Dougherty v. Yazoo & Mississippi Valley Railroad

ON REHEARING MOUTON, J. Luikart leased a farm from plaintiffs and during the term of the lease built a barn on the land. The barn was destroyed by fire caused by sparks emitted from a train of defendant company. The barn was insured with the Springfield Fire and Marine Insurance Company in the name of plaintiffs, Luikart’s lessors. The barn belonged to Luikart who paid the premiums on the policy. Luikart, being under the mistaken idea that the barn was the property of his lessors, consented to the issuance of the policy in the name of the Estate of N. S. Dougherty. Plaintiffs, as lessors, had a lien on the barn but did not take the policy to safeguard their privilege, and did not pay the premium. Luikart was the assured. The policy was for $600.00, which was adjusted with the insurance company for $568.00 by plaintiffs. Upon recovering that amount, plaintiffs as the agent of the Dougherty estate, by written contract, transferred all of the rights of the estate against defendant railroad company, and undertook to constitute the insurance company, their subrogee. Plaintiffs claim $758.00, the alleged value of the barn, out of which it is asked that $568.50 be decreed to the insurance company, as subrogee. Luikart testifies that when the insurance was collected it was turned over to plaintiffs for his rent. As hereinabove stated, the policy was for $600.00 and had been adjusted for $568.00 by plaintiffs. Plaintiffs were not owners of the barn, could not demand its value nor a claim therefor as Luikart had made no transfer of such a, claim to plaintiffs. Luikart says he turned the insurance over to plaintiffs which the evidence shows was for $600.00, and had been adjusted for $568.00. If plaintiffs have any rights, they must be limited to $568.00 demanded for the benefit of the subrogee. Luikart' *298 was the owner of the barn and could not possibly have any lien or mortgage against it. The barn was destroyed by fire and went into smoke, leaving to Luikart a mere claim for its value. If he had had a lien against the property destroyed, upon receiving payment by way of rent from Dougherty, it could be contended that the insurance company would have been legally subrogated to the rights of Luikart. As he had a bare claim only, against defendant company, a conventional subrogation from Luikart to the insurancé company would have been essential to constitute the latter, his subrogee. The record shows no such subrogation, and none to Dougherty, who, if any had been made in his favor, it might possibly be said he had conveyed his subrogated rights to the insurance company. If plaintiffs had been the assured, and had paid the premium on the policy, there would be ground for contention that as they had a lien or lessor’s privilege, the payment of the insurance money which they were permitted to retain for the rent, had effected a legal subrogation in favor of the company to the sum of $568.00, for which the policy had been adjusted. Such were, however, not the facts. Luikart, owned the barn, paid the premium, and was the assured. That he was the assured appears also from the fact that when the money was collected for the rent, he turned over to plaintiffs’ the insurance policy. If they had been the assured such “turning over” would have been entirely unnecessary. As plaintiffs were not the assured they could not make the insurance company a subrogee. They' had no authority whatsoever from Luikart to confer any such rights on the insuranoe company, which is neither a legal nor conventional subrogee. No being subrogated to Luikart, the assured, the insurance company had no right to sue for itself, and consequently could not empower plaintiffs as their agent to institute this suit for the amount paid by it on the policy. This involves a question of the right to sue on the part of plaintiffs, and not one of capacity which would? have required an exception in limine. The exception filed by defendant was timely and was properly maintained. Our original decree is therefore reinstated, and the judgment below is affirmed.