360

FEDERAL REPORTER, vol. 48.

SPBINGFIELD FIRE & MARINI<) INS. Co. v. RICHMOND & D. R. CO., (SAVANNAH FIRE & MARINE INS. CO., Intarveners.)
(Oircuit Oourt, D. South Oarolina. December .9,1891.)
1. PARTIES-AcTlONS ():l!'ToRT-INsuRANCE.

Property covered' by .many different insurance policies' was destroyed t11rough the negligence of a railroad company, and a few of the insurers paid their proportion of the loss, taking an assignment of a proportional patt of the claim against the railroad company. Suits were brought against the other insurers, pending which one of the. which bad paid sued the railroad on its aRsigned cause of action, whereupon another one petitioned to be made II party plaintiff, and that the insured be also joined as plaintiff. Held that, as the latter had the legal title to the cause of action, and tbe predominant beneficial interest therein, it could not be compelled to join as plaintiff agaiilst its will. notwithstanding that the cause of :action, being for a tort, was indivisible, and only one action could be maintained tQ.ereon.
LAWS.

, Tho' right to join the insurer, either as plaintiff or defendant, cannot be asserted under ,Code'Civil Proo.. S. C. § 143, proyhling that "when oomplete determination of a controversy cannot be· made without the presenCe of other parties the court must cause them to be brought in, "as this section must be read in connection with section 140, which provides that I'oftha parties to an 1Io0tionthose who are united in interest must be joined as plaintiffs or defendants; but if the consent of \lnyone Who should have been joined as plaintiff cannot be obtained he may be made de,and by thus reading them it is apparent that their provisions were denved from the praotice in equity, and therefore can have no application to an 00tionat'laW in a federal oourt.

At Law. Action by the Springfield Fire & Marine Insurance Company against the Richmond & Danville Railroad Company. Heard on the petition of the Savannah Fire & Marine Insurance Company to be made a party plaintiff, and to have the Petzer Manufacturing Corupany also joined as plaintiff.· Petition denied. Abney & Thoma8, for plaintiff. Cothran, Wel18. An8el & Cothran, for defendant. JUlius H. Heyward, for petitioner. SIMONTON, J. This is a case of novel aspect. In order to understand is necessary. The Pelzer Manufacturing Company had over a thousand bales of colton stored with Cely· Bros., warehousemen. The cotton was insured in bulk in the name of Cely Bros., as warehousemen, in. several insurance companies, for some $45,000 in the aggregate,· each insurance company taking its own several risk. 'fhe cotton was all consumed at one time by a fire originating, it is said, from sparks oCa passing locomotive belonging to the Richmond & Danville Railroad Company. It is also alleged that the warehouse was on the right of way of the Richmond & Danville Railroad. The cotton having been totally destroyed, Cely Bros. assigned to the Pelzer Manufact'uring Company all the policies in which the cotton belonging to it was insured. This company proceeds to enforce them. One of the com· panies, the plaintiff in this action, paid its share of the loss to the Pelzer Manufacturing Company,-some $4,500. Taking assignment from the ,Pelzer Manufacturing Company of so much of its claim upon tlie railroad company as would cover this sum, it brought suit in the

it a

SPRINGFmLD FIRE &; MARINE INS. CO. 'V. RICHMOND &; D. R. CO.

361

state court thereon in its own name. Section 1511 of the General Statutes of South Carolina makes a railroad company responsible for property destroyed on its own right of way by sparks from a locomotive. The defendant removed the cai!e to this court. The cause being on the docket awaiting trial, a petition is filed by the Savannah Fire & Marine Insurance Company, stating that it also was an insurer upon so stored with Cely Bros., and destroyed by fire; that this lot of it had paid the full amount of its risk-some $2,800-to the Pelzer Manufacturing Company; that the prosecution of the suit as it stands may affect its rights. It prays that the complaint be so amended as to protect its right. The order proposed directs the summons and . complaint to be so amended that the Pelzer Manufacturing Company be made a formal party plaintiff in this action, and that judgment be demanded for the full value of all the cotton owned by the Pelzer Manufacturing Company and destroyed by fire, as alleged in the complaint. The plaintiff does not seem to object to the motion, that its rights are not affected. The defendant filed l\ demurrer to the petition as if it were in aquity. At all events, it objects. Neither of them were present at the motion for the amendment. The conn;. Bel for the Pelzer Manufacturing Company was present without notice,andprotestedagainst the proceeding, subsequently filing his written protest. This 'was put, among other grounds, on the fact thatit had been served with no 'summons, notice, or other proceeding. The position of the plaintiff is this: The Pelzer Manufacturing Company has tha right to obtain' from the Richmond & Danville Railroad Company damages for the· destruction 'of this cotton. The insurers who indemnify the manufacturing company and pay the are subrogated to the remedies which the assured had against the railroadcbm;. pany, (Hall v. Railroad Co.· 13 Wall. 370,) and to the use of the name of the assured in any -suit to this end, (Railroad v. Jurey. 111 U. S. 595,4 Sup. Ct. Rep. 566;) in which suit he cannot be affected by any act of the assured disclaiming, forbidding, or seeking to diatrtil:ls or release the suit, (Hart v. Railroad OJ., 13 Mete. [Mass.] 100;) but that this subrogation is to the rights which the assured had, no greater, no leas, (Liverpool &; G. W. Steam Co. v. Phenix 1m. Co., 129 U. S. 397, 9 Sup. Ct. Rep. 469;) and, as the action of the assured is upon a tort,-a single and indivisible right of action,-only one suit can be brought, (LEtna 1n8. Co. v. Hannibal &; St. J. R.Co;; 3 Dill. 1;) that the present suit may exhaust the remedy, and thus preclude it; that its only protection is a suit in the name of the Pelzer Manufacturing Company These positions seem to be sustained by the authorities. It would be premature on this motion to decide them. Assuming, for the purposes of this case, that they are well taken; we are met by a condition of facts which occur in none of the cases The plaintiff and the petitioner have paid but a small proportion' of the entire loss. They may be-personally I have no doubt that they areentitled to share pro tanto in' any tights the Pelzer Manufacturing C9'mpany may have against the railroad company. It may become· necea-

862

FEDERAL

vol. 48.

for them to obtain the Use of the name of the company in securing their rights. I have no doubt that at the proper time and ,inappropriate proceedings they can obtain the aid of the court to this end; but this cannot be done now, nOr under this form of proceeding. The court hesiCompany to lend its name in this case in the tates to (io,mpelthe manner proposed. This lot of cotton was insured, not for its full value, in SOme 15 three paid voluntarily anu one by compulsion. Suits are nQwpending in the circuit and supreme courts of South Carolina against others. During the pendency of these suits the Pelzer Company to the insurance companies that if the loss bepaid,,itwould begin: against the railroad company, and either conquct it for or turn,'it them. This offer was not accepted. When·til;e loss Manufacturing Company (assuming that the railroad comPLl.ny,' is liable) had its remedy either against the insurancE! companies on: :their'several contracts, or against the railroad company.under the ·. :It had the right to. determine for itself, and to elect its course. , Thisl'ight it exercised and is now using. '. The court canno.t. interferE! with: the ,right and oompe1 it to make use of· both remedies.:Story ,Eq.Jur·. 640.: Notwithstanding that each of the four compll.llieshaa.paid iUl share of the loss, and to this extentllhares .with the PelzeJ1,(i)oQlpanytheQ!lloimu.pqIl the railroad· c9mpany. py far the largest proportion oithe lQSSUtstill ,porne by that compl:my.If it be made a party in. this case it could he' in .Qosensea nominal party, whose suboQhbeaffected by the result. The court cannot Compel..a peraon to avindjc$tion of his rights as· plaintiff" plaintitrcomesliato.CQurt; he brought in. Weretbis eompanymade would be the party It would be it plaintiff, but to make it use the complaint, prepared, alldamendedby a,nother party, and to intrust its case to c01,1Osel selected by that party..We cannot make the companies who paid apart ofthe.1oss;domini litis. :N'or is it within the power of the courUo force'a party in·. who must be dominus litis. Aqueful search into all the authorities has fa.iled to discover a case at law.in which one having a substantial right,. a beneficial interest, as well.as the legal title, in a cause of action, alone of.with others, has been compelled to come in and bpngor unite in an:action as plaintiff. , The counsel for the party intervening calls attention to the provisions of the Code of Civil ProcEXiure of South Carolina, § 143: "When complete determin/;\tion of a controversy cannot be made without .the presen.ceof other parties the court must cause them to be. brought in." But we mustreacl this in connection with section 140 of thesan:le Code: "Of the parties to a,n, action those who are united in interest must be joined aa plaintiff$,.Qr defendants: but, if the .consent of any 0Ile who should hllvebeon joined as plaintiff cannot be obtained, he maybe made de'r,' .

-,ButthQ CIlI'{Q ilMlaw CRsejp tort.· There is no precedent of an action at the tort-feasor i,s joined with the. principaLsufferer asapi1l'ty!,defencllWtli pfoyisioUSQf thatCoq.eare, derived from

JOHNV. FARWELL CO. V.HATHEI8.

863

the practice in equity, and have no place whatever on the law side of this court. Hurt v. HollinglfWorth, lOOU. S. 100. Indeed, the present application itself proceeds upon practice in equity. The petitioner is entitled to and seeks to enforce an equity. The issues in the casaon the docket are between the Springfield Fire & Marine Insurance Company and the Richmond & Danville Railroad Company; With the issueS-'that is, whetherlhe defendant shall pay certain damages to plaintiff-the petitioner has no direct concern. It is directly interested in the principle upon which such damages would be allowed or refused, as it is in every case analogous to its own. The counsel for the petitioner insists that he has a direct immediate interest in this suit, and that its prosecution in its present shape may preclude his client entirely. The action is upon a tort from its nature indivisible. Arecovery in an action upon it precludes any other. The petitioner stands precisely in the same plight as the plaintiff. The plaintifrs suit may preclude it. If this position be correct, it may demonatrate that the plaintiff has no standing in court. If it does not do this, it at least shows that the petitioner has a strong equity, which will be protected on the other side of this court, which cannot be protected on this side of the court. And, in order to obtain the wishes of the petitioner, the Pelzer Manufacturing Company must be a party to such a proceeding. Being such party, its rights must also be considered, and, if the equities are equal, the legal right will turn the scale. Let the petition be dismissed without prejudice. The motion to amend is refused also, without prejudice.

JOHN

V.

FARWELL

Co.v.

MATHEIS

et ale

(Circuit Court, D. Minl1.eBota, Third DiviBion.l)ecember 10, 1891.).
BTATUTES-ENAOTlolBNT AND APPROVAL-"BIlSSION" OP LBGISLATuRE DEPINED.

Canst. Minn. art. 4, § 11, providing that within three days after the adjoummen\ of the legislature the governor may approve, sigo, and fI.le in the office of the secretary of litate "any act passed during the last three days of the session, and the same shall become law, "meaos the last three davs of for bUliiness, and does not iucinde Sunday; aod hence a bill passed on Satul'day was within the provistcw, though the adjournment did not occur until the following Tuesday.

At Law. Action by the John V. Farwell Company against John Matheis, and Theodore· Draz, garnishee. On motion to discharge the garnishee. Granted. Edward P. Sanborn, for garnishee. Howard L. Sntuh and LuBk, Bunn &.Hadley, opposed.
NELSON, J .. The defendant, Matheis, made an assignment under the insolvent laws of .the state of Minne50tato Theodore Draz, assignee. The plaintiff seeks to reach by garnishment proceedings the property held under the assignment; and the assignee, setting up the facts of the assignment,and the possession of the property, and presenting the; deed'