Savannah Fire & Marine Ins. Co. v. Pelzer Mfg. Co.

• Decision Date: 26 February 1894
• Citation: 60 F. 39
• Court: U.S. Court of Appeals — Fourth Circuit
• Parties: SAVANNAH FIRE & MARINE INS. CO. v. PELZER MANUF'G CO. et al.

60 F. 39

SAVANNAH FIRE & MARINE INS. CO. v. PELZER MANUF'G CO. et al.

United States Circuit Court, D. South Carolina.

February 26, 1894

Julius H. Heyward and Mitchell & Smith, for complainants.

Cothran Wells, Ansel & Cothran, Smythe & Lee, Abney & Thomas Haynsworth & Parker, and T. Q. & A. H. Donaldson, for defendants.

SIMONTON Circuit Judge.

The facts of this case, as developed in the record and testimony are these: The Pelzer Manufacturing Company had on storage in the warehouse of Cely Bros., in Greenville, 1,000 bales of cotton, estimated to be of the value of $45,000 and more. The rate of storage was 25 cents per bale, insured. Cely Bros insured the cotton for nearly its full value in policies taken out in their own name in various companies of their own selection. The policies were concurrent, covering all the cotton in the warehouse, each policy being for a fixed amount. The warehouse was erected on lands of the Columbia & Greenville Railroad Company, upon or next adjacent to their right of way. The land was held by Cely Bros. under lease for the term of 20 years from the railroad company at a nominal rent. This covenant was inserted in the lease, and was a part of the consideration thereof:

'And it is further covenanted and agreed, by and between the parties hereto, that during the continuance of this lease the Columbia and Greenville Railroad Company, its successors and assigns, shall not in any wise be responsible for any loss or damage to the said building, or the contents thereof, from fire communicated by the locomotive engines of the said company, its successors or assigns, or originating within the limits of the right of way of the said Columbia and Greenville Railroad Company, its successors or assigns; and all such loss or damage shall be borne by the said Cely Brothers, their executors, administrators, and assigns.'

This lease was dated 15th December, 1882. Adjacent to the warehouse, which was filled with the cotton of the Pelzer Manufacturing Company, was a platform extending towards, and almost up to, the track of the Columbia & Greenville Railroad Company. On this platform, at the time of the fire hereinafter mentioned, were a number of bales of cotton, the property of other persons than the Pelzer Manufacturing Company. On 15th March, 1889, before noon, while a locomotive of this railroad company was passing to and fro on the track of the railroad, and alongside this platform, a fire broke out in the cotton on the platform. This fire was thereby communicated to the cotton in the warehouse, and consumed all the bales therein and on the platform. Very shortly after the fire, Cely Bros. assigned all the policies held by them covering cotton in the warehouse, to the Pelzer Manufacturing Company, who at once notified each insurance company of this fact, made proofs of loss, and demanded payment. Three of these insurance companies--the Springfield Fire & Marine Insurance Company, the Rochester German Insurance Company, and the Continental Insurance Company--paid the losses on demand, and each of them obtained an assignment to the amount of the payment made by each of them, respectively, of that much of the claim which the Pelzer Manufacturing Company might have against the railroad company because of the loss by fire. The other companies, among them the complainant in this suit, resisted payment, chiefly upon the ground that Cely Bros., in whose name the policies were issued, had released the railroad company from a claim for damages, and had concealed this fact when the insurance was effected. After protracted litigation the decisions were adverse to the insurance companies, and each of them has paid its share of the loss. The Savannah Fire & Marine Insurance Company, one of the litigating companies, now files this bill of complaint, in behalf of itself and all other insurance companies in like plight, averring that the Pelzer Manufacturing Company, as owner of the cotton, has a claim for damages against the railroad company by reason of its destruction under the circumstances stated, and that each of them is entitled to subrogation, pro tanto, on payment of loss, to these rights; and that, inasmuch as the tort is indivisible, this claim of damages must be made in the name of the Pelzer Manufacturing Company for the use of the insurance companies. The bill prays that an account be taken of the number of bales of cotton covered by the policies of insurance and the value thereof, and that the Columbia & Greenville Railroad Company be required to pay the same; that the same, when paid, be distributed among the parties entitled thereto, according to their respective rights...