Southern Railway Co. v. Stonewall Ins.

MAYFIELD, J. — This was an action by the appelleeinsurance company against appellant, (defendant) railroad company to recover damages for. the destruction, of a warehouse and a. lot of cotton alleged to have been ignited by fire emitted from defendant’s locomotive.. The property destroyed was insured by appellee to various owners, against loss by fire. After the loss the-insurance company, paid the losses to the insured,- in accordance with its contracts, tailing assignment and. transfer of their respective claims, and thereupon sued appellant, in its own name, for negligently causing the-loss by fire. The defendant demurred to the complaint, but its demurrers were stricken from the file, on plaintiff’s motion, because not filed within time. Trial was-had, which resulted in a verdict for plaintiff for one-cent. This verdict and judgment was set aside, on plaintiff’s motion and a new trial awarded. From the-judgment and order setting aside the verdict and awarding a new trial, defendant appeals. It is insisted that the order setting aside the verdict, was error, for that the plaintiff could not maintain the164 action; that the statute (section 5159 of the Code of 1907) which authorizes the transfer and assignment of claims against railroad companies and suits thereon in the names of the successive assignees, is unconstitutional and void, because a discrimination against railroad companies. It is unnecessary to decide this question on this appeal, for the reason that, without any statute, the insurance company, on paying the insurance for the' property insured and alleged to have been tortiously destroyed by the railroad company, would be subrogated to the rights of the insured or owners of the property, against the railroad company, if any there were, to make good its loss, and could certainly sue in its own name, or in the name of the insured, for its use. The insurance company, in either case, would be the real party plaintiff; and if it should be conceded that the action should have been in the names of the insured, for the use of the insurance company, this would be an amendable defect, and would have to be taken advantage of before verdict. This was not done, however, though it appears that the defendant attempted to do so, but was not within time. — Home Co. v. Oregon Co., 20 Or. 569, 26 Pac. 857, s. c. 23 Am. St. Rep. 151; Conn. Co. v. Erie Co., 73 N. Y. 399, s. c. 29 Am. Rep. 171; Phoenix Co. v. Penn. R. R. Co., 134 Ind. 215, 33 N. E. 970, 20 L. R. A. 405; Johnston v. Martin, 54 Ala. 271; Lucas v. Pittman, 94 Ala. 616, 10 South. 603; American Union Tel. Co. v. Daughtery, 89 Ala. 191, 7 South. 660; Dougherty v. Powe, 127 Ala. 581, 30 South. 524. We see no reason for disturbing the order or judgment of the trial court in awarding a new tidal, and the judgment is affirmed. Affirmed. Dowdell, O. J. and Simpson and McClellan, JJ., concur.