Crosby v. New York Mutual Insurance

19 How. Pr. 312 | The Superior Court of New York City | 1859

By the court—Moncrief, Justice.

The words in the policy “ for whom it may concern ” must be applied to the interest of the parties, and only the parties for whom it was intended by the person who effects or orders the insurance. (7 Har. and John. Rep., 417 ; 4 Wend. R., 75; 8 Wend. R., 144; 24 Wend. R., 276; 2 Caine’s R., 203.)

Those terms are always controlled by proof of the parties for whose benefit the insurance was in fact intended. (Sharp agt. Whipple, 1 Bosworth’s R., 561.)

Proof was given, showing that William D. Crocker, David Crocker and Theodore Ripley, were the owners of the one-fourth interest in said vessel up to the 24th day of April, 1856, on which day bills of sale therefor (of pre. vious dates) were delivered to Kendell and Richardson, the purchasers.

On opening of the case on behalf of the plaintiffs, the defendants stated that they defended as to this one-fourth solely on the ground of change of interest as to this one. fourth after the inception of the policy, and before loss.

The jury, upon the evidence of the case, found as a matter of fact that the vessel, “ before the 24th day of April, received the fatal injury which caused her subsequent loss, by sinking, on the 5 th or 6 th day of May following.”

The vessel having received a death wound before she was sold, then it is true by the perils insured against, she was damaged while owned by the insured, and they should recover to the extent of that damage, though they sell her subsequently, and before the destruction is visibly complete.

The question then arises, what, on such a state of facts, was the extent of the damage or the loss ? Wherever it appears that neither the assured, nor the underwriters, could exercise any control over the vessel; and that in the course of the voyage the vessel had been placed in such a position that it was totally out of the power1 of the assured or the underwriters to procure its arrival, the voyage being arrested, and the vessel receiving a damage which, considering its nature, rendered it certain that it could not reach its original destination, the loss is absolute and of itself total, independently of the election of the assured to treat it as such.

The loss is, in its nature, total to him who has no means of recovering his property, whether his inability arises from its annihilation, or from any other insuperable obstacle. It is only in case of a constructive, not of an absolute total loss that an abandonment is necessary. (1 Curtis R., 152; 9 Barn. & Cres. R., 411; 2 Maule & Selw. R., 240; Burk. R., 169 ; 3 Bing. N. C. R., 266; 14 Conn. R., 50.)

If the damage was such that the vessel could not get into port, but sunk at sea, the loss was practically total, and in substance and good sense amounted to the sum insured, and the defendants are bound by the very terms of their contracts to pay the whole sum insured. (3 Johns. Cases, 16 ; 3 Bing. N. C. R., 286; 6 Mass. R., 465 ; 7 Ohio R., 283.)

No cases say that the bare existence of the hulk, “ the mere congeries of plank and iron ” of the ship prevent the loss from being total.

The exceptions, therefore, not being well taken, the judgment will be affirmed in conformity to the stipulations between the parties.

Judgment, therefore, will be entered for the plaintiffs in conformity to the stipulation between the parties.