The date when the risk was written is immaterial (American Fire Ins. Co. v. Landfare, 56 Neb. 482, 76 N. W. 1068). The statute does not authorize the allowance of an attorney's fee for services rendered on error. Eddy v. German Ins. Co., 51 Neb. 291, 70 N. W. 947; Home Fire Ins. An attorney's fee cannot be recovered in an action upon a policy issued under the valued policy act, unless it is demanded in the petition, and the matter is presented to the trial court; but although it is not prayed for in the petition, if it is demanded in writing by the plaintiff at the time of the rendition of the judgment, such act will be treated as an amendment of the prayer of the petition (Hartford Fire Ins. Co. v. Corey, 53 Neb. 209, 73 N. W. 674). The court has jurisdiction to allow such fees at the time the ruling is made upon the defendant's motion for a new trial, although such motion is not passed upon at the term during which the verdict and judgment were entered (Home Fire Ins. Co. v. Weed, 55 Neb. 146, 75 N. W. 539). Under the Kansas statute the award falls strictly within the category of costs, and is to be taxed by the court as such, and not by the jury (Alliance Co-operative Ins. Co. v. Corbett, 69 Kan. 564, 77 Pac. 108). 5. SUBROGATION. (a) Subrogation to insured's claim for damages. (b) Same-Assignment of rights to insurer. (c) Same-Effect of statutes fixing the liability of railroad companies. (d) Subrogation under marine policies. (e) Subrogation in life and accident insurance. (f) Subrogation in guaranty and indemnity insurance. (g) Amount of recovery. (h) Effect on right of subrogation of wrongdoer's payment to, or release by, insured. (1) Enforcement of right against insured who has recovered from wrongdoer or released one primarily liable. (j) Subrogation to rights of lienholders and mortgagees. (k) Same-Liability on policy equaling amount of security. (1) Same-Acts defeating insurer's right. (m) Action to enforce rights. (n) Same-Parties. (a) Subrogation to insured's claim for damages. When an insurer pays to the insured the amount of the loss, it is subrogated, in a corresponding amount, to the insured's right of action against any other person responsible for the loss. Reference may be made to the following fire and marine cases: Garrison v. Memphis Ins. Co., 19 How. 312, 15 L. Ed. 656; Hall v. Nashville & Co. Building Co., 13 Wall. 367, 20 L. Ed. 594; Liverpool & G. W. Steam Co. v. Phoenix Ins. Co., 129 U. S. 397, 9 Sup. Ct. 469, 32 L. Ed. 788, affirming (C. C.) 22 Fed. 715; Liverpool & G. W. Steam Co. v. Insurance Co. of North America, 129 U. S. 464, 9 Sup. Ct. 480, 32 L. Ed. 800; American Tobacco Co. v. United States, 32 Ct. Cl. 207; Amazon Ins. Co. v. Iron Mountain, 1 Fed. Cas. 586; Insurance Co. v. The C. D., Jr., 13 Fed. Cas. 65; Mutual Safety Ins. Co. v. Cargo of the George, 17 Fed. Cas. 1082; The Planter, 19 Fed. Cas. 807; The Frank G. Fowler (D. C.) 8 Fed. 360; The Montana (D. C.) 17 Fed. 377; Id. (C. C.) 22 Fed. 715; Sun Mut. Ins. Co. v. Mississippi Valley Transp. Co. (C. C.) 17 Fed. 919; Union Ins. Co. v. Dexter (D. C.) 52 Fed. 152; Norwich Union Fire Ins. Soc. v. Standard Oil Co., 59 Fed. 984, 8 C. C. A. 433, 19 U. S. App. 460; Over v. Lake Erie & W. R. Co. (C. C.) 63 Fed. 34; Fairgrieve v. Marine Ins. Co., 94 Fed. 686, 37 C. C. A. 190; St. Louis, A. & T. R. Co. v. Fire Ass'n, 55 Ark. 163, 18 S. W. 43; Id., 60 Ark. 325, 30 S. W. 350, 28 L. R. A. 83; Chicago, B. & Q. R. Co. v. Emmons, 42 Ill. App. 138; Chicago & A. R. Co. v. Glenny, 51 N. E. 896, 175 Ill. 238, affirming 70 Ill. App. 510; Egan v. British & Foreign Marine Ins. Co., 61 N. E. 1081, 193 Ill. 295, 86 Am. St. Rep. 342, affirming 88 Ill. App. 552; Atchison, T. & S. F. R. Co. v. Home Ins. Co., 59 Kan. 432, 53 Pac. 459; Atchison, T. & S. F. R. Co. v. Neet, 7 Kan. App. 495, 54 Pac. 134; Georgia Ins. & Trust Co. v. Dawson, 2 Gill (Md.) 365; Svea Assur. Co. v. Packham, 92 Md. 464, 48 Atl. 359, 52 L. R. A. 95; Hart v. Western Railroad Corporation, 13 Metc. (Mass.) 99, 46 Am. Dec. 719; Monmouth County Mut. Fire Ins. Co. v. Hutchinson, 21 N. J. Eq. 107; Atlantic Ins. Co. v. Storrow, 1 Edw. Ch. (N. Y.) 621; Id., 5 Paige (N. Y.) 285; Home Ins. Co. v. Western Transportation Co., 33 How. Prac. 102, 27 N. Y. Super. Ct. 257; Home Ins. Co. v. Pennsylvania R. Co., 11 Hun (N. Y.) 182; Connecticut Fire Ins. Co. v. Erie Ry. Co., 73 N. Y. 399, 29 Am. Rep. 171, reversing 10 Hun, 59; Sun Oil Co. v. Ohio Farmers' Ins. Co., 15 Ohio Cir. Ct. R. 355, S O. C. D. 145; Kennebec Coal & Ice Co. v. Wilmington & N. R. R. Co., 13 Wkly. Notes Cas. (Pa.) 162, 2 Chest. Co. Rep. 29; Gales v. Hailman, 11 Pa. 515; Kentucky Marine & Fire Ins. Co. v. Western & A. R. R. Co., 8 Baxt. (Tenn.) 268; Louisville & N. R. Co. v. Manchester Mills, 88 Tenn. 653, 14 S. W. 314; Lancaster Mills v. Merchants' Cotton Press Co., 89 Tenn. 1, 14 S. W. 317, 24 Am. St. Rep. 586; Deming v. Merchants' Cotton Press & Storage Co., 90 Tenn. 306, 17 S. W. 89, 13 L. R. A. 518; Houston Direct Nav. Co. v. Insurance Co. of North America (Tex. Civ. App.) 31 S. W. 560, 685; Brighthope Ry. Co. v. Rogers, 76 Va. 443; Swarthout v. Chicago & N. W. Ry. Co., 49 Wis. 625, 6 N. W. 314; Wunderlich v. Chicago & N. W. Ry. Co., 93 Wis. 132, 66 N. W. 1144; Allen v. Chicago & N. W. Ry. Co., 94 Wis. 93, 68 N. W. 873; Sims v. Mutual Fire Ins. Co., 101 Wis. 586, 77 N. W. 908. The principle on which an insurer is permitted to recover against one whose wrongful act has caused the loss is not based on the theory of a direct legal right of the insurer against the wrongdoer, nor on any vested interest in or ownership of the property insured, but on the doctrine of subrogation, which is founded, not on contract, but on the relationship of the parties and on equitable principles for the purpose of accomplishing the substantial ends of justice (Leavitt v. Canadian Pac. Ry. Co., 90 Me. 153, 37 Atl. 886, 38 L. R. A. 152). The right of an insurance company to recover against a wrongdoer, whose negligence has subjected the insurance company to a liability, whether the company's right be based on an equitable subrogation or an express assignment, is traced through the insured; that is, no cause of action can exist on behalf of the insurer unless it existed in favor of the insured. United States v. American Tobacco Co., 17 Sup. Ct. 619, 166 U. S. 468, 41 L. Ed. 1081; Omaha & R. V. Ry. Co. v. Granite State Ins. Co., 53 Neb. 514, 73 N. W. 950. So, though a city ordinance granting a franchise to a water company provided that, if the company failed to furnish sufficient water to extinguish a fire, it should be liable for all damages thereby occasioned, an insurance company, which had paid a fire loss resulting from the insufficient supply of water to extinguish the fire, could not sue the water company, as, conceding that it was subrogated to the insured's rights against the water company, there was no cause of action, as the insured had no rights. (Phoenix Ins. Co. v. Trenton Water Co., 42 Mo. App. 118). It is, however, sufficient if there is a cause of action for negligence against the person responsible for the loss, and it is not necessary to show any positive wrongful act (Hall v. Nashville & C. R. Co., 13 Wall. 367, 20 L. Ed. 594, affirming 11 Fed. Cas. 240). In the case of the loss of property in the custody of a carrier, where the bill of lading expressly excepts the carrier from liability for loss from fire, there is no basis for subrogation unless it appears that the fire was the result of negligence (New Orleans Mut. Ins. Co. v. New Orleans, J. & G. N. R. Co., 20 La. Ann. 302); but an exception of a certain cause of loss, though caused by negligence, being invalid, cannot affect the insurer's right of subrogation. The Montana (D. C.) 17 Fed. 377. See, also, Insurance Co. of North The right of subrogation against a carrier, in view of a clause in the carrier's charter subjecting it to all common-law liabilities, is not affected by the provisions of Rev. St. U. S. § 4282 [U. S. Comp. St. 1901, p. 2943], exempting every owner of a vessel from liability for a loss by fire unless caused by design or negligence of such owner (Houston Direct Nav. Co. v. Insurance Co. of North America [Tex. Civ. App.] 31 S. W. 560). Though it was held in New England Mut. Marine Ins. Co. v. Dunham, 18 Fed. Cas. 66, affirming 8 Fed. Cas. 46, that, until payment of a loss occasioned by the act of a wrongdoer, the latter is not liable to the underwriters, it was held in The Manistee, 16 Fed. Cas. 617, that an insurance company, after notice and proof of loss and demand of payment, may recover of the wrongdoer the amount due on its policy, although it has not made actual payment. The right of subrogation in equity does not depend on the presence of a special clause in the policy conferring the right. Marine Ins. Co. v. St. Louis Iron Mountain & S. Ry. Co. (C. C.) 41 Fed. 643; Pelser Mfg. Co. v. Sun Fire Office, 36 S. C. 213, 15 S. E. 562. The standard policy, however, contains a clause providing, in substance, that if the company shall claim that the fire was caused by the act or neglect of any person or corporation, private or municipal, the 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 the company by the insured on receiving such payment. In view of this clause it was said in Stoughton v. Manufacturers' Natural Gas Co., 165 Pa. 428, 30 Atl. 1001, that though subrogation is based upon equity, and no doubt the statute, in providing for the subrogation of the insurer to the rights of the insured against the party primarily responsible for the loss, meant that it should be administered on equitable principles, the effect of the statute is to put such subrogation on the footing of a legal right, which must prevail unless a stronger equity be shown against it. In the first instance it relieves the insurer, who has paid the policy, from the burden of showing an equity to subrogation, because it is now an express legal right given by the statute and the contract of the parties. The right of subrogation in favor of marine insurers on payment of a loss, whether partial or total, is independent of any abandonment, and exists without it. Hogan v. Manselly, 12 Fed. Cas. 313; The Frank G. Fowler (D. C.) 8 The insurer's right of subrogation is not affected by the failure of the company to comply with the laws regulating insurance companies. St. Louis, I. M. & S. Ry. Co. v. Commercial Union Ins. Co., 139 U. S. 223, 11 Sup. Ct. 554, 35 L. Ed. 154; The Manistee, 16 Fed. Cas. 617; affirmed 16 Fed. Cas. 618; Marine Ins. Co. v. St. Louis, I. M. & S. Ry. Co. (C. C.) 41 Fed. 643; St. Louis, A. & T. Ry. Co. v. Fire Ass'n, 55 Ark. 163, 18 S. W. 43; Id., 60 Ark. 325, 30 S. W. 350, 28 L. R. A. 83; Phenix Ins. Co. v. Pennsylvania R. R. Co., 134 Ind. 215, 33 N. E. 970, 20 L. R. A. 405; Lumberman's Mut. Ins. Co. v. Kansas City, Ft. S. & M. R. Co., 149 Mo. 165, 50 S. W. 281. Moreover, if the insurer has paid the loss, the fact that it might have successfully contested the claim under the policy and relieved itself of liability to the insured does not affect its right of subrogation. The equities between the insurer and the insured are not matters with which the wrongdoer has any concern. United States v. American Tobacco Co., 17 Sup. Ct. 619, 166 U. S. 468, 41 L. Ed. 1081; Amazon Ins. Co. v. The Iron Mountain, 1 Fed. Cas. 586; Sun Mut. Ins. Co. v. Mississippi Valley Transportation Co. (C. C.) 17 Fed. 919; Pearse v. Quebec S. S. Co. (D. C.) 24 Fed. 285; In re Harris, 57 Fed. 243, 6 C. C. A. 320, 14 U. S. App. 506; St. Louis, A. & T. Ry. Co. v. Fire Ass'n, 60 Ark. 325, 30 S. W. 350, 28 L. R. A. 83. So, too, the fact that the insurer was negligent in assuming the risk does not affect its right, as it is under no duty to the wrongdoer to exercise care in insuring the risk (United States Casualty Co. v. Bagley, 129 Mich. 70, 87 N. W. 1044, 55 L. R. A. 616, 95 Am. St. Rep. 421). The right of subrogation extends to reinsurers as well as original insurers, and a reinsurer which has paid to the insurer its propor |