The Chicago v. The German Insurance Company

• Decision Date: 01 October 1895
• Docket Number: 19
• Court: Kansas Court of Appeals
• Parties: THE CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, Grantee and Assignee of the Burlington & Missouri River Railroad Company in Nebraska, v. THE GERMAN INSURANCE COMPANY, OF FREEPORT, ILLINOIS

42 P. 594

2 Kan.App. 395

THE CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, Grantee and Assignee of the Burlington & Missouri River Railroad Company in Nebraska, v. THE GERMAN INSURANCE COMPANY, OF FREEPORT, ILLINOIS

No. 19

Court of Appeals of Kansas, Northern Department, Central Division

October 1, 1895

Opinion Filed November 11, 1895.

MEMORANDUM.--Error from Washington district court; F. W STURGES, judge. Action brought by The German Insurance Company, of Freeport, Illinois, against The Chicago Burlington & Quincy Railroad Company, as grantee, etc for loss by fire. Judgment for plaintiff. Defendant brings the case here. Affirmed. The facts are stated in the opinion herein.

Judgment affirmed.

W. F. Guthrie, for plaintiff in error.

G. W. Barnett, for defendant in error.

CLARK J. All the Judges concurring.

OPINION

CLARK, J.:

This action was brought in the district court of Washington county by the defendant in error to recover from the plaintiff in error the amount paid by the insurance company to one Frederick Imhoff on account of a loss by fire which he had sustained through the alleged negligence of the railroad company. A trial was had before the court, a jury being waived by the parties to the action, at the March term, 1891, which resulted in findings in favor of the plaintiff, and judgment was rendered in conformity therewith. The petition in error filed in this court to reverse said judgment contains the following assignments of error:

"1. The said court erred in overruling and refusing to sustain the demurrer of said defendant in said cause to the petition.

"2. The court erred in refusing to render judgment for defendant in said cause upon the pleadings, and for the reasons set forth in the application and motion therefor.

"3. The court erred in receiving testimony offered by plaintiff in said cause over the objection of defendant.

"4. The said court erred in rendering judgment for plaintiff in said cause, for the reason that the same was contrary to law and was not sustained by sufficient evidence, and was contrary to the evidence.

"5. The court erred in rendering judgment for plaintiff in said cause for the sum of $ 952, that amount being too large, in any event.

"6. The judgment and findings were for plaintiff in said cause, when they should have been for the defendant, according to the law of the land."

The defendant in error insists that, notwithstanding the record shows that a motion for a new trial was duly filed and overruled, this court cannot review any errors which occurred upon the trial, as the assignments of error do not include the overruling of such motion, and such must be regarded the settled rule of practice in this state. (Carson v. Funk, 27. Kan. 524; Clark v. Schnur, 40 id. 72; Landauer v. Hoagland, 41 id. 520; City of McPherson v. Manning, 42 id. 129; Crawford v. K. C. Ft. S. & G. Rld. Co., 45 id. 474; Binns v. Adams, 54 id. 615.) The only questions then presented by the record are as to whether or not the court erred in overruling the demurrer to the petition, the motion for judgment on the pleadings, and the objection to the introduction of any evidence under the petition.

If the allegations of the petition are true, the railroad company was liable for the injuries sustained by Imhoff, and the insurance company was in equity entitled to be subrogated to Imhoff's rights to the extent of the indemnity money paid him by it. The railroad company, however, contends that the insurance company could not maintain this action in its own name, as under our statutes, as construed by our supreme court in K. M. Rly. Co. v. Brehm, 54 Kan. 751, a right of action against a party for negligently and wrongfully destroying property by fire is not assignable. We cannot concur with counsel for the railroad company that the decision in that case is applicable to the one now before the court, as the insurance company did not sue as an assignee, but by right of subrogation. The policy of insurance issued by the insurance company upon the property destroyed was a contract of indemnity, and the insurance company, upon paying to the assured the amount of the policy, became, without any formal assignment or any express stipulation to that effect, subrogated in a corresponding amount to the assured's right of action against the railroad company, which was responsible for the loss. Under the strict rules of the common law, the right of the insurance company to recover against the railroad company could only be asserted in the name of the assured; while under our code, which provides that "every action must be prosecuted in the name of the real party in interest," with certain exceptions therein mentioned, which do not apply in this case, such right may in certain cases be asserted by the insurance company in its own name. (Railway Co. v. Insurance Co., 139 U.S. 223; 24 Am. & Eng. Encyc. of Law, 306; Insurance Co. v. Railway Co., 73 N.Y. 399; Insurance Co. v. Railroad Co., 66 Wis. 58; Railroad Co. v. Fire Ass'n, 55 Ark. 163, 18 S.W. 43; Insurance Co. v. Loud, 93 Mich. 139, 53 N.W. 394; Insurance Co. v. Railroad Co., 41 F. 643.)

The railroad company further insists that, as it appears from the petition that the amount of the loss sustained by Imhoff exceeded the amount alleged to have been paid him by the insurance company, the action could only be brought...