Pratt v. Radford

• Citation: 8 N.W. 606,52 Wis. 114
• Parties: PRATT v. RADFORD AND ANOTHER.
• Decision Date: 13 April 1881
• Court: United States State Supreme Court of Wisconsin

52 Wis. 114

8 N.W. 606

PRATT

v.RADFORD AND ANOTHER.

Supreme Court of Wisconsin.

Filed April 13, 1881.

Appeal from circuit court, Winnebago county.

This action is to recover damages for the burning of the plaintiff's mill by reason of the alleged negligence of the defendants. The damages are laid at $22,250. The defendants answered in abatement that at the time of burning plaintiff held 11 policies of insurance on his mill, issued by legally organized companies, (naming them,) which policies were in full force at the time of burning, (giving amount of each policy,) which amounted in aggregate to $13,000; that on such policies, before this action was commenced, such companies each paid plaintiff twenty-five twenty-sixths of the amount of its policy, (stating the exact sum paid by each,) which amounted in all to $12,500; that each of said companies had in this state a duly-authorized agent, on whom process could be served, so as to give the court jurisdiction of such companies, (giving the name and place of residence of each agent of each company.) Defendants asked judgment, dismissing complaint without prejudice, because such insurance companies were not made parties plaintiff. To this answer the plaintiff interposed a general demurrer, which was overruled by the court. This appeal is by the plaintiff from the order overruling the demurrer.Finch & Barber and C. W. Felker, for appellant.

Moses Hooper, for respondents.

LYON, J.

There is but a single cause of action stated in the complaint, towit, the negligence of the defendants which resulted in the destruction of the plaintiff's mill. Our statutes provide that “every action must be prosecuted in the name of the real party in interest,” (Rev. St. 714, § 2605,) except that “an executor or administrator, a trustee of an express trust, or a person expressly authorized by statute, may sue without joining with him the person for whose benefit the action is prosecuted.” Section 2607. Section 2604 provides that “of the parties to the action, those who are united in interest must be joined as plaintiffs or defendants; but if the consent of any one who should be joined as plaintiff cannot be obtained, he may be made a defendant, the reason thereof being stated in the complaint.” The several insurance companies named in the answer, upon payment of the loss covered by the respective policies, became subrogated pro tanto to the claim of the plaintiff against the wrong-doers whose negligence caused...