Wunderlich v. Chicago & Northwestern Railway Co.

Winslow, J". Fairly and reasonably construed, the complaint charges that the property of the plaintiffs Wunderlich was destroyed by a fire negligently kindled by the defendant, and that the plaintiff insurance companies had previously issued to the plaintiffs Wunderlich contracts of insurance against fire upon said property, which were in force at the time of the fire, and that said insurance companies had paid the losses under their policies. The demurrer to the complaint was properly overruled, for two reasons: (1) Because it is settled in this state that “ the question of misjoinder of plaintiffs, or whether the complaint, as to one or more of several plaintiffs, states a cause of action against the defendants, cannot be raised by demurrer under any of the grounds allowed by sec. 2649, R. S.” Kucera v. Kucera, 86 Wis. 416. (2) Because it is equally well settled that where insured property is destroyed by fire through the negligence of another, the insurer of such property, who has paid the insured the insurance moneys, becomes subrogated pro tanto to the latter’s claim against the wrongdoer, and should properly join with him as plaintiff in an action for such negligent burning. Pratt v. Radford, 52 Wis. 114. By the Gourt.— Order affirmed.