p. 297THE PETREL GUANO CO., Appellant v. THE PROVIDENCE, WASHINGTON INSURANCE CO., Respondent.Headnote
Insurance—Wager policy.—Burden of proof as to insurable interest.In an action on a policy of marine insurance, the complaint alleged ownership of the property in question by the assured, which was denied by the answer. On the trial the only evidence in support of the allegation was the policy of insurance containing the following clause : “S. K. Schwenk” (the assured), “ on account of whom it may concern, in case of loss, to be paid to him or order, does make insurance and cause himself to be insured, etc.” and also written assignments thereof showing title thereto in plaintiS.
Held, that the complaint was properly dismissed; that the burden of proof was on plaintiff to establish an insurable interest, without which the policy was a mere wager.
Before Sedgwick, Ch. J., and Freedman, J.Appeal by the plaintiff from judgment entered in favor of defendant upon the dismissal of the complaint at the trial.
Action upon a policy of insurance containing the following clause:
“ S. K. Schwenck, on account of whom it may concern, in case of loss, to be paid to him or order, does make insurance and cause himself to be insured, lost or not lost, at and from New York via Norfolk to St. Anns with privilege, &c.” The policy was duly introduced in evidence.
Further facts appear in the opinion.
WaTceman & Lotting, for appellant.
Edward D. McCarthy, for respondent.
In every contract of marine insurance, there must be an insurable interest, and in an action on a marine policy, the complaint must allege it, and the evidence establish it. Here it is alleged, that one Schwenck was the owner of the subject insured, which was merchandise under deck, bound to St. Anns. But there is no evidence to sustain the allegation.
p. 298For anything that appears in this case, the policy was a mere wager. Hence, if Schwenk had no interest, he assigned nothing to Eitchie, and the latter assigned nothing to the plaintiff (Marshall, book 1, 97; Murdock v. Chenango Ins. Co., 2 Coms. 210).This action is brought on a policy of insurance, issued on merchandise under deck, shipped on board the bark David A. Preston. It is not a case for a reformation of the policy, nor a case on a contract broader than the policy, of which the policy constitutes only a part, but a case on the policy as it stands. The policy, therefore, represents the final contract between the parties, into which all prior negotiations between them have been merged, and hence parol testimony to change its meaning was properly excluded at the trial.
The policy was taken out by one S. K. Schwenk, “ on account of whom it may concern,” the loss, if any, to be paid to him or order. The complaint alleges that said Schwenk “was, at the time of the commencement of the risk and thereafter until the said loss, the legal owner and possessor of said insured merchandise, and that thereafter for value he duly assigned his interest in the said policy and to the claim and cause of action thereunder, herein set forth, to E. Lucien Eichie and to his assigns ; and that thereafter for value the said Eichie duly assigned the said assigned interest in said claim and cause of action to this plaintiff, who is now the legal and equitable holder and owner thereof. For that the said Schwenk and Eichie were, at the times hereinbefore mentioned, trustees of the plaintiff, and did what they did in and about the insurance and matters aforesaid, as such trustees, and for the benefit of the plaintiff and in furtherance of its business, and- for the purposes for which the plaintiff was incorporated.” These allegations were duly put in issue by the answer, and consequently the burden of proof was upon the plaintiff to establish an insurable interest. Without such proof, the policy was a mere wager. The point was
p. 299distinctly raised, among others, on the motion to dismiss the complaint. The plaintiff failed to make such proof. The most it did was to produce the assignments. They constituted a mere formal title on paper which amounted to nothing, unless Bchwenk had an insurable interest, of which no evidence whatever was given
The complaint was therefore properly dismissed. Under the circumstances, it is not necessary to notice any of the other grounds.
The judgment should be affirmed, with costs.
Sedgwick, Oh. J., concurred.