Hamilton v. Phœnix Insurance

106 Mass. 395 | Mass. | 1871

Ghat, J.

The plaintiff’s objections to the validity of the award set np in bar of this action are based, 1st. upon the want of authority in a ship’s husband to submit to arbitration a claim of loss under a policy of insurance upon the ship; 2d. upon his having no right to delegate to a third person such an authority; and 8d. upon the form of the submission. But we are of opinion that on the case stated by the parties neither of the objections can be sustained.

I. A ship’s husband as such has indeed no authority to obtain insurance on the interest of his part owners. French v. Backhouse, 5 Burr. 2727. Finney v. Warren Insurance Co. 1 Met. 16. But in French v. Backhouse, Lord Mansfield said, “ It is most usual for all the owners to direct the husband of the ship to act discretionally for them all; ” and it was held that evidence that they were told of the insurance, and expressed no objection to it, was sufficient evidence that they had directed it, to sustain actions by him against them for their proportions of money paid by him for insuring the ship. The plaintiff in the present case is obliged to admit his right to insure the interests of the other owners, as the only foundation of this action ; for if the policy covered his own interest only, he could not deny that his submission to arbitration bound him. Being authorized to insure for whom it might concern, he might have sued for the whole loss in his own name, and, in the absence of any evidence of dissent of those in whose-behalf the insurance was obtained, he would have been authorized, in case of loss, to make an abandonment to the underwriters of the whole interest insured. Williams v. Ocean Insurance Co. 2 Met. 303. Reynolds v. Ocean Insurance Co. 22 Pick. 191.,, Emerigon des Assurances, c. 5, sect. 4. It has been said by judges of high authority, that an agent authorized to effect a policy had authority to adjust or submit to arbitration a claim for a loss under it; and that a broker, authorized to procure insurance, and having the policy in his hands, was authorized to settle such a claim in behalf of the assured. Richardson v. Anderson, 1 Camp. 43, note. Goodson v. Brooke, 4 Camp. 163. Story on Agency, § 58. Blackburn, J., in Xenos v. Wickham, 14 C. B. (N. S.) 435, 464. Lord Cranworth, in S. C., Law Rep. 2 H. L. 296, 321. Without deciding whether such a rule would be universally applicable, we are of opinion that in this case the facts that the plaintiff, for five or six years, had been ship’s husband and the owner of more than half of the ship, and had kept her insured for himself and the other owners jointly, by policies, obtained by him annually, like the one in suit, without any interference by the other owners, warrant and require the court to infer that all the owners authorized him not only to procure insurance on the interest of all in this form, but to settle, by arbitration or otherwise, any claim for a loss under such a policy.

2. It is unnecessary to consider whether the plaintiff could delegate this authority; because the facts show that he knew of the submission entered into by his agent, and by his conduct while the arbitrator had the case under consideration assented to it, and thereby ratified it and gave it the same effect as if he had ‘n person signed the agreement of submission.

3. The submission upon written documents and such evidence as the arbitrator in his discretion might collect, without a formal hearing of the parties, was in a form cot unusual in controversies between merchants, and which the plaintiff, knowing of, did not dissent from, and therefore by necessary implication approved.

It follows, that the award is a bar to this action, and that, according to the agreement of the parties, the plaintiff must be

Nonsuit.