Potter v. Norwood Lumber Co.

Walker, J., after stating tbe facts as above: We will consider tbe assignments of error in tbe order they are stated in tbe record: 1. It was competent to prove tbat tbe engine emitted many sparks immediately before and after tbe burning, so as to sbow its defective condition, these sparks having fallen upon.tbe foul right of way and caused tbe fire. Knott v. R. R., 142 N. C., 238; Whitehurst v. R. R., 146 N. C., 588; Armfield v. R. R., 162 N. C., 24; Cheek v. Lumber Co., 134 N. C., 225; Williams v. R. R., 140 N. C., 623; Cox v. R. R., 149 N. C., 117; Currie v. R. R., 156 N. C., 419; Aman v. Lumber Co., 160 N. C., 370; Perry v. Mfg. Co., 176 N. C., 68, and Williams v. Camp Mfg. Co., 177 N. C., 512, and cases cited. It can make no difference, as tbe eases above sbow, whether tbe sparks came from a defective engine or dropped on a foul right of way, as either act of negligence was sufficient to carry tbe case to tbe jury. Knott v. R. R., supra. 2. There was testimony to tbe effect tbat Potter was seen raking up trash, as if to set it afire, just before tbe fire started, and, in order to refute tbe charge, it was certainly competent for him to deny or explain it, and to show tbat be was not trying to burn tbe property for tbe insurance. Tbe case of Lytton v. Marion Mfg. Co., 157 N. C., 331, where it was attempted to prove tbat tbe defendant was insured, has been called to our attention, but it does not change our view, as we have decided tbe case, with respect to tbe insurance, upon tbe ground tbat tbe defendant was charging plaintiff, impliedly, at least, with having burned tbe property to get tbe insurance, and plaintiff bad tbe right to reply to tbe accusation, and also to explain what was stated by one of tbe witnesses, tbat be was seen at tbe lumber piles and it appeared as if be was raking up trash as if to burn it, or words to tbat effect. Besides, there was no objection when tbe insurance company was made a party. It claimed a part of tbe fund, which has been allowed in tbe judgment. If it be conceded tbat tbe action must be brought in tbe name of tbe insured, when tbe insurance is less than tbe actual loss, it appears in this case tbat tbe amount of tbe policy has been paid by tbe company to tbe insured, and it is equitably entitled to reimbursement. 3. Tbe defendant cannot now be allowed to assign as error tbe order of tbe court making tbe insurance company a party, as it made no objection to it at tbe time tbe order was' made, and, besides, we cannot see bow it is prejudiced by tbe order, as it will be protected, if it pays tbe judgment for tbe damages recovered by tbe plaintiff, J. W. Potter. If tbe insurance company gets a part of tbe money, of what concern is tbat to tbe defendant? It makes no difference who gets tbe money if tbe *140 defendant is fully discharged. Newsom v. Russell, 77 N. C., 277, where it was said by Justice Bynum: “What interest is it to the defendant if he is absolved from further liability by payment of his debt upon a judgment regularly obtained against him ?” 4. The evidence admitted as to the payment of the insurance did the defendant no harm for the reason just stated, and, also, because it was not denied that a policy had been issued, the defendant even charging that plaintiff had burned the property to get the insurance money. All this evidence, taken connectedly, was competent to rebut this serious imputation against the plaintiff. The insurance had been taken out by J. M. English & Company, without Potter having knowledge of it up to the time of the fire. The loss, if any, was payable to I. M. English & Company, and the evidence proved how much of the recovery should go to the insurance company, and this amount ($2,000) was directed in the judgment to be paid to the company. Powell v. Water Co., 171 N. C., 290. 5. The remaining exception is without merit. What Potter paid Stovall for the timber, not the lumber, was very slight proof of the latter’s value, if proof at all, and its exclusion worked no substantial harm to the defendant, especially in view of the fact that Stovall, the same witness to whom was put the question, as to the price of the timber, was examined, at length, as to the quantity and value of the lumber, and there was elicited far more definite and accurate information as to how much lumber was on the yard. The defendant was evidently not prejudiced by the court’s ruling. S. v. Stancill, at this term, 178 N. C., 683 (100 S. E., p. 241). There is no error, and it will be so certified. No error.