From a judgment in favor of plaintiff after trial before the court without a jury in an action to recover damages for goods destroyed by fire while in the possession of a common carrier, defendant appeals.

Facts: On August 6, 1948, plaintiff delivered personal property of the value of $6,356.46 to defendant, a common carrier, at Mason City, Iowa, for transportation to Los Angeles. The goods were shipped under a uniform domestic bill of lading that provided among other things as follows: “See. 2(c) Any carrier or party liable on account of loss of or damage to any of said property shall have the full benefit of any insurance that may have been effected upon or on account of said property so far as this shall not avoid the policies or contracts of insurance: Provided, That the carrier reimburse the claimant for the premium paid thereon. ’ ’

At the time of the shipment there was in effect a policy of insurance issued by the Continental Insurance Company of New York wherein plaintiff was the sole assured and beneficiary. This policy contained among others these provisions: “It is warranted by the Assured that this insurance shall in no way inure directly, or indirectly to the benefit of any carrier or other bailee. . . . This Company may require from the Assured an assignment of all right of recovery against any party for loss or damage to the extent that payment therefor is made by this Company."”

The goods were destroyed in transit. On February 1, 1949, plaintiff delivered to the Continental Insurance Company, its insurer, a sworn statement in proof of loss and assigned to the company its claim against defendant. On February 3, 1949, the insurance company paid plaintiff the sum of $5,856.46 in satisfaction of its obligation to it and executed and delivered to it an assignment back of the rights which it had acquired under the assignment of February 1st. On April 21, 1949, the Continental Insurance Company entered into a memorandum agreement with plaintiff by the terms of which it was agreed that the insurance company had advanced $5,856.46 to plaintiff on account of the goods destroyed on condition that such advancement in no way impaired the obligation of defendant to pay for the loss, and that an action be commenced in the name of plaintiff against defendant to recover the amount of the loss.

On January 31, 1949, plaintiff sent defendant a statement showing the sum of $6,419.58 due. Thereafter in February, March and April plaintiff sent defendant statements showing a balance of $500 due. When plaintiff’s executives learned of the statements of February, March and April which had been sent through inadvertence they ordered that no further statements be sent to defendant on this account. Defendant offered to,pay plaintiff $500 on April 11, 1949, which offer was refused.

Questions: First: Did section 2(c) of the bill of lading, supra, invalidate the provision in the Continental Insurance Company’s policy with plaintiff which read, “It is warranted by the Assured that this insurance shall in no way inure directly, or indirectly to the benefit of any carrier or other bailee”?

This question must be answered in the negative. So far as our research discloses this question has not heretofore been presented to the appellate courts of California. However, in other states the question has arisen. In Kalle & Co. v. Morton, 156 App.Div. 522 [ 141 N.Y.S. 374 ], the New York court held that a provision similar to that in section 2(c) of the bill of lading prevented the shipper’s insurer from recovering from the carrier. A contrary conclusion was reached in Hartford Fire Insurance Co. v. Payne, 199 Iowa 1008 [ 203 N.W. 4 , 39 A.L.R. 1109 ]. Upon examination of these conflicting cases we are of the opinion that the correct conclusion was reached in Hartford Fire Insurance Co. v. Payne, supra, where Mr. Justice Vermilion in speaking for the court on page 6 [203 N.W.] says:

Second: Is plaintiff seeking double payment for the loss since plaintiff has received $5,856.46 from its insurer?

This question must also be answered in the negative. It is true that plaintiff received $5,856.46 from its insurer on account of the loss which it has suffered. However, the insurance policy specifically provided that the insurer should be subrogated to the rights of plaintiff and might sue in the name of its assured. It is clear that any recovery allowed in the present action would inure to the benefit of the insurance company and not to plaintiff.

Third: Since plaintiff sent three statements to defendant showing a balance of only $500 due which amount defendant offered to pay to plaintiff, has defendant’s liability in excess of such sum been remitted by plaintifff

This question must be answered in the negative. The uneontradieted testimony disclosed that the statements were sent defendant through error, and that there was no intention upon the part of plaintiff to remit any sum due and owing from defendant. Further the evidence discloses that immediately upon learning of the mistake plaintiff’s executive officers ordered that no further statements be sent defendant.

Affirmed.

Moore, P. J., and Wilson, J., concurred.

A petition for a rehearing was denied December 19, 1950.