Swarthout v. Chicago & Northwestern Railway Co.

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 occasioned. Hart et al. v. Western R. R. Corp., 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 latter to his rights, giving such insurer full authority to sue1 the party causing the loss, in his name.

But it is insisted that the facts stated show that the plaintiffs have no right to join in bringing the suit, and that there is an improper joinder of causes of action. It is said, if the defendant is liable at all, it is separately and distinctly liable to each insurance company to the amount paid on its policy. But it seems to us it.would be an intolerable rule to allow each insurance company to bring a separate suit. The railroad company might well say, were this attempted: The claim is indivisible; there is but one wrongful act cumplained of, one loss and one *629 liability. It might well insist that the whole matter should be litigated in one action. And -what objection there can be to allowing the owner to unite with the insurance companies in bringing one action to determine the liability of the defendant, we fail to perceive. Under the old practice the action would probably have been brought -in the name of the assured for the benefit of all concerned; but the code requires the action to be brought in the name of the real party in interest. Now it appears that Swarthout has made an assignment in writing to each insurance company of a part of his claim against the railroad company for the alleged wrongful destruction of his property. It is obvious, if one of the insurance companies may bring a separate suit for the amount of its claim, each may; and as the aggregate amount of the policies falls short of the actual loss, Stoarthout may sue for the balance. As we have said, a rule of law which would allow' this to be clone would operate most oppressively upon the- railroad company. Eor a single wrongful act, which gave rise to but one liability, it might be harassed with a dozen different actions. The contract of insurance is treated as an, indemnity, and the insurer as a surety who is entitled to all the remedies and securities of the assured, and to stand in his placé. And we certainly cannot see that any principle of -law will be violated in allowing the different insurance companies to unite with the owner of the property in an action to enforce the liability of the railroad company in this case.

The case of School Districts v. Edwards et al., 46 Wis., 150 , presented an analogous question. There, two or more school districts brought an action to recover moneys in the hands of the defendants, belonging to such districts. Mr. Justice Lyon, in the opinion, says: “The fact that the several school districts are entitled to the money in unascertained and probably in unequal proportions, is no impediment to this action. That is a matter between the districts, with which the appellants have no concern: It is sufficient for the *630 purpose of maintaining the action, that they are jointly entitled to the money claimed.” Page 158. Now it is apparent that there was the same reason-for saying in the case just cited that the defendants were liable, in separate actions, to each school district, as there is for taking the objection that the defendant company is not jointly liable to the plaintiffs in this case; and to hold that these plaintiffs cannot, upon the facts stated, unite in one action to enforce what is really but one liability or cause of action, but that each must bring a separate suit, would open the door to a litigation which would be most oppressive to the defendant, and which would produce much mischief. For these reasons we think the first ground of demurrer not well taken. Our views upon the first point, of course, dispose of the other grounds of demurrer.

By the Court. —■ The order of the circuit court, overruling the demurrer, is affirmed.