ton Direct Nav. Co. v. Insurance Co. of N. A. (Tex.), 31 S. W. Rep. 560; Deming v. Merchants' Cotton-Press Co., 90 Tenn. 306, 17 S. W. Rep. 89; Louisville & N. R. Co. v. Manchester Mills, 88 Tenn. 653, 14 S. W. Rep. 314; Brighthope R. Co. v. Rogers, 76 Va. 443; Marine Ins. Co. v. St. Louis, I. M. & S. R. Co., 41 Fed. Rep. 643; Wager v. Provident Ins. Co., 150 U. S. 99, 14 Sup. Ct. Rep. 55; Holcomb v. Richmond R. Co., 78 Ga. 776; Huntisford Ins. Co. v. Railroad Co., 66 Wis. 58; Stoughton v. Manufacturers' Gas Co., 165 Pa. St. 428; Central Vermont R. Co. v. Stanstead, Rap. Jud. Quebec (1896), 5 B. R. 224. 2. St. Louis, Ark. & T. R. Co. v. Fire Assoc., 60 Ark. 325, 30 S. W. Rep. 350; King v. Victoria Ins. Co., L. R. P. C. (1896) A. C. 250.

3. Texarkana & F. S. R. Co. v. Hartford Ins. Co. (Tex.), 44 S. W. Rep. 533.

4. Home Ins. Co. v. Pennsylvania R. Co., 11 Hun, 182. Exceptions. In Maine, by effect of statute (1895), the railroad company is liable only for the difference between the net amount of insurance recovered and the amount of the injury suffered by the property-owner. As the insurance companies cannot acquire any claim or right by subrogation which assured does not have, the rights of the insurance company are materially affected by the statute; but it cannot be said to affect its contractual rights nor is such a statute unconstitutional. Leavitt v. Canadian Pacific R. Co., 90 Me. 153, 37 Atl. Rep. 886. The Maine statute does not relieve the railroad company from the consequences of its own negligence, though it may affect or limit the measure of damage or recovery. Dyer v. Maine Central Ry. Co., Me. , 58 Atl. Rep. 994. And in Colorado a late statute (1903) materially affects right of subrogation. See statutes in chapter twelfth.

RULE 9.

Same Subject-Rights of Insured - Effect of First Collecting Entire Loss from the Railroad Company - Concealment. When loss is caused by negligence of a railroad company the insured has the primary right to indemnity against either the railroad company or the insurance company, and can collect of either; but if he first collect from the railroad company the entire amount of his loss he cannot have a second satisfaction of the insurance company; and if he first collects the insurance, then he becomes a trustee in equity to the extent

of the amount thus collected, and the insurance company is subrogated to the rights of the assured as against the wrongdoer;1 if, after being paid in full by the railroad company, he conceals the fact and collects from the insurance company, latter may recover back the amount so paid upon the ground that it was fraudulently obtained.2

1. Chicago, Burlington & Q. R. Co. v. Emmons, 42 Ill. App. 138; Chicago, St. L. & N. O. R. Co. v. Pullman Co., 139 U. S. 79; Chickasaw County Ins. Co. v. Weller, 98 Iowa, 731, 68 N. W. Rep. 443; Kennedy v. Iowa State Ins. Co., 119 Iowa, 29, 91 N. W. Rep. 831; Hart v. Western R. Co., 13 Metc. (Mass.) 99; Connecticut Ins. Co. v. Erie R. Co., 73 N. Y. 399. And see Niagara Ins. Co. v. Fidelity Co., 123 Pa. St. 516; Pentz v. Etna Ins. Co., 3 Edw. Ch. 341; Hartford Ins. Co. v. Wabash R. Co., 74 Mo. App. 106; Monmouth Ins. Co. v. Hutchinson, 21 N. J. Eq. 107.

2. Chickasaw County Ins. Co. v. Weller, 98 Iowa, 731, 68 N. W. Rep. 443, and preceding cases.

RULE 10.

Settlement with Insured by Railroad Company not Conclusive as to its Liability.

The fact that a railroad company compromised and settled with the insured is not conclusive as to its liability in a suit subsequently brought by the insurance company on account of the same loss.

Home Ins. Co. v. Atchison, Topeka & S. F. R. Co., 4 Kans. App. 60, 46 Pac. Rep. 179.

RULE II.

The Insurance or its Payment no Defense for the Railroad

Company.

The railroad company or other wrongdoer cannot claim the benefit or deduction of the insurance moneys;

it is no defense for the wrongdoer that his victim has hired a stranger to indemnify him, and has either collected a part or all of the indemnity promised.

Missouri, K. & T. R. Co. v. Fuller, 72 Fed. Rep. 467, 18 C. C. A. 641, 36 U. S. App. 456; Mobile & M. R. Co. v. Jurey, 111 U. S. 584; Texas & Pacific R. Co. v. Levi, 59 Tex. 674; Cunningham v. Evansville & T. R. Co., 102 Ind. 478; Chicago, St. L. & N. R. Co. v. Pullman Car Co., 139 U. S. 79, 11 Sup. Ct. Rep. 490; Harding v. Town, 43 Vt. 536; Regan v. New York & N. E. R. Co., 60 Conn. 124, 22 Atl. Rep. 503; Collins v. Railroad Co., 5 Hun, 503; Webber v. Morris & E. R. Co., 35 N. J. L. 409; Sloughton v. Manufacturers' Gas Co., 165 Pa. St. 428, 30 Atl. Rep. 1001; St. Louis R. Co. v. Fire Assoc., 60 Ark. 325, 30 S. W. Rep. 350; Hart v. Western R. Co., 13 Metc. (Mass.) 99.

RULE 12.

Effect of General Release by Insured to Railroad Company.

A general release obtained by the railroad company from the insured is void as against the claim of the insurance company, the latter being regarded as an assignee in equity upon payment of the loss.

Chicago, B. & Q. R. Co. v. Emmons, 42 Ill. App. 138; Hartford Ins. Co. v. Wabash R. Co., 74 Mo. App. 106; West of England Ins. Co. v. Isaacs, (1897) 1 Q. B. 226, affg. (1896) 2 Q. B. 377. And see Monmouth Ins. Co. v. Hutchinson, 21 N. J. Eq. 107; Brighthope R. Co. v. Rogers, 76 Va. 443. See also Rules 9, 15.

RULE 13.

Contributory Negligence of Insured a Defense Question of Fact.

While the owner's contributory negligence may defeat the insurance company's claim against the railroad company the question is usually one of fact for a jury.

Wild v. Boston & Maine R. Co., 171 Mass. 245, 50 N. E. Rep. 533; Liverpool, L. & G. Ins. Co. v. Southern Pacific R. Co., 125 Cal. 434, 58 Pac. Rep. 55.

RULE 14.

Legal Right of Insured to Place His Property in Proximity to Tracks.

Owner and insured is not guilty of contributory negligence as matter of law in building or placing property upon his own land in proximity to railroad tracks, as he has the right to assume that the railroad company will use proper care to avoid firing his property.

St. Louis & L. W. R. Co. v. Miller, 27 Tex. Civ. App. 344, 66 S. W. Rep. 139.

RULE 15.

Effect of Settlement by Insured with Railroad Company Before Payment of Insurance.

Where the assured settles with the railroad company or wrongdoer causing the loss, and gives it a general and full release without excepting the insurance, thus depriving the insurance company of its right of subrogation in case it should make payment, it is a good defense to a subsequent action to recover the insurance; or if the insurance be subsequently paid the insurance company takes nothing by subrogation or assignment.2

1. Sims v. Mutual Ins. Co., 101 Wis. 586, 77 N. W. Rep. 908; Niagara Ins. Co. v. Fidelity Co., 123 Pa. St. 516, 16 Atl. Rep. 790. And see Pelzer Mfg. Co. v. Sun Fire Office, 36 S. C. 213, 15 S. E. Rep. 562.

2. Home Ins. Co. v. Atchison, Topeka & S. F. R. Co., 19 Colo. 46, 34 Pac. Rep. 281. And see Rule 4.

RULE 16.

Effect of Release Excepting or Reserving the Insurance

of Insurance Company to Demand Assignment.

Where the assured settles with the railroad company causing the loss, and gives it a general and full release, excepting or reserving the insurance, which is subsequently paid, the insurance company is subrogated to the assured's claim as against the railroad company as to amount so paid, and the railroad company cannot set up the release as a defense, nor can it defend upon the ground that there has been a splitting of the cause of action by the assured;1 but the insurance company cannot demand an assignment in advance of payment of the insurance unless the policy in terms requires such assignment.2

1. Atchison, Topeka & S. F. R. Co. v. Home Ins. Co., 59 Kans. 432, 53 Pac. Rep. 459, 27 Ins. L. J. 790. And see Connecticut Ins. Co. v. Erie R. Co., 73 N. Y. 399; People's Natural Gas Co. v. Fidelity Trust Co., 150 Pa. St. 8, 24 Atl. Rep. 339; Insurance Co. of N. A. v. Fidelity Trust Co., 123 Pa. St. 523, 16 Atl. Rep. 791; Thomas v. Montauk Ins. Co., 43 Hun, 218.

2. Insurance Co. of N. A. v. Fidelity Trust Co., 123 Pa. St. 523, 16 Atl. Rep. 791; Niagara Ins. Co. v. Fidelity Trust Co., 123 Pa. St. 516, 16 Atl. Rep. 790.

RULE 17.

Effect of Stipulations in a Bill of Lading.

An insurance company's rights acquired by subrogation on payment of a loss to property in possession of a railroad company, under a bill of lading, is subject to any defense which might have been made thereunder by the railroad company as against the assured; hence a stipulation in the bill requiring claim to be