Page:Federal Reporter, 1st Series, Volume 7.djvu/271

FIRST PBESBYT'n SOCIETY'; BTd., V. GOODRICH TBANS. CO. 289 �In the case last cited, Lawrence, J., speaking for the court, says: �"It very often happens that valuable property is insured In several companies at the same time. If the property is burned throughthe care- leasness of some third person, can such person be liable to as many suits as there are insurances t Is there morc than once cause of action against him ? And can that be indefinitely divided i What is the measure of damages i la it the injury done by him to the property, er the amount the insurance companies have paid i Clearly the former. If the several In- surance companies have paid more than the actual loss, thcy cannot make him liable for what they have paid. He is liable to the owner of the prop- erty for the injury he has done to it, and, although a wrong-doer, it is still his right to have that loss adjusted in a single suit. The companies may unite in bringing an action for their use in the name of the asaured. The recovery will be for the injury done to the property, and when the judgment is obtaiued the court will determine, as between the different companies, how the proceeds of the judgment are to be divided." �In Hall V. Railroad Co. 13 Wall. 370, it was held that an �insurer of goods, destroyed by fire in course of transportation �by a common carrier, is entitled, after payment of the loss, �to recover what he has paid by suit in the name of the assured �against the carrier. And in the opinion it is said that — �" In respect to the ownership of the goods and the risk incident thereto, the owner and the insurer are considered but one person, having together the beneficiai right to the indemnity due from the carrier for a breach of his contract, or for non-performance of his legal duty." �In Ins. Co. V. Erie Ry. Co. 73 N. Y. 399, it was held that the action was rightfully brought in the name of the insurer alone ; but the fact was that the owner had fully settled his Personal claim against the defendant, and so the insurance Company was the only remaining party in interest. The action being one under the Code of that state, which required suit to be brought in the name of the real party in interest, and the owner having no interest, it was held that the insur- ance Company might sue. �In this state it has been decided (Swarthout v. The C. e N. W. Ry. Co. 49 Wis. 625) that where the owner of prop- erty destroyed by fire, and several insurers, have rights of action for different portions of the value, all arising out of the same wrongful act, they may join in a single action against the wrong-doer. And it appears to be the view of ��� �