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McCready v. Woodhull

34 Barb. 80 | N.Y. Sup. Ct. | 1861

Lead Opinion

Clerke, J.

Each owner of a ship has a distinct and separate interest as a tenant in common; and each owner may, *83or may not, as he deems fit, insure his particular share. He is under no obligation whatever to insure for the benefit of the others, or to unite with them in a joint act to do so, so as to become liable for the whole premium, if the others should neglect or be unable to pay it. If he gives authority to any agent to insure for him, it necessarily means to insure his share; and in order to make him liable jointly with the other owners for the premium on a policy for the whole vessel, the proof must be clear that he gave express authority, to subject him to such a liability. This certainly cannot be inferred from the general authority of the ship’s husband; whose duties are restricted to providing a proper outfit for the vessel, to see that she is properly repaired and fitted for the voyage, and furnished with provisions and sea stores, &c. But it is not a part of his general duty to insure; if he does this, it must be by a special authority. If he obtains instructions from every one of the owners, he has only authority to insure for each separately to the value, of his separate interest; to make them all liable jointly, each for the other, they must enter into a joint undertaking to that effect, knowingly and expressly.

Giving the testimony in this case all reasonable effect in favor of the plaintiffs, the most that can be fairly deduced from it is, that some of the defendants authorized the captain to insure for the particular share of each. Nothing satisfactory appears in it to show that they intended to make themselves jointly liable for the whole. The defendants had no joint interest in the insurance, and, therefore, no joint liability in relation to it; unless, as I have said, they voluntarily incurred it. I do not think the referee had any ground for concluding that they had done this.

The judgment should be reversed and a pew trial ordered ;• costs to abide the event,

Sutherland, J. concurred.

*84[New York General Term, February 4, 1861.

Dissenting Opinion

Ingraham, J. (dissenting.)

The grounds on which this appeal was taken related to a question of fact. Upon this question there was conflicting testimony, sufficient to have sustained the finding of the referee as to the joint liability and under such a state of facts I do not think we should interfere with the finding.

It is conceded that the referee erred as to the amount, as his report includes a portion which had been paid by two of the owners. That amount, with interest, should be remitted, and the judgment affirmed for the residue.

New trial granted.

Clerke, Sutherland and In graham, Justices.]