Riggs v. Commercial Mutual Insurance — 25 N.Y. St. Rep. 800

Majority

p. 800

John S. Riggs, Resp’t, v. Commercial Mutual Insurance Company, App’lt.

(New York Superior Court, General Term,

Filed May 6, 1889.)

Headnote

Insurance (Marine)—Insurable interest or stockholders.

A stockholder in a steamboat company has an insurable interest in it* steamers.

Re-ARGUMENT.

The defendant issued to Joseph L. Tobias a policy of insurance upon the steamer Falcon for the sum of $1,000, loss payable to one Andrew Simons. Tobias was, at the time of effecting this insurance, a stockholder in the Merchants’ Steamship Company, which then owned the steamers Sea G-uIL and Falcon. Simons, by an indorsement on the policy, directed the insurance company to pay “to John S. Riggs.” This cause was tried at special term, and judgment rendered in favor of the plaintiff, which judgment was reversed on appeal to the general term, and a new trial ordered. 51 N. Y. Supr. Ct., 466 . At the same time

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a, judgment in a similar action, rendered at special term in favor of the Merchants’ Steamship Company against this 'defendant, was affirmed at general term (Id., 444), and the defendant appealed to the court of appeals. The parties to this action thereupon entered into a stipulation which provided, among other things, as follows : The plaintiff in this case being about to appeal to the court of appeals, it was considered by both parties that if the judgment in the steamship company’s case should be reversed on the ground that the vessel insured under the policy in this case, and that in that it was not a total loss, both actions would necessarily fail; but if the decision of this court in the steamship company’s case, holding that the vessel was a total loss, should be affirmed by the court of appeals, the plaintiff herein would then be entitled to recover, if J. L. Tobias had an insurable interest in the vessel; and it was thereupon agreed that the plaintiff herein should waive his right to appeal to the court of appeals, upon the consent of the defendant that, if the judgment of this court in the steamship company’s case should be affirmed, then the question of J. L. Tobias’ insurable interest in this case should be re-argued at the general term, and that the decision of the general term on such re-argument should be final, so far as the plaintiff was concerned, but without prejudice to any right in defendant to appeal therefrom. The court of appeals thereafter affirmed the decision of this court in the steamship company’s case (11 N. Y. State Rep., 883), and this case comes on for re-argument on the question of the insurable interest of J. L. Tobias.

Oliver Drake Smith, for app’lt; Burrill, Zabriskie & Bur-rill {J. E. Burrill and George Zabriskie, of counsel), for resp’-t.

The stipulation between the parties reads: “It was considered by both parties that if the decision of this (the superior) court in the steamship company’s case, holding that the vessel was a total loss, should be affirmed by the court of appeals, the plaintiff herein would then be entitled to recover if J. L. Tobias had an insurable interest in the vessel, and it was thereupon agreed that the question of J. L. Tobias’ insurable interest in this case should be re-orgued at the general term, and that the decision of the general term on such reargument should be final, so far as the plaintiff was concerned. Whereupon it is agreed that this cause be reargued at general term on the question of J. L. Tobias’ insurable interest,” etc. The only question before this court is, did Tobias have an insurable interest? If he did, the decision of the general term on this question, by a fair interpretation of the stipulation, is to be final in regard to the appeal.

The defendant, in the statement of his brief, says: “Upon, March 15, 1879, the appellant, the Commercial Mutual Insurance Company, issued to one Joseph L. Tobias a policy

p. 802

of insurance upon the steamer Falcon for the sum of $1,000. * * * Tobias was, at the time of effecting this insurance, a stockholder in the Merchants’ Steamship Company, which then owned the steamers Sea Gull and Falcon.” Accepting" this as a correct statement of facts, I think Tobias had an insurable interest in the vessel; for he had such an interest in it as that by its destruction he would suffer pecuniary loss. Seaman v. Insurance Co., 18 Fed. Rep., 250 ; 21 id., 778. An insurable interest may exist without any estate or interest in the corpus of the thing insured. Springfield Co. v. Allen, 43 N. Y., 389 , 395, 396.

The question is one of damages rather than title or possession, and it will be enough if such a relation exists between the assured and the property that injury to it will, in natural consequence, be loss to him. And it is not necessary to show that the insured is the legal or equitable owner. Rohrbach v. Insurance Co., 62 N. Y., 47 . That the policy runs to the plaintiff, and by its terms insures his interest in the vessel (he being neither legally nor equitably the owner of the vessel), does not prejudice the plaintiff’s claim. There is no doubt what property the plaintiff and defendant meant to insure, or that it was that which was destroyed. Rohrbach v. Insurance Co. (supra, 60).

With this opinion, I think the judgment of the special term appealed from should be affirmed.

All concur.