The Peoria Marine v. Frost

• Decision Date: 30 April 1865
• Citation: 1865 WL 2828,37 Ill. 333
• Parties: THE PEORIA MARINE and FIRE INSURANCE COMPANYv.CHARLES L. FROST et al.
• Court: Illinois Supreme Court

37 Ill. 333

1865 WL 2828 (Ill.)

THE PEORIA MARINE and FIRE INSURANCE COMPANY

v.CHARLES L. FROST et al.

Supreme Court of Illinois.

April Term, 1865.

WRIT OF ERROR to Circuit Court of Peoria county; Hon. M. WILLIAMSON, J.

Case brought at January term 1864 by appellants. The facts appear in the opinion

COOPER & GROVE, for plaintiffs in error.

INGERSOLL & PUTERBAUGH, for defendants in error. Mr. JUSTICE LAWRENCE delivered the opinion of the court:

The defendants in error, who were also defendants below, were, on the 13th of August, 1863, in possession of, using, and running the Logansport, Peoria & Burlington Railroad. The freight train passing Westward on that day, set fire to the warehouse of Grafft & Webster, situated in Peoria county near the track, and the building, with its contents, was consumed. The locomotive had no screen or guards on its smoke stack, and the fire thrown therefrom ignited the warehouse. Grafft & Webster gave notice of their loss to the insurance company, plaintiff herein, which in its turn notified defendants, informing them that the company would hold them liable, and at the expiration of the time fixed by the policy, paid the loss. The insurance company now brings its action against the defendants, controlling the road, alleging that the fire was caused by the gross carelessness of their servants. It is admitted that if there was such carelessness, they were liable, and the only question made upon this record is, whether this liability can be enforced in the name of the present plaintiff, or whether the suit must be brought in the name of the owners of the property destroyed, for the use of the insurance company.

This question first arose in England in the time of Lord MANSFIELD. An act of Parliament made the Hundred liable for injury to property by rioters. A house having been burned by them, and an insurance company having paid the loss, it brought suit against the Hundred in its own name. The Court of King's Bench held that the action could not be maintained, and the judgment was affirmed in the Exchequer Chamber. London Assurance Company v. Lainsbury, 3 Doug., 245. The other point arose in another case at the same time. Mason v. Lainsbury, 3 Doug., 60. In that case the action was brought against the Hundred in the name of the owner of the property. The Hundred defended on the ground that the insurance company had already paid the loss. The court held that this was no defense--that the Hundred was primarily liable, and that recovery could be had as if the insurance company had not paid. The recovery was for the benefit of the company. This case was followed in Yates v. Whyte, 4 Bing. N. C., 272, 33 E. C. L., 349.

The same rule has been repeatedly laid down by the most respectable courts of this country. The question was very fully considered in the case of the Conn. Life Ins. Co. v. The N. Y. & N. H. R. R. Co., 25 Conn., 265, and although we should be unwilling to adopt all the reasoning of the court, yet the case is a strong authority against the maintenance of this action. The same point was ruled in Rockingham Mutual Fire Insurance Co. v. Barker, 39 Maine, 253, the court holding that the insurance company could not maintain the action in its own name. The same doctrine is laid down in Hart v. The Western R. R. Co., 13 Met., 101.

The only case quoted by the counsel for the plaintiff in error as holding a different rule, and we presume the only case to be found, is Quebec Fire Insurance Co. v. St. Louis, 1 Lower Canada, 222, and this case is not an authority because decided upon the principles of the law of France.

In the face of this formidable array of authorities, we are urged in the very elaborate argument of the counsel for the plaintiffs in error, to establish for this State, a new rule. If the question were between allowing this suit to be brought, and giving the plaintiff no remedy for an acknowledged though remote wrong, we should be unwilling to refuse the remedy, even though obliged to depart from former precedents. But it is not a question between this remedy and none at all, but between this remedy and another equally efficacious. The rules of procedure at common law, are the results of centuries of experience applied to human affairs by intellects at once comprehensive and acute, and where we find a principle firmly established by a series of decisions beginning with such names as MANSFIELD and BULLER, and followed by such courts as we have quoted, with not a single adverse decision to break the current of authorities, we should hesitate long before we pronounce the rule arbitrary and unreasonable, and therefore, unworthy...