Rourke v. Union Ins. Co.

APPELLANTS; *May 31.

AND

'THE

UNION INSURANCE

COM- RESPONDENTS. PANY (DEFENDANTS)...................

ON APPEAL FROM THE SUPREME COURT OF NEW BRUNS- WICK.

I am of opinion that the judgment of the Supreme

Court is right. The action of the defendant company, in so far as its dealing with the interests of the assured was concerned, was perfectly proper under the " sue and labour " clause of the policy; it was within their authority to do all that they did do in respect to that interest; it was equally within their power to act as they did by reason of the abandonment to them of the assured's interest. At all events it is absolutely out of the questionfor the plaintiffs to deny the authority the respondents to act as they did, whether as the agents of the assured or by virtue of their having a right to take possession of the wreck upon her abandonment by James Rourke on behalf of the assured. The co r. position of the company then was that of a joint owner with the plaintiffs' of the vessel in question, and the only question upon this appeal is, whether the acts of the respondents' agents amounted to a conversion of the plaintiffs' interests

I am strongly convinced that the conduct of James Rourke, who, as ship's husband, was the agent of the plaintiffs in respect of this vessel, precludes the plaintiffs from bringing this action. If, as they contend, the vessel was not a total wreck, and could with advantage to the owners have been repaired and brought safely to port, his relationship to the plaintiffs as ship's husband most certainly had not ceased. It was his duty in their interest to have done everything possible to protect them. The evidence convinces me that he was perfectly satisfied that there was a total loss, and that it would be for the benefit of all concerned to let the insurance company deal exclusively with the wreck. I do not, however, wish to place my judgment upon this ground. The defendant company were in the position of co-owners with the plaintiffs of the wreck, and the question as to whether the alleged sale amounted to a conversion depends altogether upon what the result of that sale was. If the effect of it was to deprive the plaintiffs of their interest in the property, or to amount to a destruction of the property, so that under no circumstances could they in the future have any benefit from it, then, according to the authorities, a conversion would have been complete; but no such result followed from the sale in question; the effect of the sale was the very reverse; the assured owners had abandoned the property; James Rourke, as agent of the plaintiffs, acted as if he had abandoned the property, but the purchasers at the sale saved it and brought the wreck to a place of perfect safety, where the plaintiffs might have come in less than a day and taken possession of it. The plaintiffs were in fact subsequently deprived of their right of possession, but not by reason of any sale of the property, but by reason of the decree of the United States District J. Court, the court having unquestionable jurisdiction, as respects this vessel, to decree her forfeiture and sale.

If the plaintiffs now find themselves deprived of their interest in the vessel it is not through any action of the respondents, it is solely in consequence of the action of Keene claiming for salvage services in respect to the vessel, and their own inaction in not making their defence in the United States court if he were not entitled to the decree he had obtained by reason of his not having rendered the salvage services upon whieh that decree was based. The authorities are numerous and the law is clear as to what constitutes a conversion by one joint owner against his co-owner.

In Mayhew v. Herrick (1) it was decided that a mere sale of a property was not- enough, though for such a disposition of a property as amounted to a destruction of it one tenant in common would be liable in trover to his co-tenant.

In Jacobs v. Seward the Lord Chancellor said:

rights therein, and being denied the exercise of such rights. There was the case of a ship being taken possession of by one tenant in common and sent to sea without the consent of his co-tenant.

In that case it THE was held that the property was destroyed by the act of one tenant in common, and therefore trover would lie in respect of the co-tenant's CoMPANY.repc share. But where the act done by the tenant in common is right in Sedgewick itself, and nothing is done which destroys the benefit of the other co- * tenant in common in the property, there no action will lie, because he can follow that property as long as it is in existence and not destroyed.

The case referred to by the Lord Chancellor was Barnardiston v. Chapman cited in Heath v. Hubbard (1). In that case the plaintiff was tenant in common of one moiety of a ship and the defendants tenants in common of another moiety. The defendants had forcibly taken the ship out of the plaintiffs' possession, secreted it from him, changed its name and afterwards handed it over to a third party who sent it on a voyage in the course of which it became a total loss. The jury having found that there had been a destruction of the vessel by the defendants' means the court refused to disturb the verdict. The law on the subject is well stated in Clerk & Lindsell on Torts (2).

If two or more people own a chattel either jointly or in common, one of them cannot bring an action against the others merely for an interference with his right of possession, since the possession of each is alike lawful, and the manner of its exercise is left by the law to be settled among the parties themselves.

But If one co-owner has deprived the other of all possible use and enjoyment of the property, either in the present or the future, then he has been guilty of an act of conversion. It is well established that one tenant in common cannot maintain an action against his companion unless there has been a destruction of the particular chattel or something equivalent to it. Short, therefore, of "destruction or something equivalent" one coowner may exercise the full rights of property over a chattel in defiance of the wishes of the other co-owners, without being guilty of a tort. He may destroy its identity by the process of manufacture, lie may create a lien on it, he may sell it, and this immunity extends to those who stand in his shoes. If a sheriff seizes partnership pro- (1) 4 East

P.

If In the present case the company had unquestionably S e the right for the protection of their own interests to take the cargo from the wreck, as well as her rigging and other appurtenances; they had equally the right, in their own interests, to restore the rigging and appurtenances to the vessel, with a view of saving her if possible. They had a right to employ parties, on their own account, to use all possible means to make such repairs on the vessel as would enable her to be brought to a place of safety. Whether there was a sale or not, all this was done by the company, or by persons acting with the authority of the company, and there was nothing done, so far as they were concerned, which at any time prevented the plaintiffs from taking possession and treating the vessel as if no disaster had ever overtaken her.