199 A.D. 556 | N.Y. App. Div. | 1922
Lead Opinion
This action is brought by Philip Lewis and Max Lewis to recover from the defendant the sum of $142,268, the amount of certain insurance policies issued by the defendant to the Green River Distilling Company, Incorporated. The defendant demurred to the complaint on three grounds: First, that the complaint does not state facts sufficient to constitute a cause of action; second, that if the plaintiffs have any interest in the policies mentioned in the complaint they have no legal capacity to sue, for the reason that the' Green River Distilling Company, Incorporated, to which the policies were issued, and which is the insured named therein, is the proper party to maintain the action; and, third, that if the plaintiffs have any interest in the policies in question there is a defect of parties plaintiff, in that the Green River Distilling Company, Incorporated, is not made a party plaintiff.
The exact question here to be determined has not been before the courts of this State in recent years. In fact, it seems to have been taken for granted that the real owner of goods destroyed by fire can sue in his own name to recover the loss.
The appellant, however, contends that as the Green River Distilling Company, Incorporated, is not a party plaintiff, its demurrer should be sustained. It is also claimed by the appellant that there is such a unity of interest in the proceeds of the policies sued upon that the Green River Distilling Company, Incorporated, is a necessary party plaintiff. The appellant relies largely upon the case of Wilson & Co., Inc., v. Hartford Fire Ins. Co. (190 App. Div. 506; affd., without opinion, 229 N. Y. 612). In the Wilson case the action was brought by the owner of certain live stock destroyed by fire while in the yards of the Kansas City Stock Yards Company. The defendant answered, making the insurance policy a part of its answer, and the plaintiff replied, admitting the terms of the policy. A motion was then made by the defendant for judgment on the pleadings. At Special Term it was held that the complaint stated a good cause of action. Such order was reversed by this court on the ground that, under the contract of insurance sued upon, which
It is obvious that, had the question determined in the Wilson case arisen solely on the demurrer to the complaint, the court would, in such event, have held that the complaint set forth a good cause of action. As stated by Mr. Justice Page, the court took into consideration the terms of the policies annexed to the answer. The policy in question in the Wilson case showed clearly that it was the intention of the insurer and the insured that all losses should be payable to the president of the stock exchange, to be by him distributed among those who were owners of the lost property.
In the complaint in the case at bar it is specifically alleged that the distilling company had agreed to effect the insurance upon a valuable consideration for the benefit of the insured, who were the holders of warehouse receipts now owned by' the plaintiffs. It is clear from the complaint that a contractual relation existed between the parties, and that the distilling
While it has been held in some of the recent cases that a warehouseman procuring insurance becomes a trustee of an express trust and may sue as such trustee under section 449 of the Code of Civil Procedure, still the courts have not gone so far as to hold that the beneficiaries or owners of the property destroyed cannot sue. Indeed, such right seems to have been assumed. The provisions of section 449 of the Code are permissive, and simply authorize the trustee of an express trust to bring suit without making the beneficiary of the trust a party. (Hubbell v. Medbwry, 53 N. Y. 98.) In the case last cited Judge Folger, in commenting upon the rights and powers of a trustee of an express trust, says: " It is true that the plaintiff as trustee had no cause of action before that time. Nor had he any cause of action then, unless those whom he represented, then had one. * * * Nor does section 113 of the Code of Procedure [now Code Civ. Proc. § 449] affect the question. That is permissive. The trustee of an express trust may by it sue without joining the beneficiaries. It does not forbid an action by them, or by him with them.”
Greenfield v. Massachusetts Mut. Life Ins. Co. (47 N. Y. 430) and Cone v. Niagara Fire Ins. Co. (60 id. 619), cited in the Wilson Case (supra) as authority for the proposition that the policy there under consideration constituted the president of the exchange a trustee, do not go so far as to hold that the owner of the property destroyed is not a proper party plaintiff, or cannot maintain an action against the insurer. The Greenfield case, first cited, was an action brought upon a fife insurance policy made payable to the “ assured, his executors, administrators, and assigns.” The beneficiaries were the wife and mother of the assured, who were to receive $2,000 and $1,000, respectively. The action was brought by the personal representative of the deceased, and the question was raised by the insurance company as to the authority of such representative to bring the action. Judge Grover, in his opinion, says: “ I think the action originally was properly brought by the
In the Cone case the action was brought against the Niagara Fire Insurance Company by a creditor or incumbrancer of the alleged owner of certain premises, and it was held that the owner need not be joined as a party, since it was alleged that only the plaintiff had any interest in the recovery.
While the above cases are in point upon the question as to whether or not a warehouseman, talcing out insurance for the benefit of third parties, can bring an action upon the policy as a trustee under section 449 of the Code of Civil Procedure, such cases do not seem to have any bearing upon the complaint in the case at bar. The general rule seems to be that, where a warehouseman takes out insurance for the benefit of third parties whose goods may be from time to time in his warehouse, he acts, in the first instance, as an agent for the owners of such goods (Stillwell v. Staples, 19 N. Y. 401), and is also deemed to be a trustee of an express trust. In his opinion in the Stillwell case, Judge Selden says it is a “ familiar doctrine that where one acting as agent, although without any actual authority, makes a contract for the benefit of another, the latter may, at any time afterwards, so long as the contract continues in force, upon being apprised of its existence, adopt the act of the agent, and thus entitle himself to all the advantages of
It is claimed by the respondent that the complaint in the case at bar is founded upon, and is similar to, the complaint in the case of Utica Canning Co. v. Home Insurance Co. (132 App. Div. 420). The Utica Canning Company brought an action against the Home Insurance Company (this defendant) to recover certain insurance upon goods owned by the plaintiff and in a warehouse which was destroyed by fire. The warehouseman had taken out a policy which contained a clause which covered the property of others held “ in trust or on commission.” The Utica Canning Company had forwarded the goods in question under a contract of sale. The contract was canceled, and, pursuant to an agreement between the parties, the goods remained' in the purchaser’s warehouse awaiting a resale. A fire occurred and the insurance company paid all of the alleged loss, but did not pay anything to the plaintiff, Utica Canning Company. An action was brought by it setting forth such facts,, and that the canning company had made demand upon the owner of the warehouse for its part of the insurance money, which request was refused. The warehouseman was made a party defendant to the action, and the case proceeded upon the theory that the plaintiff, which was the owner of the goods destroyed by fire, had a right to sue the insurance company. The action was at law and founded upon the contractual relations which existed between the parties.
The position taken by the plaintiffs in the case at bar is consistent with numerous decisions and also with that taken by the insurance companies in numerous cases. In the earlier cases the companies even went so far as to assert that the warehouseman had no right to collect for anything but his own interest, and that the owner must bring suit for his own loss, he being the real party in interest under the Code. (DeForest v. Fulton Fire Ins. Co., 1 Hall, 84; Walsh v.
Commissioner Dwight in Pitney v. Glens Falls Ins. Co. (1875) (65 N.Y. 6) lays down the rule that “ ‘ an action on an insurance policy may be brought either in the name of the party by whom or for whom it is made.’ ” (Sargent v. Morris, 3 B. & A. 280; Hubbell v. Medbury, 53 N. Y. 98; Cridler v. Curry, 66 Barb. 336; Bort v. Snell, 39 Hun, 392.) It, therefore, follows that the owner of property insured by a warehouseman can sue to recover the loss sustained by fire unless there is some clause in the policy to prevent it.
The complaint in the case at bar states that the plaintiffs are the owners of warehouse receipts representing a very large quantity of whisky of the value of over $140,000. It does not appear upon the face of the complaint that any one else has any substantial interest in the insurance policies sued upon. The plaintiffs have chosen this forum in which to bring the action to recover upon' the policies. The defendant, which has full knowledge of all of the facts and has upon file all of the proofs of loss relating to the fire in question, has not answered. Assuming all of the facts stated in the complaint to be true, as we must, a cause of action has been set up against the defendant. It may appear that no one is interested in the recovery, except the plaintiffs. If the defendant thinks it necessary to bring in any additional parties defendant, that can be accomplished by making a proper case. The
The order appealed from should be affirmed, with ten dollars costs and disbursements, with leave to defendant within ten days to withdraw demurrer and to answer on payment of said costs and the costs awarded to plaintiffs by the order appealed from.
Clarke, P. J., Laughlin and Smith, JJ., concur; Greenbaum, J., dissents.
Dissenting Opinion
The grounds of the demurrer are insufficiency of the facts in the complaint; that plaintiffs have no legal capacity to sue; and finally, that there is a defect of parties plaintiff.
The allegations of the complaint pertinent to this appeal are that the defendant is a domestic fire insurance corporation; that the Green River Distilling Company, Incorporated, is a foreign corporation which, prior to the 24th day of August, 1918, for a valuable consideration, “ issued and delivered to divers
It is also alleged in the complaint that subsequent to the
It thus appears that the policies were issued to and in the name of the Green River Distilling Company, Incorporated (hereafter referred to as the distilling company), whose property was covered by the policies together with that of unnamed third parties, who at the time of the alleged fire were the owners of whiskies stored in its warehouses.
It is not disputed that under such policies the owners of the warehouse receipts were beneficiaries as though they were specifically named therein. Nor is there any difference between the parties that circumstances may arise when an unnamed beneficiary may maintain a .separate action under a policy issued by an insurance company to recover his loss, without joining therein the party to whom the policy was issued. Thus, where the only interest left in a policy is that of the beneficiary, other interests therein having been adjusted or released, a separate action may be maintained by the beneficiary under the policy.
It seems also to be the settled law that where the person to whom such policies are issued, occupying as he does a trust relationship to others whose property is therein insured, refuses or neglects to assert the rights of the beneficiary, or where the interests of justice would require that the trustee be not permitted to collect or prosecute, then an action is maintainable by the beneficiary by joining the trustee as a party to the action. Illustrations of the rules above mentioned will be found in Utica Canning Co. v. Home Ins. Co. (132 App. Div. 420) and Wilson & Co., Inc., v. Hartford Fire Ins. Co. (190 id. 506; affd., 229 N. Y. 612).
The situation that confronts us here is that the distilling company not only is a trustee for the holders of whisky receipts, but is itself interested in the subject-matter of the insurance to the extent of its ownership of property covered therein.
In repudiating the acts of-the distilling company looking to the collection of the insurance claims, plaintiffs have assumed the position that they alone are entitled to collect the full amount of the policies in suit to the exclusion of the distilling company. They have ignored the interests of that company under the policies, and arbitrarily relegated it to outstanding policies other than those in suit, upon allegations that the remaining policies are sufficient to cover the losses of the distilling company, and that the insurance companies which issued said policies are abundantly solvent to meet their obligations.
The plea of solvency has scant merit, since it might happen that an insurance company solvent to-day may become insolvent before the day when judgment is entered against it. In Wilson & Co., Inc., v. Hartford Fire Ins. Co. (190 App. Div. 506) the court clearly recognized the rule in actions upon policies of insurance of the general character of those outlined herein, that the person to whom the policy is issued stands in the relation of a trustee to others whose property rights are insured therein and is the one who is primarily obligated to bring an action under the policy for all the parties concerned. The court there stated: “ It was clearly the intention of the parties to the policy that the loss should be adjusted by and paid to the president to avoid a
In the instant case the distilling company is not only acting in a capacity similar to that of the president of the Kansas City Live Stock Exchange, but in addition has an actual financial interest in the policies of insurance. It seems to me that, in principle, the rule above quoted is peculiarly applicable to the facts in this case.
Each policy is the basis of a single action. This has been expressly held in Lewis v. Guardian Fire & Life Assurance Co. (181 N. Y. 392) and 0’ Neil v. Franklin Fire Ins. Co. (159 App. Div. 313, 317). In the latter case the court said: “ Separate actions could not have been maintained by plaintiff and defendant Crimmins to recover separately the amounts payable to each under this' policy.” (Citing Lewis v. Guardian Fire & Life Assurance Co., supra.)
It is quite evident that the rule announced in the Lewis Case (supra) is appropriate here since the plaintiffs and the distilling company have common interests in the enforcement of the policies of insurance.
It is difficult to understand under what rule of law plaintiffs may arbitrarily oust the distilling company from its rights under the policies in suit and compel it to resort to other outstanding policies. If plaintiffs have the right to select the policies upon which they alone can bring suit, then the same
It is clear that the distilling company is a necessary party. It only remains to determine whether it is a necessary party defendant, or whether it should have been made a party-plaintiff. As already pointed out, the plaintiffs in their complaint repudiated the acts of the distilling company in its capacity as trustee, and also ignored that company’s financial interests in the policies in suit. The distilling company, having performed its duty as trustee, and no fact being alleged that tends to show that it should not be permitted to act as such trustee, and it not having refused to join with the plaintiffs in its action against the defendant, it cannot now be claimed by plaintiffs that the distilling company is a necessary party defendant.
Section 448 of the Code of Civil Procedure provides: “if the consent of any one, who ought to be joined as a plaintiff, cannot be obtained, he may be made a defendant, the reason therefor being stated in the complaint.”
But the distilling company was not asked to consent to join the plaintiffs, hence it follows that it cannot be joined as party defendant. It also necessarily follows from the facts alleged that, since the distilling company has direct interests in the policies in suit, they are necessary parties plaintiff, and hence that the omission to join them as such is a fatal defect in the prosecution of this action.
The order of the Special Term should be reversed, with ten dollars costs- and disbursements to' appellant, and plaintiffs’ motion for judgment on the pleadings should be denied, with ten dollars costs, and defendant’s counter-motion for judgment on the pleadings should be granted, with leave to plaintiffs to serve an amended complaint upon payment of taxable costs and disbursements to date.
Order affirmed, with ten dollars costs and disbursements, with leave to defendant within ten days to withdraw demurrer and to answer on payment of said costs and the costs awarded to plaintiffs by the order appealed from.