Ætna Ins. v. Confer

Citations

• 158 Pa. 598
• 28 A. 153
• 1893 Pa. LEXIS 1639

Syllabus

<p>Insurance — Damages from, insurance company and railroad — Judgment-Waiver — Estoppel—Res judicata — Affidavit of defence.</p> <p>Defendant’s property was destroyed by fire from the sparks of a locomotivo. He collected from plaintiff, an insurance, company, a portion of a policy of insurance on the property destroyed. After the money was paid to him he recovered and collected a judgment from the railroad company for a large amount for the damage caused by the fire. Plaintiff then brought suit to recover the money paid on the policy. Defendant filed an affidavit of defence, in which he averred that he had requested plaintiff to join in the litigation against the railroad, but that plaintiffhad refused to have anything to do with the matter, and had assured defendant that he was welcome to all he could collect from the railroad company; and that his loss was greater than the sum of the amounts paid by the insurance companies and the railroad company after deducting expenses for collection. Held that the affidavit was sufficient to prevent judgment.</p> <p>It seems that in such a case the insurance company by parol, through an authorized representative, before suit was brought against the railroad company, could waive all claim-on money contingent on a successful prosecution of a suit, in Which it declined to take any risk or part.</p> <p>It also seems that the judgment recovered against the railroad company was not conclusive as to the whole amount of the loss by the fire, as hetw-een the insurance company and the insured.</p> <p>Not decided whether such action on the part of the insurance company operated as an estoppel.</p>