Rhinehart v. Denver & R.G.R. Co., 8471.

Docket Nº8471.
Citation158 P. 149, 61 Colo. 369
Case DateApril 03, 1916
CourtSupreme Court of Colorado

158 P. 149

61 Colo. 369

RHINEHART et al.
v.
DENVER & R. G. R. CO.

No. 8471.

Supreme Court of Colorado, En Banc.

April 3, 1916


Casemaker Note: Portions of this opinion were specifically rejected by a later court in 452 P.2d 34

Rehearing Denied June 5, 1916.

Error to District Court, Mesa County; Charles Cavender, Judge.

Action by Mary S. Rhinehart and others against the Denver & Rio Grande Railroad Company, wherein the Phenix Insurance Company and others were made defendants. To review a judgment for plaintiffs against the Railroad Company, plaintiff and the Insurance Companies bring error. Reversed and remanded, with directions. [158 P. 150]

[61 Colo. 370] McMullin & Sternberg, of Grand Junction, for plaintiffs in error rhinehart.

Sylvester G. Williams, of Denver, for other plaintiffs in error.

E. N. Clark and R. G. Lucas, both of Denver, for defendant in error.

HILL, J.

The Rhineharts brought this action to recover from the Denver & Rio Grande Railroad Company damages for the destruction of their stock of implements, etc., caused by fire alleged to have been set by an engine of the railroad company. The complaint purports to set forth two causes of action. The first is predicated upon section 5512, Rev. [61 Colo. 371] Stats. 1908 (Act of 1903), pertaining to fires by railroad companies, etc. The second is for the same damages, and includes the same averments as the first, with the additional allegations that the fire was occasioned through the negligence of the railroad company. It is claimed that this states a common-law cause of action based on negligence, as held in Smith v. Denver & Rio Grande R. Co., 54 Colo. 288, 130 P. 1009. The complaint alleges that certain insurance companies claim interests in the subject-matter of the action by reason of certain moneys paid under their respective contracts of insurance with the plaintiffs on account of this loss by virtue of alleged rights of subrogation and assignments claimed to have accrued under said policies; that plaintiffs are not advised as to the validity of such claims, and in order that the rights of all herein may be determined, the insurance companies were made defendants. The plaintiff prays that they be required to answer and disclaim or assert whatever interest they pretend to have, or that, failing so to do, they be hereafter barred from asserting any interest or claim to any recovery on account thereof as against the plaintiffs or the railroad company.

The insurance companies filed answers and cross-complaints, in which they allege that they had written policies upon this property aggregating $2,500. They also allege the same facts as the plaintiff concerning the fire, the cause, the loss, etc., and that they had each paid the owner the full amount of their respective policies. They set forth the provisions of their contracts of insurance, providing for the assignment of the cause of action, etc., to the extent of the amount of the policy, upon its payment, etc. Each asked that it be decreed to have an interest to the extent of the insurance paid in the amount of the recovery as the plaintiff may be entitled to receive from the railroad company, and to the judgment, if any. They also asked judgments against the railroad company for the amount paid.

[61 Colo. 372] The railroad company, for a first defense, denied plaintiffs' allegations; for a second, alleged the execution of the insurance policies, their payment, its tender to the owners of the amount of the premiums paid by them for the insurance, and alleged that by reason of such payments the plaintiffs were paid all losses for destruction of their property, etc., and that the plaintiffs were not the real parties in interest, etc. It demurred to the answers and cross-complaints of the insurance companies, alleging they failed to state a cause of action, etc. These demurrers were sustained, and the action dismissed as to the insurance companies. The cause proceeded to trial between the owner and the railroad company. The total loss was fixed at $3,400; it being admitted that plaintiffs had received $2,500 from the insurance companies. Judgment was entered in favor of the plaintiffs against the railroad company for $900, the balance of their loss.

This writ of error is prosecuted by both the owners and the insurance companies. The owners claim that they were entitled to a judgment against the railroad for the total loss regardless of the insurance. The insurance companies claim that the judgment should have been in their favor for the amount of the insurance paid. The railroad company contends that, regardless of the merits of the insurance companies' claims, its [158 P. 151] demurrers to their answer and cross-complaints were properly sustained; that our Code will not permit suits against it by an insurance company in the manner attempted.

If the insurance companies are not entitled to recover from the railroad company, or participate in the fruits of the judgment against it, the question of practice becomes immaterial, and as this question was ruled upon by the trial court, and has been thoroughly argued, we think it better to pass upon the merits of this contention, even though it could be avoided by considering what is the correct [61 Colo. 373] rule of practice, which will not be determined. Is the owner entitled to recover the total loss from the railroad company, regardless of the amount received from the insurance companies? To put it in another way, can the railroad company escape its statutory liability because the owner has seen fit to contract and pay for indemnity against loss by fire from another source, and upon account of his close proximity to the railroad probably pays a higher rate than otherwise? In such cases all the authorities are to the effect that, unless otherwise provided by statute, the insurance feature is no defense to the railroad company. Hart v. Western Railroad Corporation, 13 Metc. (Mass.) 99, 46 Am.Dec. 719; Regan v. N.Y. & N.E. R. Co., 60 Conn. 124, 22 A. 503, 25 Am.St.Rep. 306; Harding v. Town of Townshend, 43 Vt. 536, 5 Am.Rep. 304; Dillon v. Hunt, 105 Mo. 154, 16 S.W. 516, 24 Am.St.Rep. 374; Propeller Monticello v. Mollison, 17 How. 152, 15 L.Ed. 68; Connecticut M. L. Ins. Co. v. N.Y. & N.H. R. Co., 25 Conn. 265, 65 Am.Dec. 571; Hayward v. Cain, 105 Mass. 213; Hall & Long v. Railroad Companies, 13 Wall. 367, 20 L.Ed. 594; C., St. L. & N. O. R. Co. v. Pullman So. Car Co., 139 U.S. 79, 11 S.Ct. 490, 35 L.Ed. 97; Cunningham v. Evansville & Terre Haute R. Co., 102 Ind. 478, 1 N.E. 800, 52 Am.Rep. 683; Hammond v. Schiff, 100 N.C. 161, 6 S.E. 753; The Yeager (C. C.) 20 F. 653; Mathews v. St. L. & S. F. Ry. Co., 121 Mo. 298, 24 S.W. 591, 25 L.R.A. 161; Yates v. Whyte et al., 5 Scott, 640; 1 Sutherland on Damages (3d Ed.) § 158; Briggs v. N.Y. C. & H. R. R. Co., 72 N.Y. 26; Collins v. N.Y. C. & H. R. R. R. Co., 5 Hun (N.Y.) 503; Anderson v. Miller, 96 Tenn. 35, 33 S.W. 615, 31 L.R.A. 604, 54 Am.St.Rep. 812.

The following cases: Allen v. Chicago & Northwestern Ry. Co., 94 Wis. 93, 68 N.W. 673; Swarthout v. Chicago & Northwestern Ry. Co., 49 Wis. 625, 6 N.W. 314; Pratt v. Radford, 52 Wis. 114, 8 N.W. 606; Lancaster Mills v. [61 Colo. 374] Merchants' Cotton-Press Co., 89 Tenn. 1, 14 S.W. 317, 24 Am.St.Rep. 586; Cunningham v. Railroad, 139 N.C. 427, 51 S.E. 1029, 2 L.R.A. (N. S.) 921; Monmouth Co. Fire Ins. Co. v. Hutchinson and C. & A. R. Co., 21 N.J.Eq. 107; Mobile & Montgomery Ry. Co. v. Jurey, 111 U.S. 584, 4 S.Ct. 566, 28 L.Ed. 527; Southern Ry. Co. v. Blunt & Ward (C. C.) 165 F. 258--cited by the railroad company as sustaining their contention that, when it is shown that the owner has been reimbursed for his loss by the insurance company, he cannot maintain an action against the person who caused the fire, because this would lead to a double recovery by the insured, do not justify this conclusion; but, to the contrary, they all recognize the right of subrogation in the insurance company, where not prohibited by statute, and hold that, when the owner has been paid the full amount of his loss by the insurer, he cannot, under the practice where an action shall be brought by the real party in interest, maintain his suit, for the reason that he has no interest, because, as stated in these cases, in equity or by contract upon the payment to him of his loss by the insurer the insurance company is subrogated to his right, and it alone is the real party in interest, and the only one that has the right to bring the suit. None of these cases are in conflict with those heretofore cited.

The general rule is that the question of double payment to the owner is a matter purely between the insured and the insurer. As stated by the Supreme Court of Indiana in Cunningham et al. v. Evansville & Terre Haute Railroad Company, 102 Ind. 478, 482, 1 N.E. 800, 803 (52 Am.Rep. 683).

'The contracts of the appellants for the insurance of their property with the insurance companies, and their subsequent conduct in relation thereto, are matters in which the appellee, as the wrongdoer, had no concern, and which do not affect the measure of its liability. So the law [61 Colo. 375] seems to be uniformly settled elsewhere, and we know of no sufficient reason for adopting a different rule of decision in this state.'

Numerous cases are cited to sustain this declaration. In Hayward v. Cain, 105 Mass. 213, at page 214, the court says:

'The transaction between the insurers and the owners of the property injured were matters in which the wrongdoer had no concern, and which do not affect the measure of his liability.'

In Merrick v. Brainard, 38 Barb. (N.Y.) 574, at page 589, it is said:

'I insure my furniture in my house; a person either willfull or negligently sets it on fire; and when I demand compansation for my loss, he insists upon his right to deduct the amount for which the property is insured. To say the
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8 practice notes
  • Van Waters & Rogers, Inc. v. Keelan, No. 91SC549
    • United States
    • Colorado Supreme Court of Colorado
    • November 23, 1992
    ...not required to be set off against damages for which a tortfeasor was obligated. See, e.g., Rhinehart v. Denver and Rio Grande R.R. Co., 61 Colo. 369, 373-80, 158 P. 149, 151-53 (1916) (award against railroad for damages resulting from fire caused by railroad not to be set off by amounts re......
  • Morgan County Junior College Dist. v. Jolly, No. 23582
    • United States
    • Colorado Supreme Court of Colorado
    • March 24, 1969
    ...they conflict with the above stated rule, Brown v. City of Denver, 7 Colo. 305, 3 P. 455 and Rhinehart v. Denver and Rio Grande R.R. Co., 61 Colo. 369, 158 P. 149 are hereby We have here adopted the modern view. 2 Sutherland, Statutory Construction, § 2103 (3d ed.). We conceive it to be fai......
  • Bonfils v. Public Utilities Com'n of Colorado, 9204.
    • United States
    • Colorado Supreme Court of Colorado
    • March 1, 1920
    ...with which the defendants were not concerned.' On principle the question is determined by Rhinehart v. Denver & Rio Grande Railroad Co., 61 Colo. 369, 158 P. 149, where we held that the defendant could not reduce a claim against it for damages by the fact that the plaintiff had been paid an......
  • Solberg v. Minneapolis Willys-Knight Co., No. 27106.
    • United States
    • Supreme Court of Minnesota (US)
    • March 22, 1929
    ...which lessens the liability of a defendant for a tort. Evans v. Chicago, etc., 133 Minn. 293, 158 N. W. 335;Rhinehart v. Denver, etc., 61 Colo. 369, 158 P. 149;Florence v. Delaware, etc., 258 Pa. 456, 102 A. 133;Criez v. Sunset Motor Co., 123 Wash. 604, 213 P. 7, 32 A. L. R. 627. The last c......
  • Request a trial to view additional results
8 cases
  • Van Waters & Rogers, Inc. v. Keelan, No. 91SC549
    • United States
    • Colorado Supreme Court of Colorado
    • November 23, 1992
    ...not required to be set off against damages for which a tortfeasor was obligated. See, e.g., Rhinehart v. Denver and Rio Grande R.R. Co., 61 Colo. 369, 373-80, 158 P. 149, 151-53 (1916) (award against railroad for damages resulting from fire caused by railroad not to be set off by amounts re......
  • Morgan County Junior College Dist. v. Jolly, No. 23582
    • United States
    • Colorado Supreme Court of Colorado
    • March 24, 1969
    ...they conflict with the above stated rule, Brown v. City of Denver, 7 Colo. 305, 3 P. 455 and Rhinehart v. Denver and Rio Grande R.R. Co., 61 Colo. 369, 158 P. 149 are hereby We have here adopted the modern view. 2 Sutherland, Statutory Construction, § 2103 (3d ed.). We conceive it to be fai......
  • Bonfils v. Public Utilities Com'n of Colorado, 9204.
    • United States
    • Colorado Supreme Court of Colorado
    • March 1, 1920
    ...with which the defendants were not concerned.' On principle the question is determined by Rhinehart v. Denver & Rio Grande Railroad Co., 61 Colo. 369, 158 P. 149, where we held that the defendant could not reduce a claim against it for damages by the fact that the plaintiff had been paid an......
  • Solberg v. Minneapolis Willys-Knight Co., No. 27106.
    • United States
    • Supreme Court of Minnesota (US)
    • March 22, 1929
    ...which lessens the liability of a defendant for a tort. Evans v. Chicago, etc., 133 Minn. 293, 158 N. W. 335;Rhinehart v. Denver, etc., 61 Colo. 369, 158 P. 149;Florence v. Delaware, etc., 258 Pa. 456, 102 A. 133;Criez v. Sunset Motor Co., 123 Wash. 604, 213 P. 7, 32 A. L. R. 627. The last c......
  • Request a trial to view additional results

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