Page:Federal Reporter, 1st Series, Volume 7.djvu/272

 260 FBDXBAL BEFOBTEB. �the court that under the state Code the insurer, on payment �of the loss insured against, may sue in his ovm name. At �the same time, however, the court characterizes the act of the �wrong-doer as a single wrongful act, giving rise to but one �liability upou a claim which is indivisible, and it seems to be �upon thia ground that the court put the right of the insurers �and the assured to join in a single action to recover the whole �Iosb; for it is said that — �" To hold that these plaintiffa cannot * * * unite in one action to enforce what is really but one liaMlity or cause of action, but that each must bring a separate suit, •would open the door to a litigation 'which wouid be most oppressive to the defendant, and which would produce much mischief." �In Mtna Ins. Co. v. Hannibal e St. J. R. Co. S Dillon, 1, �it was said by Judge Dillon, that, in a case where the prop- �erty destroyed exceeded in value the amount insured, the rule �of law bas been long settled that the Insurance company, on �the payment of the loss, cannot sue the wrong-doer in its own �name, and he decided that — �"The suit, though for the use of the insurer, must be in the name of the person whose property was destroyed. The wrongful act was single and indivisible, and gives rise to but one liability." �And he so held, notwithstanding the provision of the Mis- souri statute which requires every action to be prosecuted in the name of the real party in interest. Upon this point he says: �" However it might be if the amount paid by the insurer had equalled or exceeded the value of the property, and the assured had made a full assignment, it is plain that this cas© falls within all the reasons of the rule itself, as expounded by Bu lier and Mansfleld in the case in Douglas, �Prom what has been said, the conclusion follows that where the negligent act, in a case like the present, is single and indivisible, there really arises but one liability or cause of action. At common law this liability wouid have to be en- forced in the name of the owner of the property. Admitting that, under the Code, the insurer's right in certain cases might be enforced by action in his own name, such rule of practice or form of remedy would not have the effect to sever the original cause of action : it would affect only the manner ��� �
 * * * and which is the fouadation of the law on this subject."