Pontiac Mut. Cnty. Fare & Lightning Ins. Co. v. Sheibley

• Decision Date: 21 June 1917
• Docket Number: No. 11336.,11336.
• Citation: 116 N.E. 644,279 Ill. 118
• Court: Illinois Supreme Court
• Parties: PONTIAC MUT. COUNTY FARE & LIGHTNING INS. CO. v. SHEIBLEY.

279 Ill. 118

116 N.E. 644

PONTIAC MUT. COUNTY FARE & LIGHTNING INS. CO.

v.SHEIBLEY.

No. 11336.

Supreme Court of Illinois.

June 21, 1917.

Appeal from Appellate Court, Second District, on Appeal from Circuit Court, Livingston County; George W. Patton, Judge.

Action by the Pontiac Mutual County Fire & Lightning Insurance Company against W. M. Sheibley. Judgment for plaintiff was affirmed by the Appellate Court, which granted a certificate of importance, and defendant appeals. Affirmed.

Arthur H. Shay, of Streator, for appellant.

Bert W. Adsit, of Pontiac, for appellee.

COOKE, J.

W. M. Sheibley, appellant, owned a barn which was insured for $800 by appellee, the Pontiac Mutual County Fire & Lightning Insurance Company. On October 14, 1913, this barn and other buildings and property belonging to appellant were destroyed by a fire which was claimed to have been started by sparks from a locomotive engine of the Chicago & Alton Railroad Company. Appellee paid appellant the amount of its policy, and soon afterward appellant commenced suit in the circuit court of Livingston county against the railroad company. This suit was begun after a conference between the respective attorneys of appellant and appellee, who decided that it was advisable to bring the suit for the joint interests of their clients. Appellee, through its attorney, assisted in the preparation of this cause for trial and in the trial of the case. Appellant claimed that the total amount of his loss was $4,800. He obtained a verdict for $4,000. The railroad company moved for a new trial, and this motion was resisted by appellant and was overruled, and judgment was rendered on the verdict. The railroad company perfected an appeal from this judgment and thereafter offered to pay $3,000 in full settlement. At the request of appellant, the officiers of appellee and their attorneys met with appellant and the attorney for the railroad company to discuss the settlement. At this conference appellee advised appellant that if he chose to settle for $3,000 it would prorate with him and accept $600 as its share of the proceeds, but that if he thought it best to carry the case to the Appellate Court it would assist him in that court. Appellant afterward accepted $3,000 in satisfaction of the judgment. He refused to pay appellee any part of the money recovered, and appellee brought this suit against him in the circuit court of Livingston county, which resulted in a judgment for $600. This judgment was affirmed by the Appellate Court, a certificate of importance was granted, and the cause has been brought to this court by appeal.

The instructions given by the trial court in effect directed a verdict for appellee. Appellant insists that the trial court erred in refusing to give a peremptory instruction directing a verdict in his favor, and contends that where as assured has recovered a portion of his loss from a wrongdoer and a portion from an insurance company, and the total sum collected from both is less than his total loss, the insurance company is not entitled to anything from the assured. The right of action agianst the railroad company was in appellant. Where a loss by fire has been caused by the action of a wrongdoer and the insurance company has paid the loss, it cannot maintain an action in its own name against the wrongdoer. The suit must be brought in the name of the property owner, for the use of the insurer. Peoria Ins. Co. v. Frost, 37 Ill. 333. Appellant advised with appellee in reference to instituting a suit against the railroad company, and it was agreed that the action should be brought for their joint interests. Appellee actively assisted in the preparation and trial of the case. While appellant claimed then, and still claims, that his total loss was $4,800, as between him and appellee it was conclusively determined in the suit against the railroad company that his total loss was $4,000. Where a suit is brought in the name of one party for the benefit of another who directs and advises the same, the latter, though not a formal party to the suit, is privy in interest and will be concluded by the judgment. Cole v. Favorite, 69 Ill. 457;Anderson v. West Chicago Street Railroad Co., 200 Ill. 329, 65 N. E. 717.

The cases relied upon by appellant to sustain his position are all cases...