gence; and hence is maintainable in another State than the one where the loss occurred. Home Ins. Co. v. Penna. R. R., 11 Hun. 182. But one court has denied this right of subrogation to the companies-Carroll v. N. O., etc., Ry. Co., 26 La. Ann. 447—and in that case two of the justices dissented. It was there held that the insurance company had no right of subrogation against the railroad company, where goods were insured and destroyed by fire while in the hands of the railway company, for transportation, in the absence of formal stipulation in their policy giving them such right. The fact that a foreign insurance company has not complied with the laws of the State, and has no right to do business within the State, does not affect its right to subrogation to the claim of the owner against a wrongdoer, and such company may maintain its action against the wrongdoer without showing compliance with the statutes. Phenix Ins. Co. v. Pennsylvania Co., 134 Ind. 215; 20 L. Before the insurance company is entitled to subrogation, the owner must be fully indemnified for the loss of his property and for all expenses which he has incurred in enforcing his claim for such loss. If the loss to the property is occasioned by a wrongdoer, and the insurance is less than the loss so occasioned, the insurance company would not be entitled to subrogation until the insured had been fully indemnified. In Newcomb et al. v. Cincinnati Ins. Co., 22 Ohio St. 382, the court, after recognizing the doctrine of subrogation, says: "In case of partial insurance, of which class is the one at bar, the assured and underwriters have each a substantive interest in the claim against the wrongdoer, whereas in a case of full insurance and compensation the interest of the former is but normal. Where the assured, as in case of partial insurance, sustains a loss in excess of the reimbursement or compensation by the underwriter, he has an undoubted right to have it satisfied by action against the wrongdoer; but if by such action there comes into his hands any sum for which, in equity and good conscience, he ought to account to the underwriter, reimbursement will to that extent be compelled in an action by the latter based on his right in equity to subrogation. But the assured will not, in the forum of conscience, be required to account for more than the surplus which may remain in his hands after satisfying his own loss in full, and his reasonable expenses incurred in its recovery, unless the underwriter shall, on notice and opportunity given, have contributed to and made common cause with him in the prosecution. "In this case, the losses of the plaintiff in error, in excess of insurance, exceeded $9,000; their recovery was $11,086. The costs of prosecuting the action exceeded $6,000. The amount applicable to their excess of loss, after payment of expenses, was insufficient to satisfy it. It is not unconscionable that they retain this; it would be to award any part of it to the defendant in error, who refused to hazard the costs of its recovery." Also see: Pentz v. Etna Fire Ins. Co., 9 Paige 568. Kernochen v. New York Bowery Ins. Co., 17 N. Y. 436. Right of Insured to Release Wrongdoer. The standard fire insurance policy provides that: "If this company shall claim that the fire was caused by the act or neglect of any person or corporation, private or municipal, this company shall, on payment of the loss, be subrogated to the extent of such payment to all right of recovery by the insured for the loss resulting therefrom, and such right shall be assigned to this company by the insured on receiving such payment." Where the insurance company has paid the loss to the insured, the company has the right to demand of the insured an assignment of his claim against the wrongdoer occasioning the loss, and the insured can not defeat this right of the company by a release of the wrongdoer after the loss. In Hart et al. v. R. R. Corp., 13 Metc. 99, the insured property was destroyed by fire communicated from an engine of the railroad company. The insurance company requested plaintiffs to commence a suit against the railroad company to compel payment of the loss, and offered to indemnify the insured from costs and to save them harmless in reference to said suit. The insured refused to commence a suit as requested, but demanded the amount of their loss of the insurance company, who paid the same, first notifying the railroad company that they did not intend thereby to relinquish any claim which they might have against it for the amount. The insurance company, in the name of the insured, then brought suit against the railroad company to recover the amount paid. After the action was commenced, and before the entry of the writ, the insured executed an instrument declaring that they had received payment of their loss from the insurance company; that they had no claim against the railroad company; that they had not authorized the commencement of the action against it, and did not wish to have it prosecuted, and fully releasing any claim which they might have against the railroad on account of said loss. This release was pleaded by the railroad as a defense to the action. In overruling this defense the court says: "That by accepting payment of the insurers the insured do implicitly assign their right of indemnity from a party liable to the assured. It is in the nature of an equitable assignment, which authorizes the assignee to sue in the name of the assignor for his own benefit; and this is a right which a court of law will support, and will restrain and prohibit the assignor from defeating it by a release. The formal discharge, therefore, given by the nominal plaintiffs, is not a bar to the action." The Supreme Court of Wisconsin, in Swarthout et al. v. C. & N. W. R. R. Co., 48 Wis. 625, 9 Ins. L. J. 603, says: "And the courts have likewise been very firm in supporting the right of the insurance company to bring an action in the name of the assured, and will not allow the latter to defeat such action, even by a release or discharge of the person by whose act the damage was occasioned. (Citing Hart et al. v. Western R. Co., 13 Metc. 99; Monmouth Co. Fire Ins. Co. v. Hutchinson et al., 21 N. J. Eq. 107; Conn. Fire Ins. Co. v. Erie Ry. Co., 73 N. Y. 399.)" In the case of Conn. Fire Ins. Co. v. Erie Ry. Co., 73 N. Y. 399, where the insured property was destroyed by the negligence of the railroad company, the insured received from the railroad company, for his damages, $1,800, and executed a release with the following proviso: "This settlement is not intended to discharge the C. Fire Ins. Co. from any claim which said M. has against them for insurance, but as a full settlement with and discharge of the E. Ry. Company only." Subsequently the insured brought an action upon the insurance policy and recovered judgment. After its payment he assigned any claim against the railway company which he had. In an action by the insurance company against the railway company to recover the amount paid, the court held that the clause quoted from the release limited the effect of it to a release of the balance, retaining the claim against the insurance company and excepting its right to a remedy over, and it did not affect its right to be subrogated. A release executed in such terms has been held inoperative to exempt the wrongdoer from liability in: Ins. Co. of North America v. Fidelity Title and Trust Co., Fidelity Title, etc., Co. v. People's Natural Gas Co., 150 Pa. Monmouth County Mut. Fire Ins. Co. v. Hutchinson, 21 N. Tyler v. Ætna Fire Ins. Co., 16 Wend. 397. Gracie v. New York Ins. Co., 8 Johns. 245. Timan v. Leland, 6 Hill 237. Bright Hope Ry. Co. v. Rogers, 76 Va. 443, 11 Ins. L. J. 899. In this last case the court, after stating the right of subrogation, says: "In such cases the assured stands in the relation of trustee to the insurer to the extent of the sum paid, and he can not even release the right of action, nor the action itself, if one has been commenced, so as to defeat the claim of an insurer to reimbursement from the wrongdoer for the injury." A release executed by the insured to a wrongdoer, before receiving payment for his loss from the insurance company, or before demand for payment of the insurance company, would have the effect to release the wrongdoer from liability to the insurance company, where there was no saving clause in the release, as in the cases cited supra. The execution of such release by the insured, however, has the effect to discharge the insurance company from all liability under its policy. In Dilling v. Draemel, 16 Daly 104, 9 N. Y. Supp. 497, the insured settled with the wrongdoer for his loss, and executed and delivered to him a general release, under seal, against all claims, dues and demands whatsoever. Thereafter he brought an action against the insurance company to recover that proportion of his loss over the amount received from the wrongdoer. The court says: "Such a release destroyed the right of subrogation. If the assured, by his own act, absolutely and without reservation, releases the wrongdoer, he thereby discharges the insurer to the full extent to which he has defeated the insurer's remedy over by right of subrogation. High lands v. Cumberland Valley Farmers' Mut. Ins. Co. (Pa.), 52 Atl. 130; Packham v. German Fire Ins. Co. (Md.), 46 Atl. 1066." Where, however, the release is executed prior to the taking out of the insurance, the company is not entitled to subrogation, and such release does not operate to discharge it from liability. Thus, in Pelzer Mfg. Co. v. St. Paul F. and M. Ins. Co. et al., 41 Fed. 271, 19 Ins. L. J. 372, the insured property, a warehouse, was situated upon ground leased from the railroad company. By the terms of the lease, the railroad company was released from liability for damages from fire caused by its locomotives. The court held that the failure to mention this release did not operate to discharge the insurance company. Also see: Pelzer Mfg. Co. v. Sun Fire Office et al. (S. C.), 15 S. E. Nearly all carriers now stipulate in their bills of lading that if there shall be any legal liability incurred by the carrier for loss or damage of goods, "the carrier so liable shall have the full benefit of any insurance that may have been effected upon, or on account of, said goods." In the case of Phenix Ins. Co. of Brooklyn v. Erie & Western Transp. Co., 117 U. S. 312, goods were shipped on board a propeller of the company, and the same day were insured in the insurance company. The transportation company issued to the shipper a bill of lading containing the above provision. There was a loss, which the insurance company paid, and brought suit against the transportation company, claiming right of subrogation. The transportation company pleaded the provision in the bill of lading giving it the benefit of the insurance. In holding that the insurance company had no right against the transportation company, the court says: "As the carrier might lawfully himself obtain insurance against the loss of the goods by the usual perils, although occasioned by his own negligence, he may lawfully stipulate with the owner to be allowed the benefit of insurance voluntarily obtained by the latter. This stipulation does not in terms or in effect prevent the owner from being reimbursed the full value of the goods; but being valid as between the owner and the carrier, it does not prevent either the owner himself or the insurer, who can only sue in his right, from maintaining an action against the carrier upon any terms inconsistent with this stipulation. Nor does this conclusion impair any lawful rights of the insurer. His right of subrogation arising out of the contract of insurance and payment of the loss is only to such rights as the insured has, by law or contract, against third persons. The policy containing an express stipulation upon the subject, and there being no evidence of any fraudulent concealment or misrepresentation by the owner in obtaining the insurance, the existence of the stipulation between the owner and the carrier would have afforded no defense to an action on the policy. (Citing Tate v. Hyslop, 15 Q. B. D. 368; Jackson Co. v. Boylston Mut. Ins. Co., 139 Mass. 508.)" Mr. Justice Bradley dissented from this opinion, saying: "Such agreement would be res inter alios acta, and void as against the insurer. It would be a fraud upon him. The carrier would thereby protect himself against the consequences of his own negligence, and compel the insurer to indemnify him without paying any premium. The owner of the goods gives up no right himself against the carrier, but they two agree, behind the insurer's back, that he shall have no right of subrogation against the carrier, but that the carrier shall have such a right against him, thus changing the law by their private agreement. It seems to me that this is contrary both to law and justice." While I agree with Justice Bradley as to the right in such cases, yet all the decisions are the other way and in favor of the majority opinion of the court. Platt v. Richmond, Y. R. & C. R. R. Co., 108 N. Y. 358, 17 Providence-Washington Ins. Co. v. The Sidney, 23 Fed. 88, British and F. Ins. Co. v. G. G. & S. F. R. R. Co., 63 Texas Hartford Fire Ins. Co. v. C., M. & St. P. Ry. Co. (U. S. S. Roos v. Philadelphia, W. & B. Ry. Co., 7 Pa. D. R. 405. But as to whether this is good or bad law, the insurance companies may protect themselves against it by inserting in their policies a provision that the insurance shall not inure to the benefit of any carrier; so that if a shipper accepts a bill of lading, giving a carrier the benefit of any insurance which he may have or may obtain, and the policy of insurance obtained by the shipper contains the provision that the insurance shall not inure to the benefit of any carrier, neither the shipper nor the carrier has any right of action against the insurance company under the policy for loss of the goods by negligence of the carrier. Carstairs et al. v. Mechanics and Traders' Ins. Co., 18 Fed. Fayerweather v. Phenix Ins. Co., 118 N. Y. 324, 21 Ins. L. Dundee Chemical Works v. New York Mut. Ins. Co., 67 N. North America Ins. Co. v. Easton, 73 Texas 167. In Missouri it has been held that if the insured refuses to assign the cause of action belonging to the insurance company by virtue of the subrogation clause in the policy, it is a defense to an action on the policy. Dick v. Franklin Fire Ins. Co., 81 Mo. 103. This case seems to be in conflict with the other cases, to the effect that the company must pay the loss to the insured as a condition precedent to its right to demand subrogation. See cases cited supra. In the case of Highlands v. Cumberland Valley Farmers' Ins. Co. (Pa.), 52 Atl. 130, the insured sought to avoid the forfeiture incurred by his release, executed to the wrongdoer, by averring that such release had been procured by the fraud of the representative of the railroad company. The court held that the release executed by the insured voided the policy, and the fact that such release may have been procured by fraud would not change the rule. In the case of North British and Mercantile Ins. Co. v. Central Vermont Railroad Co., 40 N. Y. Supp. 1113, the railroad com |