Ætna Ins. v. Confer

Opinion by

Mr. Justice Dean,

The defendant owned an oil refinery on the line of a railroad; he insured his property in five companies, among them this plaintiff, each delivering to him a policy in the sum of $3,140, and each policy, to the amount of it, embracing in the description the whole property. While the policies were in force, on the 24th of July, 1889, the refinery caught fire from locomotive sparks from the railroad, and was damaged to the amount of $27,565.42, as averred by him in his proof of loss. Defendant, as required by his contracts of insurance, at once made claim on the insurers. On July 31, 1889, the plaintiff paid him in full of its share of the loss $1,868.58; the other four companies paid a like sum. Afterwards, the defendant, alleging the fire was caused by the negligence of the railroad company, brought suit against it for his entire loss, and got a verdict for $25,081.46, which, when paid, with interest and costs added, amounted to $27,069.83. Whereupon, this plaintiff, one of the insurance companies, brought this suit, to get back from defendant the amount it had paid him, $1,868.58, less its share of the expenses of collection of the whole amount from the railroad company. To this claim of the company, the defendant filed affidavit of defence, in substance averring:

1. That immediately after the fire, at the time of the adjustment of his loss, he informed the insurance company fully of the cause of it, which, as he believed, was the negligence of the railroad company, and solicited said company to join with or aid him in a suit against said railroad company, that said insurance company might be reimbursed for the amount it had paid him, but that plaintiff refused to have anything to do with the matter; said it was not in the law business; had no claim against the railroad company; that insured was welcome to all he could collect from the railroad company; that thereupon he brought suit in his own name against the railroad company, and, after long, vexatious and expensive litigation in the court below and in the Supreme Court, he three years afterwards obtained final judgment and received the money.

2. That he paid out and expended a large sum of money in procuring attendance of witnesses, printer’s bills, counsel fees, etc., amounting to the sum of $5,389.83.

3. That his loss was much greater than the aggregate amount paid by all the insurance companies, and that the sum of the amounts paid by the insurance companies and railroad company did not cover his loss after deducting the expenses of collection.

On filing this affidavit, plaintiff took a rule for judgment for want of a sufficient affidavit of defence, which the court on hearing discharged. From that decree comes this appeal.

It must be a very plain case of error in law, if we sustain appeals in such cases as this, from the decree of the common pleas discharging the rule. The decree being interlocutory, no injury can result to the complaining suitor other than delay of final judgment. Besides, it is doubtful whether the act of assembly authorizing these appeals has not, on the whole, aggravated delay. The observations of this court in Griffith v. Sitgreaves, 81* Pa. 378, and Radcliffe v. Herbst, 135 Pa. 568, are pointedly applicable in the case before us.

A very elaborate argument is made, with abundant reference to authorities, to show that appellant has a good cause of action. As nothing to the contrary has been intimated by the court below, that question being in no way involved in the decree discharging the rule, we are somewhat at a loss to understand why the point is so earnestly urged here. The jurisdiction of this court is appellate, not original, in actions at law; it is our duty to review judgments of the common pleas, not to make suggestions preliminary éo a hearing, as to what decrees shall there be made. We presume the learned judge of the court below, if the question be raiséd before him, will rightly decide it. Certainly we cannot pass upon it before hearing or decision by him. The only question properly before us is, does the affidavit set out sufficient to send the case to a jury? We do not think it advisable at this stage of the proceedings to inquire whether the agreement to relinquish or waive any claim by the insurance company, as averred by defendant, would constitute an estoppel. As the ease must go to trial on other disputed facts, the sufficiency of this part of the defence can be better determined when the evidence is heard. We have no doubt plaintiff could, by parol, through an authorized representative, before suit was brought against the railroad company, have waived all claim on money contingent on a successful prosecution of a suit in which it declined to take any risk or part. Whether there was such a waiver by one authorized to make it, and whether the defendant, in view of it, took upon himself all the labor, expense and risk of problematical litigation, which otherwise he would not have done, are questions 'on which we now, for obvious reasons, intimate no opinion.

But the defendant further avers that he expended a large sum of money in and about the prosecution of the suit, such as counsel fees, costs, and expenses of hunting up witnesses. The plaintiff undertakes to make a deduction from its claim for its share of this expense ; defendant alleges that the deduction is not sufficient. This disptite can only be determined after hearing the evidence bearing on it. Then defendant further avers that bis actual loss was greater than the aggregate amount received by him from both the insurance companies and the railroad company; the plaintiff replies that his claim against the railroad company was for his entire loss, and the judgment in that case is conclusive as to the amount. Undoubtedly, as between him and the'railroad company, the judgment is conclusive ; but the plaintiff was no party to that suit; however significant the judgment may be as evidence in this issue, it does not necessarily follow, as between these parties, that that judgment determines the whole amount of plaintiff’s loss by the fire. His proven loss to the insurance companies, at time of payment by them, was §27,565.42; the verdict of the jury, nearly sixteen months after the fire, was only §25,081.36; deducting his alleged expenses from this amount, and adding the remainder to the amount received for insurance, makes a net sum, less than the aggregate of his alleged loss, as.first proven to the insurance companies. The defendant, on trial of this issue, may adduce fuller and more specific proof of loss than on the former trial; may offer evidence which will satisfy the jury, as it satisfied the insurance companies when they paid him, that his actual loss was §27,565.42.

It is clear to our minds that the disputed facts mentioned can only be determined by a jury trial, therefore the decree of the court below is affirmed and the appeal is dismissed at costs of appellant.