Swarthout v. Chicago & Northwestern Railway Company

• Decision Date: 23 June 1880
• Citation: 6 N.W. 314,49 Wis. 625
• Parties: SWARTHOUT and others v. THE CHICAGO & NORTHWESTERN RAILWAY COMPANY
• Court: Wisconsin Supreme Court

6 N.W. 314

49 Wis. 625

SWARTHOUT and others v. THE CHICAGO & NORTHWESTERN RAILWAY COMPANY

Supreme Court of Wisconsin

June 23, 1880

Argued May 28, 1880

APPEAL from the Circuit Court for La Crosse County.

Three insurance companies united with Swarthout in bringing this action. Defendant appealed from an order overruling its demurrer to the complaint.

The case is thus stated by Mr. Justice COLE:

"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, but, 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 distinct 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 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."

Order affirmed.

For the appellant there was a brief by F. J. Lamb, and oral argument by Mr. Lamb and Wm. F. Vilas:

1. Assuming that, by the payment of the amounts insured, each of the insurance companies became subrogated to the right of Swarthout to an action for the amount so paid, the rights so acquired were distinct and several. The assignments are expressly alleged to be several, and do not purport to convey any joint right or interest. The fact that the damage was caused by one negligent act, cannot change the result. Each must sue separately for his own individual injury. Barnes v. Beloit, 19 Wis., 93; Newcomb v. Horton, 18 id., 566; School Districts v. Edwards, 46 id., 150; Meyers v. Rahte, id., 655; Faesi v. Goetz, 15 id., 231. The several causes of action do not "affect all the parties to the action." R. S., sec. 2647. One or two of the insurance companies might fail in the action without affecting the other parties. 2. Assuming a cause of action to be stated in favor of Swarthout, the other parties are unnecessary and improper, and the demurrer for that reason should have been sustained. Read v. Sang, 21 Wis 678; R. S., sec. 2651.

For the respondents there was a brief by Cameron, Losey & Bunn, and oral argument by Mr. Bunn:

Where property destroyed belongs to one person, and the negligent act is one and indivisible, there arises but one cause of action. If an insurer pays the loss, he becomes subrogated to the right of the owner to the extent of the payment. But the cause of action remains single, and the insurer acquires a joint right with the owner therein, not a new and separate right of action. London Assurance Co. v. Sainsbury, 3 Doug., 245; Mason v. Sainsbury, id., 61; Yates v. Whyte, 4 Bing. N. C., 272; Clark v. The Hundred, 2 B. & C., 254; Randal v. Cockran, 1 Ves Sr., 98; Hart v. R. R. Corp., 13 Met., 105; Rockingham Ins. Co. v. Bosher, 39 Me., 254; Conn. M. L. Ins. Co. v. R. R. Co., 25 Conn., 270; Hall v. R. R. Cos., 13 Wall., 370; Gales v. Hailman, 11 Pa. St., 515; AEtna Ins. Co. v. R. R. Co., 3 Dillon, 1; Peoria M. & F. Ins. Co. v. Frost, 37 Ill., 333. The requirement of the code that the action be brought in the name of the real party in interest, does not affect the cause of action, but only the manner of suing. The action, formerly brought in the name of the owner, must now be in the name of the owner and the insurer as joint plaintiffs. Conn. F. Ins. Co. v. R. R. Co., 73 N. Y., 402. That there are too many parties plaintiff is not ground of demurrer. Willard v. Reas, 26 Wis., 544; Marsh v. Comm'rs, 38 id., 252; G. W. Com. Co. v. Ins. Co., 40 id., 375. The case of Read v. Sang, 21 Wis., 678, is expressly stated in the opinion to be decided as an exception to the rule.

OPINION

ORSAMUS COLE, J.

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...