Scandinavian Mutual Insurance v. Chicago, Burlington & Quincy Railroad

Letton, J. Plaintiff, a mutual insurance company, issued a policy of insurance to Mrs. H. P. Johnson for $300 insuring “grain in barn, granaries, cribs or in stacks, * * * all while located and contained on the N. E. quarter of section 20, township 6, range 16, county of Kearney.” The policy provided, among other things: “If the interest of the insured member be or become other than the entire, unconditional and complete and sole ownership of the property, * * * then .and in such case the policy or certificate of insurance shall be void unless otherwise provided by agreement approved by the secretary and indorsed on policy.” A fire set by an engine of the defendant consumed grain in stacks upon the east half of the northwest quarter of the same section, which was owned by one C. M. Johnson. Plaintiff and her son and agent, John P. Johnson, as tenants, owned an undivided share in this grain. The petition alleges that plaintiff, in accordance with its usual custom to pay losses occurring on other land than that described in the policy, paid the loss to Mrs. Johnson, and by reason thereof became subrogated to [259] her right against defendant; that John P.' Johnson filed a claim with defendant for the loss of 223 bushels of wheat on the farm, and that defendant paid him in full for all damages to all of said property, including the share of C. M. Johnson, Mrs. H. P. Johnson and John P. Johnson, excepting only such loss or damage covered by insurance, which insurance was the insurance covered by the policy hereinbefore set out. The receipt given by John P. Johnson to defendant recites that the payment was in full settlement of all claims resulting from the fire, and that “said fire destroyed wheat, ladder, pitchfork and other property, all of which was owned by me and on which there was no insurance and no mortgages.” It is alleged that the agent of defendant was informed of the insurance on the property, and deducted in the settlement the amount for which the insurance company, plaintiff, was liable, to wit, $160.10; that defendant is now estopped from denying the validity of the claim, and “that by reason of the payment of said loss sustained by the said Mrs. H. P. Johnson, C. M. Johnson and John P. Johnson, this plaintiff has become subrogated” to a right of action against the defendant for the $160.10 paid by it. A demurrer to the petition was sustained. Plaintiff elected to stand upon .the petition, and the action was dismissed. Plaintiff appeals. The policy of insurance did not cover the grain destroyed, but only grain ‘ ‘ while located and contained ’ ’ on another tract of land. The policy also provided that, if the interest of the insured was other than the entire and sole ownership of the property, the policy should be void unless by agreement indorsed on the policy. The plaintiff was under no legal liability to pay the loss, and the payment made by it was purely voluntary. The law is well settled that one cannot by means of a mere voluntary payment be subrogated to a right which the payee may have against another. Washburn v. Osgood, 38 Neb. [260] 804; McKinnon v. New York Assets Realization Co., 217 Fed. 339. There is nothing in the petition to show that plaintiff was induced to pay the money by a promise on the part of defendant to repay the same, or that it was knowingly induced to alter its position to its detriment by any act of defendant. In short,'no act is pleaded which raises an estoppel against the railroad company. The petition does not state a cause of action, and the judgment of the district court must be Affirmed. Day, J., not sitting.