The Phenix Insurance Company v. The Pennsylvania Railroad Company

• Court: Indiana Supreme Court
• Writing for the Court: Coffey, C. J.
• Citation: The Phenix Insurance Company v. The Pennsylvania Railroad Company, 33 N.E. 970, 134 Ind. 215 (Ind. 1893)
• Decision Date: 07 April 1893
• Docket Number: 16,195
• Parties: The Phenix Insurance Company v. The Pennsylvania Railroad Company

33 N.E. 970

134 Ind. 215

The Phenix Insurance Company v. The Pennsylvania Railroad Company

No. 16,195

Supreme Court of Indiana

April 7, 1893

From the Kosciusko Circuit Court.

Judgment reversed, with directions to the circuit court to sustain the demurrer to the second paragraph of the appellee's answer.

C. P Drummond, for appellant.

A Zollars, J. Morris, and B. T. Calvert, for appellee.

OPINION

Coffey, C. J.

So much of the complaint in this case as is necessary to present the questions discussed by counsel alleges, substantially, that in the year 1889, one William W. Warnes was the owner of a large quantity of hay in Marshall county, Indiana, stacked near the right of way upon which the appellee's railroad is constructed; that the appellant, as a corporation engaged in the business of fire insurance, executed to the said Warnes a policy of insurance insuring him against loss, by fire, on account of said hay; that by the negligence of the appellee in failing to provide its engines with proper spark arresters, the sparks from such engines were permitted to escape, by means of which they set fire to said hay, whereby the same was destroyed; that by reason of the destruction of the hay, the appellant was compelled to and did pay to the said Warnes the amount of said policy, to wit, three hundred dollars.

Prayer that the appellant be subrogated to the rights of Warnes as against the appellee, and that it have judgment for the sum of three hundred dollars.

To this complaint the appellee answered that the appellant was a foreign corporation, organized under the law of the State of New York, and doing business in the State of Indiana; that the hay mentioned in the complaint, and for an injury to which this suit is brought, was insured, as is alleged by the appellant, by a certain policy or contract of insurance entered into at -----, in the State of Indiana, with one -----, claiming to be the duly authorized agent of the appellant for the county of Marshall, in the State of Indiana; that the appellant had not then, nor has it since furnished to the auditor of this State the sworn or any other statement of its president or secretary, as required by the laws of the State of Indiana, then and still in force, nor has it at any time procured from the auditor of State a certificate authorizing the said ----- to transact business in Marshall county, nor has the appellant at any time filed any such certificate or copy thereof, or any renewal thereof, nor any certified copy of any statement of the president or secretary of the appellant in the office of the clerk of the circuit court of said Marshall county, as required by law.

To this answer the court overruled a demurrer, and the appellant excepted. The appellant failing and refusing to plead further, the appellee had judgment for costs.

The only error assigned calls in question the correctness of the ruling of the circuit court in overruling a demurrer to this the second paragraph of the appellee's answer.

It is contended by the appellee that there was no error in overruling the demurrer to this answer; for, assuming for the sake of the argument that it was bad, the court did not err in overruling the demurrer, because the complaint does not state a cause of action. It is said that the complaint is bad for the reasons:

First. That it does not allege that the hay therein mentioned was of any value; and,

Second. Because it is shown, on the face of the complaint, that the owner of the hay was guilty of contributory negligence in stacking his hay near the appellee's railroad.

The complaint does allege that the hay therein mentioned was of "great value." While it would have been better pleading to allege that the hay was of some specific value, yet it is not so defective as to render the objection now urged available to the appellee. It was, perhaps, subject to a motion to make it more specific, but such objection can not be taken by demurrer.

The complaint contains the general allegation that the hay was destroyed without the fault or negligence of the owner. There are no specific allegations which would tend to destroy this general allegation of fact.

Where property is injured or destroyed by the negligent act or omission of one, under such circumstances as that the owner of the property may maintain an action for such injury or destruction, it seems to be settled, both upon principle and authority, that if such property is insured, such insurer, if compelled by reason of the policy to make good the loss to the owner, may be subrogated to the rights of the owner, and recover from the wrong-doer a sufficient sum to reimburse him for such outlay, provided the damages are sufficient to equal the sum paid. Hart v. Western R. R. Co., 13 Met. (Mass.) 99; Whitehead v. Hughes, 2 Cr. M. 313; Phillips v. Claggett, 11 M. & W. 84; Sheldon on Subrogation, 221-230; Insurance Co. v. Fidelity Trust Co., 14 A. 791; Pratt v. Radford, 8 N.W. 606; Connecticut Fire Ins. Co. v. Erie R. W. Co., 73 N.Y. 399; Swarthout v. Chicago, etc., R. W. Co., 49 Wis. 625, 6 N.W. 314.

The complaint, in our opinion, states a cause of action in favor of the appellant, and against the appellee.

Upon the subject as to whether contracts entered into in this State by foreign corporations, when they have failed to comply with our statutes prescribing their duties, are void or otherwise, our adjudged cases are in the utmost confusion. It is utterly impossible to reconcile them.

In the case of Rising Sun Ins. Co. v. Slaughter, 20 Ind. 520, it was held that all such contracts were void, but this case was, in effect, overruled by the later cases of Deming v. State, 23 Ind. 416, and New England Fire, etc., Ins. Co. v. Robinson, 25 Ind. 536.

In the case of Wood Mowing, etc., Co. v. Caldwell, 54 Ind. 270, the case first above named is expressly recognized as being overruled by the two last cases named, but notwithstanding this fact, it was again cited with approval in the case of Cassaday v. American Ins. Co., 72 Ind. 95.

A careful examination of our cases will disclose the fact however, we think, that there is now no case in this State which holds that a policy of insurance issued to one of our citizens by a foreign insurance company which has failed to comply with our statute upon the subject of foreign insurance companies, is void. There is one...