject-matter of the action. It bases this contention on the provision of § 309 Burns 1914, § 307 R. S. 1881, which reads in part as follows: This section, standing alone, would appear to support appellant's contention. However, in determining the question before us, we must consider said section in connection with §§ 344, 348 Burns 1914, Acts 1911 p. 415. Said § 344, appearing as § 85 of the Code, reads in part as follows: "The defendant may demur to the complaint when it appears upon the face thereof, either: First, that the court has no jurisdiction of the person of the defendant, or the subject-matter of the action; or second, that the plaintiff has no legal capacity to sue; or, third, that there is another action pending between the same parties for the same cause; or fourth, that there is a defect of parties, plaintiff or defendant; or fifth, that the complaint does not state facts sufficient to constitute a cause of action; or sixth, that several causes of action have been improperly joined; and for no other cause shall a demurrer be sustained."
Said § 348 reads as follows:
In the instant case it appears that under the provision of § 309, supra, the action was brought in the wrong county, but, as appellant did not take advantage of that fact by demurrer or answer, it waived any objection based thereon, by reason of the proviso contained in § 348, supra.
But appellant contends in opposition to this view that, since actions for trespass or injury to real property must be brought in the county in which such property is situated, as provided by § 309, supra, the court of another county does not have, and cannot acquire, jurisdiction of the subject-matter for the purpose of commencing such action. As preliminary to a consideration of this contention, it should be noted that the proviso in § 348, supra, was added thereto by amendment in 1881. Appellant has cited a number of cases in support of its contention, which antedate the amendment of said section. In order to determine what weight we should give these authorities, we must determine the intent of the legislature in adding the proviso to said section by the act of 1881. Appellant contends that this proviso only applies to cases involving the jurisdiction of the person, in actions brought in counties other than that provided by statute. We cannot concur in this contention, but are forced to the conclusion that it must be held to apply to cases involving the subject-matter of the action as well, at least where the only judgment sought is one in personam. It should be noted that, prior to 1881, it was the law that the question of jurisdiction over the person of a defendant had to be raised by demurrer or answer; otherwise it was waived. Newell v Gatling (1855), 7 Ind. 147; Keiser v. Yandes (1873), 45 Ind. 174. It will be presumed that the legislature of 1881 knew of the existing law in this regard. Steiert v. Coulter (1913), 54 Ind.App. 643, 102 N.E. 113, 103 N.E. 117. Therefore we would not be warranted in assuming that the legislature, in amending said § 348 as stated, did the unusual, not to say useless, thing of legislating on a subject in conformity with existing law, as judicially declared, where no question or confusion existed with reference to the same. This fact of itself very naturally leads us to look further in our effort to ascertain the purpose of the proviso under consideration. It has been held that the rational and appropriate function of a proviso is to restrain or qualify the preceding clause or clauses of the section in which it is found. Morrison v. State, ex rel. (19...
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Pittsburgh. C., C. & St. L. Ry. Co. v. Home Ins. Co. of New York
... ... Lairy, Judge.Action by the Home Insurance Company of New York against the Pittsburgh, nnati, Chicago & St. Louis Railway Company and another. Judgment ... ...