Shaw v. United States

8 Ct. Cl. 488 | Ct. Cl. | 1872

Lead Opinion

Nott, J.,

delivered the opinion of the court:

Two grounds of recovery were pressed upon the court at the trial: first, by the claimant on his own behalf for damages growing out of an erroneous assessment of damages by the Third Auditor; secondly, on behalf of insurance companies which had paid their insurance to the claimant upon his vessel destroyed while in the military service of the Government. The case of Hall & Long v. The Railroad Companies, (13 Wall. R., p. 367,) was also cited to show that insurers may sue in the name of the insured.

As to the first ground of recovery, the court is of the opinion, for reasons that will be stated when the case is finally disposed of, that the claimant is not entitled to recover. As to the second ground, a majority of the judges before whom the case was tried are of the opinion that, so far as the rights of the insurance companies are involved, a recovery may be had on their behalf if proper proof be made of the payment of the insurance and proper averments be inserted in the petition. (Baird’s Case, ante.) Therefore the case will be remanded to the general docket, in order that the petition may be amended so as to show that the suit is prosecuted in part for the use of the insurers; and so that the warrant of attorney, required by Bale I, may be filed by the companies; and for evidence as to the payment of the policies of insurance.

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Dissenting Opinion

Drake, Ch. J.,

dissenting:

I do not concur in the action of the court in remanding this case to the docket for the purpose of enabling the claimant to change his attitude and prosecute the suit for the benefit of his insurers, after his right to prosecute it for his own benefit has been denied by the court. I consider my duty discharged when I pass upon the case that was made by the pleadings and proofs, and submitted to the court for its decision. I do not consider it my duty to suggest the change of the case into a suit for other parties, much less to commit myself in advance to a decision in a particular way of a matter that has not yet been presented by the record to the court for its judgment. That, at the trial, the claimant’s counsel argued the right of the claimant to recover for the benefit of his insurers, did not, in my view, authorize the court to rule anything on that point, for the case submitted was the claimant’s right to recover in his own right and for his own benefit. Beyond the decision of that case I do not feel authorized to express any opinion.