rend(!f.him:lnfamousln the community. But the charge, ordl;ll' W pbnoxious to the law, must be of an offense actually committed or attempted; a pUnishable otfense, and not of an offense' existing in contemplation or intention merely." . . .
In 60 Iowa, 251, 14 N. W. 785, the defendant had said to .the plaintiff: "I belleve you will steal. .You are religiously and politicallydjshonest."The court said:
"But the. expression 'you wlll steal' is not to be regarded as an allegation did steal or has stolen. It eXI;lresses the thought that in the future he ,will commit the crime; that he possesses the qualities of heart which wlll lell.? to the crime, and the purpose to commit it, when opportunity therefor arises. It is plain the words do not imply a charge of the crimeC01llmitted in the past." I \
The same principle was 'held applicable in McKee v. Ingalls, 4: Scam; 30, where the words declared upon were: "You are a damned thief. - If yOll have got Iilot,\ey, you'stole it. I believe you area danlned' thief. I will steal." The judgment is affirtned,with coststo the defendant in error.
NORWICH UNION FIRE INS. SOC. v. STANDARD OIL CO. et aI. (OircuIt Court ,of Appeals, Eighth Circuit. January 29, 1894.) No. 311. ..r IEs, An insurance company Sl1brogated to the rights of the assured by paying a loss caused by the wrong of a third person cannot maintain an action against the latter in its own namej it the loss exceeds the amount of the insurance paid, but in such case the action must be brought in the name of the insured.
In Error to the Circuit Court of the United States for the District of Kansas. This was an action by the Norwich Union Fire Insurance Society,ofNorwich, England, against the Standard QU.Company and the Goodlander Mill Company, to recover the am<mnt of certain insurance paid by the plai:qtifI to the defendant mill company, upon the ground that the property was burned through the culpable negligence of the defendant oil;company_ A demurrer to the complaint was sustained, the court (June 6, 1892) rendering the following opinion:
RINER, District Judge. "Tltis case is bei'ore the court on demurrer to the plaintiff's petition. It is alleged .in the petition that in the year 1887 the Norwich Fire Insurance issued a policy of insurance, in the sum of $3,000, .to the GoodlanderMill Company,-a corporation otganized under the laws of Kansas, and doing bUSiness at Ft;Scott; that the Insurance was upon certain wheat owned'by ,tlfe mill compl;lny. 'l'he petition further shows that the G,erman Fire Company: had also issued. a policy of insurance in the same the mlll company, upon wheat. The last-mentioned polley havIng been assigned to the plaintiff in this case, plaintiff brings this suit to recover the. amount of both polic1es,-$6,OOO. The petition further shows. that after the issuance of the policies of insurance ;the wheat was destroyed by fue,-and that these insurance companies paid the loss In the amount of their respect1¥e .policies, $3,000 each, and took an'Rssignment In wr1t1ng of ,whatever claim the mill company might bave
NORWICH UNION FIRlj; ,INS. SOC. V. STANDARD OIL CO.
It is further alleged that the fire occurred by reason of the negligence of
against the defendant because of tlle loss to the amount of their policies.
the defendant the Standard Oil Company. The facts stated in the petition are to the effect that the defendant shipped a tank car of petroleum from Lima, Ohio, consigned to the gas company at Ft. Scott, which car was placed upon a side track near the mill and' elevator of the Goodlander :Mill Company, and that the employes of the gas company attempted to unload the car, but, because of the defective construction of the car, the oil escaped, took fire, and the mill and its contents were destroyed. It appears upon the face of the petition that the wheat destroyed by fire was of the value of $20,000, and that there were other policies of insurance upon the wheat, in addition to those upon which this suit is based. The written assignment given by the Goodlander :Mill Company to the plaintiff in this case and to the German Fire Insurance Company fixes the value of the wheat destroyed at $40,000. While this assignment is not in the body of the petition, a copy of it is attached to, and made a part of, the petition. Hence, it is clearly shown by the petition that the amount here sued for is but IV small part of the loss actually sustained by the Goodlander Mill Company in the destruction of its property by the fire alleged to have been caused by the defendant's negligence. "The question, therefore, raised by the demurrer, is whether or not the plaintiff can maintain an action in its own name against the party through whose negligence the fire is alleged to have occurred, when the petition shows that the whole loss was far in excess of the amount covered by the policies of insurance which are made the basis of this action. In other words, the Goodlander :Mill Company having sustained the loss of its property by and through the negligence of the defendant, and the insurance companies having paid the amount of their policies, thereby becoming subrogated to the rights of the Goodlander :Mill Company, to the value of their policies, can they maintain an action in their own name, when it appears upon the face of the petition that their claim is but a small part of the loss for which the Standard Oil Company is liable to the Goodlander :Mill Company, if liable at all? I think it must be conceded that but one wrong is shown by the petition in this case, and that that wrong is done to and suffered by but one party,-the Goodlander :Mill CompanY,-and that, if the mill company had brought the suit, it would have been required to include its entire claim in one cause of action. The mill company having but one cause of action against the defendant, can that cause of action be divided among the parties who, by payment of policies of insurance, become subrogated ,to its rights to the extent of their policies, and a number of causes of action be thus made out of the one cause originally existing in favor of the mill company? The wrong complained of is the destruction of the mill company's property, and the right of action exists, if at all, because of the negligence of the defendants in using a defective car. ThUS, originally, there was but one cause of action and but one liability. The defendant was liable for but one thing, namely, its act of negligence. Its act was but one wrong, but one tort, and for that wrong the mill company had its cause of action, but was obliged to embrace its entire claim in one action. "'hile it is true that the plaintitr is subrogated to the rights of the mill company against the wrongdoer, to the extent of the money paid upon its policies, yet it can have no greater rights than the mill company originally had. The mlll company could not have divided its cause of action, and brought a dozen suits for the purpose of recovering for the one wrong; and I think, within all of the cases, that the parties cannot, by taking the course pursued in this case, divide a single cause of action, and bring a dozen or more suits to recover on a single cause of action. If the plaintiff is allowed to maintain this action, then each insurance company holding a policy on this property could maintain a separate action for the amount of its policy, and if the policies, altogether, did not amount to the value of the property, the mill company could still maintain an additional action for the balance; thus dividing the single cause of action existing in favor of the mill company lnto a dozen or more suits, and reqUiring the defendant to defend in a dozen or more suits, to have the one question determined, namely,
or caused tile loss, tor' upon this question: alone depends the right of recovery In favor of any of the parties in interest, Whether their Interest be by way of sUbrogation or otherwise. The court of minois, 'In discw;,sing this question, say: 'The wrongdoer is liable to the owner,of the property for the injury he has done him, and,althougha wrongdoor,'ft is still hiS riglit to have the loss adjusted" in a single suit.· Is a clelU.'8tatement of the rule. By taking this course the This, questioD'O'l the llablllty of the defendantcahbe determined in a single suit; and if, 111 the trial of that action; it shall be determined that liability eXists, then, Wheti'the judgment I!!I obtained, the court can direct 'how the proceeds of that,jddgDIent'Shall be among tM parties claiming in it, multiplicity ofsults. Tbisl'ule, it seemsfu me, is reasonablY,and fUllysuppoi't,edbY:,aUthority both in England and, this country. See Aetnli Ins; 00. v. Hanhibal & St. 'J. R. Co., 3 Dlll. 1, Fed. Cas. No. 96; Hall v; RaiIroad Co., 13 Wall. 367; Insurance v.Frost, 37 TIL 334; Hart 'v:' Railrolld 'Corp., 13'Metc. (Mass.) 99; Baird v. U. S.. 96 U. S. 430; Marine Ins. Co.' v. St. LoUiS; I, M. &S. Ry. Co., 41 Fed. 643. In the caseilast cited, Judge Caldwell' 'states the rule' as follows: 'Where the value of the property exceeds the insUJ'ance money paid, then the suit must be brought in the name of the assured,'-and cites cases in 3 Dill. as authority upon tbllt question. " deem it necessa,ry' to' discuss the second proposition suggested , "I do at tbe argument, viz. that the' action must be brought in the name of the real partY' ill interest. This' question was disposed of in the case of Aetna Ins. 00. 'V. Hannibal & St. J.R. Co., 3 Dill. I, Fed. Cas. No. 96. The demUrrer 'will' be sustained."
Plaintiff sued out a writ of error, and the judgment of the circuit court is now affirmed. .
Tbe GOo(llander Mill Company owned a mill at Ft. Scott, Kan., which, tOgethel'. with its ,contents, including $60,000 worth of wheat, was destroyed by fire on 19th day of November, 1887. ' The plaintiff in error had to tbe mill company a poUcyof insurance for $3,000 on the wheat in the mill. Tbis polley was in force when the wheat was burned, and the plaintiff paid the. amount tbereof to the mill company, and brings this action against the Standard on Oompany to recover the amount paid to the mill company, upon the ground thll,t the wMat was burned through the culpable negligence of. the oil company. . The complaint avers that the value of the wbeat burned was $60,000, and tba,t, "in addition to the policy taken out in the plaint.trcompany, there were ten other concurrent fire insurance policies talt.en out in other COlDpanl./ils, equaling three-fourths of the value of the wheat, all,d also otber policies on the buUdings in which the said wheat was contained." It. is further averred in the c()mplaint that the plaintiff requested the mill Qompany to join it as a party plaintitr in this suit, whicb it refused to qo, whereupon the plaintitr made it a defendant, and that prior to the commencement of tbis suit the mill company brought an action against the Standard on Company, Which was then pending, to recover the value of the mill and its contents, upon, the ,ground that the negligence of the oil companj occasioned the loss,' but that the mill company did not, in that action, seelt to recover the amount paid to it by the plaintiff in satisfaction .of its policy. Tliere was a to the complaint, which was sustained, and the plaintUr sued out this. writ of error. Judge Riner's opinion snstaining the demurrer is reported filupra.
E. F. Ware, (Charles S.Qteed, James Willis Gleed,D. E. Palmer, arid C. HamUton, on brief,) for plaintiff in error. A. A. Harris and Oliver H. Dean, (William Warner, William D. McLeod, and Henry E. Harris, on brief,) for Standard Oil Company, in error. Before CALDWELL and SANBORN, Circuit Judges, and THAY· ER, District JUdge.
NORWICH UNION FIRE INS. SOC. V. STANDARD OIL CO.
CALDW-:ELL, Circuit Judge, after stating the facts as above, delivered the opinion of the court. The circuit court sustained the demurrer to the complaint on the ground that the plaintiff could not maintain the action in its own name, and the correctness of this ruling is the only question we find it necessary to consider. When an insurance company pays to the assured the amount of a loss of the property insured, it is subrogated, in a corresponding amount, to the assured's right of action against any other person responsible for the loss. This right· of the insurer against such other person is derived from the assured alone, and can be enforced in his right only. At common law it must be asserted in the name of the assured. In a court of equity or of admiralty, or under the modern codes of practice, it may be asserted by· the insurance company in its own name, when it has paid the insured the full value of the property destroyed. St. Louis, L M. & S. Ry. Co. v. Commercial Union Ins. Co., 139 U. S. 223, 235, 11 Sup. Ct. 554, and cases cited; Marine Ins. Co. v. St. Louis, I. M. & S. Ry. Co., 41 Fed. 643. But the rule seems to be well settled that, when the value of the property exceeds the insurance money paid,the suit must be brought in the name of the assured. Aetna Ins. Co. v. Hannibal & St. J. R. Co., 3 Dill. 1, Fed. Cas. No. 96; Assurance Co. v. Sainsbury, 3 Doug. 245; Insurance Co. v. Bosher, 39 Me. 253; Hart v. Railroad Corp., 13 99; Connecticut, etc., Ins. Co. v. New York, etc., R. Co., 25 Conn. 265, 278; Insurance Co. v. Frost, 37 TIl. 333; Fland. Ins. pp. 360, 481, 591; Marine Ins. Co. v. St. Louis, I. M. & S. Ry. Co., supra. In such an action the assured may recover the full value of the property from the wrongdoer, but as to the amount paid him by the insurance company he becomes a trustee; and the defendant will not be permitted to plead a release of the cause of action from the assured, or to set up as a defense the insurance compants payment of its part of the loss. Hart v. Railroad Corp., supra; Hall v. Railroad Co., 13 Wall. 367. In support of this rule it is commonly said that the wrongful act is single and indivisible and can give rise to but one liability. "If," says Judge Dillon in Aetna Ins. Co. v. Hannibal & St. J. R. Co., supra, "one insurer may sue, then, if there are a dozen, each may sue; and, if the aggregate amount of all the policies !alls short of the actual loss, the owner could sue for the balance. This is not permitted, and so it was held nearly a hundred years ago, in a case whose authority has been recognized ever since both in Great Britain and in this country." , The learned counsel for the plaintiff in error challenges the soundness of this rule, and contends with much force that the rule that a wrongdoer who injures many people by the same act is liable to each person separately for the injury done to each should be applied to this class of cases. It is said, "The conveniencp. of the innocent injured man to sue and get reparation is paramount to the inconvenience of the wrongdoer who suffers from a multiplicity of suitors." It would serve no useful purpose to
repeat'here the reasoning of the courts in answer to this contention. The subject is fully gone over in the authorities we have cited. where the property exceeds in value the amount insured; the ,suit must be in the name of the assured, seems not to rest so much upon the necessity or desirability' of exempting the wrongdoer from a multiplicity of suits as upon the peculiar natureof ,the relation existittgbetween the· assured and the insurer. It is by the supreme judicial court of Massachusetts (Hart v. RailroaddIlorp., supra) and by.the supreme court of the United States (HaIlv. Railroad CO., supra) that in respect to the ownership of that ,property,. and the risk incident, thereto; the owner and the insurer are ,considered but:one person, having together the: ficial:right to the indemnity due from one who is responsible for its.loSIJ'i;' When the insurer pays the assured the full value of the property .destroyed, the :insurermay maintain an action in his own name. against one responsible for its loss, because, by operation.of;l3W, ,the whole beJl,eficialright to indemnity from the doer hattbeen vested in the insurer. He is therefore the .real and only:partyin interest, and, under the Code, the proper 'party to bring, ,tllle.suit. . But, when the value of the property/ destroyed exceOOs( ltne insurance money paid, the beneficial right to indemnity:fronkthe wrongdoer remains in the assured, for the whole propertY,-for the unpaid balance due to himself, as weUas,,'f())," the amount paid by the insurer, as to w.hich last sum he is as a trustee. " It,wij!);re.Observed that in this case 10 other insurance compaseparate policies on tb.e property, and that the of all. the policies onJy equals three-fourths of the the property, and that the assured has brought suit company for the value of the property destroyed. If tll-Ii! cOAtention of the ,plaintiff. in error, is sound, then the 11 and the assured, can each maintain a sepaagainst the alleged wrongdoer. We are cited to no case which li!Upports this contention, and we do not think one can be found., The allegation of the complaint that the mill company, in it,S action against the oil company, makes no claim. for the amount, ot'insurance paid 'by the plaintiff,. does not alter the case; for, j1thi,s waa,done at the request of the plaintiff, it cannot complain, "and if it was done by the mill company on its own motion, and it reCOYers in the action, it will hold an amount of the recovery equal to the insurance paid as trustee for the plaintiff. The judgment of the circuit court is affirmed.
AETNA LIFE INS. CO. V. TOWNSHIP OF LAKIN.
AETNA LIFE INS. CO. v. TOWNSHIP OF LAKIN. (Circuit Court of Appeals, Eighth Circuit. January 29, 1894.)
No. 229. PRACTICE-N ONSUIT. Plaintiff has a right, In Kansas, by the express terms of the statute, (Code Clv. Proc. Kan. § 397,) to dismiss his action without prejudice at any time befOle its final submission to the jury, or to the court where the trial is by the court.
In Error to the Oircuit Court of the United States for the District of Kansas. This is an action on certain coupons detached from municipal bonds, by the Aetna Insurance Company against the township of Lakin, in the county of Kearney, state of Kansas. The case was dismissed, on motion, and final judgment rendered for defendant. This ruling of the circuit court is now assigned for error. W. H. Rossington, Oharles Blood Smith, and Everett J. Dallas, for plaintiff in error. F. P. Lindsay, orally, for defendant in error. Before CALDWELL, Circuit Judge, and THAYER, District Judge. CALDWELL, Circuit Judge. The record shows that, when this cause was called for trial in the court below, "the plaintiff announced that it was not ready for trial, and could not be ready for trial herein during the present term of this court, and asked permission to dismiss this action, to which the defendant objected for the reason that under the pleadings herein the defendant was entitled to judgment in its favor, which objection of the defendant was by the court· sustained." The case was thereupon dismissed, and a final judgment rendered in fav91 of the defendant. This ruling of the court was duly excepted ''to, and is here assigned for error. The suit is founded on interest coupons cut from negotiable bonds which the plaintiff alleges were issued by the township of Lakin, in the county of Kearney, Kan. The answer contains six paragraphs. The plaintiff replied to the first five, and demurred to the sixth, and, upon the demurrer being overruled, filed a reply to that paragraph. The filing of this reply seems not to have been known to the court at the time the action was dismissed. . It is contended that the reply is not sufficiently specific in its denials of the averments of the answer. It denies "each and every, all and singular, the allegations and averments therein set forth and contained." If the defendant conceived this reply was. not sufficiently specific in its denials, it should have attacked it by motion or demurrer, according as the one or the other of these modes may be proper under the practice that prevails in that state. It could not be treated as a nullity. . Upon the state of the pleadings, the plaintiff had an undoubted right, under the Code of Kansas, to dismiss its action when it was called for trial. That Code provides that "an action may be dismissed without prejudice to a future action: First, 'by the plain-