Plaintiff sues to recover §3.000. the value of Ms automobile, which he alleges, was destroyed by fire on 1st. August, 1819, through the negligence of a servant of defendant oompany.
Plaintiff, alleges, that his automobile having beoome disabled on a country road, at a late hour of the night, he engaged the servioes of defendant oompany to tow the automobile to defendants garage.
That on locating said automobile on the road, the said defendant's employee, Gus. Romero, with a view of examining same, struck a matoh near and in the rear of the automobile, with the result that gasoline from the gas tank of the automobile was ignited and exploded.
To this petition, defendant filed various exceptions;exception of no cause of aotion whloh was referred to the merits; a further exception; that having filed a rule on plaintiff to furnish a bond for costs, as required by Section, 4 of Act 136 of 1880. plaintiff failed to do so, but under an agreement between counsel in writing, which was against the law, which letters are in evidenoe to show, that oounsel for plaintiff, under written oonsent by defendant's oounsel, agreed that if a bond was required, he, oounsel for plaintiff would stand on the bond, which was aooepted by defendant's oounsel.
The third exception filed by defendant was for a dismissal of suit as to §1.600., paid plaintiff by the Insurance Company, therefore payment to plaintiff was divested to that extent of his olaim, if he had any against defendant, and finally, not rejecting plaintiff's olaim entirely because of his sot failure to sustain the burden of proof on trial.
The three exceptions referred to were all referred to *662•tRe merits, and the answer, reserving the benefit <Sf the exceptions, claimed there was no liability on the part of defendant; that the accident was oaused through lnadvertenoe, and without fault or negligence on the part of defendant.
On the question of negllgenoe, and the allegations being wrc* insufficient, as olaimed by defendant, the authorities are abundant the other way.
Cyc. V. 29. Sec. 569., “While it is customary to allege that an aot was done negligently, yet where the pleader states faots from which the law will demand a duty, and shows an omission of the duty and resulting injury, an averment that the stKiis aot was negligent is unnecessary/"
On the question whether or not oomplieanoe with the law to give bond for oosts can or oannot be waived we are satisfied the law was enaoted only for special purposes which at all times oan be waived in writing and agreements between counsel in writing as in this case has been done will be sustained by the Courts.
On the question of whether or not plaintiff oan stand in judgment after the Insurance Company has paid a certain amount of loss claim by him from defendant, The case of Hampton vs. N. O. Ry. Co. 124 L. 562, is absolutely convincing.
Quoting from the syllabus; "Where the owner of property which has been destroyed by fire through owners negligence has been paid part of his loss by an in- ^ surer, and thereby beoomes subrogated to the remedies of the assured, an action to recover from the wrongdoer the value of the property destroyed is properly brought in the name of the assured and the insurer is nota neo-essary party such aotion".
"The wrongful aot is indivisable, and gives rise to but one cause of aotion".
And, in the 27 A. 713, Wm. Mc. Cubbin vs. Samuel *663Hastings. Qyoting again from the syllabus; "If the allegations were sufficient to imply fault on the part of defendant, the use of the very word itself was not necessary to fix the responsibility on defendant. If he could have prevented the aot, as alleged, and did not, he was neoes-sarily in fault".
Reaching the facts in this oase, without aa commenting unnecessarily, but simply quoting the portions of testimony substantially what we deem essential in connection with an admission in the answer to the following effeot; "That upon locating plaintiff's automobile upon the road, the said defendant employed, Gus. Romero, who, with a view bf examining same, struck a matoh near and under the rear of plaintiff's automobile, with the result that gasoline from the gas tank of plaintiff&s automobile was ignited and exploded by said matoh." And, to this article, "Defendant, respondent, denies that plaintiff states fully the facts properly in the fifth article of the petition. While respondents employee did strike a matoh to ascertain where planks might be placed for the purpose of raising and moving the automobile, same was not done near and under the rear of plaintiff'd automobile as alleged, but some distanoe therefrom,"
T&e two witnesses, both disinterested, one a Mr. Keiffer and the other a Mr. Romero, an employee of defendant Company, in order to bring plaintiff's machine into defendant's garage testified virtually, under the answer, in our opinion, almost identical, as to the manner they proceeded to get to the maohine, and only differed, when they reaohed the maohine, in one material point. Keiffer contended that Romero when he reached near the maohine which was in a ditch, with a matoh lit a oigarette and got under the oar, and in a few minutes thereafter a fire took place whioh destroyed the maohine. Romero, on the other hand, said, that he was on the side of the maohine, and whilst admitting lighting the match in question, he did not light i* under the machine-but on the side, the *664top part of the matoh exploding, oause unknown to him, and that taking fire oaussd in hie opinion the explosion, and that the heat of the matoh caused the grass where the machine was to ignite, and that grass caused the machine to burn accidentally. It is always customary to oarry lamps so that matohes are not required in works of this character.
It has been testified to by various witnesses engaged in the business of repairing automobiles, that a matoh near or mrtiw anywhere xa where gasoline or explosive matters either aha through negligence or otherwise, oome in oontact with gasoline, danger is iminent. This was known to Romero, and if not known to him it should have been known by him, and his aots are the aots of defendant.
It has been proven further, that so far as the value of this maohlne is oonoerned, that plaintiff had sold it baok to it's original owners, and had purchased another maohlne for which he was to have paid quite a large amount in oash difference the moment the maohlne in question could have been delivered. He collected from the sale of the wreok of the maohlne the sum of #300. and gave credit for that amount to defendant. The evidence satisfies us, that the transaction had been fairly and honestly ooncluded, and there was no deception of any kind practiced in any way by plaintiff on defendant. The aot committed by the agent was the aot of the defendant.
The Judge of the lower Court saw and heard the witnesses. He was satisfied with their statements, and rendered judgment fot the amount of plaintiff's claim less $300.00 admitted to have been oolleoted by plaintiff.
For the reasons herein assigned, it is ordered, adjudged and deoreed, that the judgment of the lower Court be and the same is hereby affirmed, with costs of both Courts.
Judgment affirmed.