Swarthout v. C. & N. W. R. Co.
| Decision Date | 01 January 1880 |
| Citation | 49 Wis. 625,6 N.W. 314 |
| Court | Wisconsin Supreme Court |
| Parties | SWARTHOUT AND OTHERS v. THE C. & N. W. R. CO. |
OPINION TEXT STARTS HERE
Appeal from circuit court, La Crosse county.
Cameron, Losey & Bunn, for respondents.
W. F. Vilas and T. J. Lamb, for appellant.
This action is brought by the plaintiffs to recover of the defendant company the damages caused by the burning of the plaintiff Swarthout's property through the negligence of the defendant. The property destroyed is alleged to have been of the value of $6,727. The plaintiff insurance companies were insurers of the property to the extent of $1,000 each. After the fire the insurance companies paid Swarthout the amount of their respective policies, and at the same time Swarthout made and delivered to each an instrument in writing assigning and setting over to each insurance company his claim against the railroad company to the extent of $1,000, and subrogating each insurance company to his rights for that amount. Judgment is demanded for the value of the property destroyed.
The defendant demurred to the complaint on the ground that it appeared from the face thereof-- First, that there is a defect of parties plaintiff herein in this, that on the facts alleged the plaintiffs do not have any joint claim or cause of action against the defendant; if any claim or cause of action is set forth in said complaint as to any or all of said plaintiffs, such claim or cause of action as to each plaintiff is separate and direct from the claim or cause of action of each of the other plaintiffs, and to each such several causes of action all the other plaintiffs aforesaid than the one to which the same respectively belongs are unnecessary and superfluous, and are improperly joined as plaintiffs herein; second, that several causes of action have been improperly united; third, that the complaint does not state facts sufficient to constitute a cause of action. The demurrer to the complaint was overruled, and the correctness of that ruling is the matter to be decided upon this appeal.
The learned counsel for the defendant, in support of the demurrer, candidly admitted the law to be well established that an insurance company which has been compelled to pay, or has paid, a loss covered by its policy, has, after such payment, a right of action against the person who wrongfully caused the fire and loss to the amount such insurance company paid, even without any formal assignment by the assured of his claim against the party primarily liable. An examination of the authorities will show that this admission was not improvidently made. And the courts have likewise been very firm in supporting the right of the insurance company to bring an action in the name of the assured, and will not allow the latter to defeat such action even by a release or discharge of the person by whose act the damage was occasioned. Hart et al. v. Western R. Co. 13 Metc. 99; Monmouth County Fire Ins. Co. v. Hutchinson et al. 21 N. J. Eq. 107;Conn. Fire Ins. Co. v. Railway Co. 73 N. Y. 399. These authorities distinctly affirm this position on the ground that the assured, by accepting payment of the insurer, subrogates the...
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