Insurance Co. of North America v. Forcheimer & Co. , 86 Ala. 541 ( 1888 )

McCLELLAN, J.

It is not denied that the purpose of the policy was to insure property, the general ownership of which was in the appellees. It may be admitted that the steamship company had an insurable interest in the subject-matter insured. The company had the custody and possession of it, for the purpose of transportation; and had the property been' lost in the transit, through the fault of the carrier, or its agents or employees, the steamship company would have been liable to appellees for its value. Loss, without fault on the part of the carrier, would have entailed no liability on it under the stipulations of the bill of lading. In effecting the insurance, the agents of the steamship company went much further than was necessary to cover the interest of their principal, and protect it from ultimate liability to the owners of the -property. The insurance is against “perils of the seas, fires, jettison, barratry . and all other perils, losses and misfortunes.” These were not the risk of the steamship company. It was under no obligation to save the plaintiffs harmless from losses resulting from these perils. On the contrary, it was expressly stipulated in the contract of shipment, that the carrier should not be liable to the owner for any loss or damage arising from any one of a number of specified causes, among which were all of those embraced in the policy of insurance, except such as involved fault on the part of the carrier, or on the part of its agents and employees. This fact, in our judgment, tends strongly to show that it was the intention of the insurers and the agents of the carrier to cover, not the latter’s s]Decial interest in, and limited liability on account of the subject-matter of the policy, but the general ownership of the property. There is an express stipulation in the policy, to the effect, that the insurance evidenced by it shall not enure to the benefit of any carrier. This, we think, can not be given any field of operation consistent with the contention of the appellant, that the steamship company was the beneficiary under the contract. The contract also provides, that the agents of the carrier might agree to insure third persons, and consummate such insurance by entries and notices thereof to the insurer. This is wholly incomputable with appellant’s theory, that these agents, or their principal, the steamship company, and not the third persons thus contracted with, were to be indemnified against loss. The stipulation, that cancellation shall not prejudice pending risks, must refer to the interest of third parties, and would have been wholly useless and meaningless, if the only parties to the transaction had been the insurer and the nominally insured. It is not attempted to be denied, that the owners of other merchandise, shipped on and lost with the steamship Videtie, and which was insured at the same time, under the same circumstances, and by the same methods that appellees’ goods were insured, were paid the amount of their respective losses; and no question as to the propriety of this course was made by any of the parties, nominal or beneficial, to the contract. It is in evidence, that the alleged cancellation was consequent upon the information that the consignees had effected other insurance on their goods; and the effort to cancel must have proceeded on the theory, that the insurance secured in Mobile covered the same interest in the property as that effected in New York; and this fact may, therefore, be looked to, as showing a construction by the insurance company and the steamship company, that the New York policy covered the general ownership, and protected the appellees. These considerations force us to the conclusion, reached in the court below, that the insurance was intended to cover the general property in the merchandise, and was for the benefit of Forcheimer & Oo.; and in consonance with the intent thus arrived at, as well as in conservation of the natural arrangement of the opening words of the policy, we hold, that the insurance was effected, not to cover the agents of the steamship company, but on account of whom it might concern, and enured to the benefit of the owners of the goods entered on the open or running policy, among whom were the plaintiffs.

It follows, that the insistance of the appellant, that there was a valid cancellation of the policy, consummated on June 16th, 1887, by and between the agent of the steamship company and the insurer, must stand or fall, as it shall be determined that Best, who at that time was the regular agent of the steamship, company, was, with respect to the cancellation, the agent of the appellee, or that he was not. Whether Best is to be regarded as the agent of the appellees in effecting the insurance, is, at least, open to grave doubt. It is certain that, in some sense, he represented the appellant, and was authorized to agree with third parties for the entry of risks on the open or running policy, and that he did so agree with appellee’s consignor for the risk taken on the goods involved here. It may be, that he acted in that matter in a dual capacity, as the agent of both the insurer and the insured. We deem it unnecessary to fix his status with respect to the act of procuring the insurance. Even admitting that, in entering the goods of the appellees on the open policy of the appellant, he represented the former, it by no follows that he was authorized to cancel the insurance thus made. The policy itself, to our minds, provides against such a cancellation to the prejudice of appellees’ right under it; and the law appears to be well settled, that authority to procure is not authority to cancel insurance once made. In England it is held, that “the cancellation of the policy being an act which destroys the relation, not only of the assured and the insurer, but of the insurance broker as agent for the assured, can not for that reason be justified by any supposed authority implied from the existence of that relation, or from the fact of the policy being left in the broker’s hands, and consequently depends for sanction on the express authority of the principal.” — 1 Arnould, Marine Insurance, 190. And in this country it is held, that “an agency to procure insuranee is ended when the insurance is procured, and the policy delivered to the principal; and the agent employed to procure the insurance has no power, after the policy is so delivered, to consent to a cancellation.”—Rothschild v. Cent. Ins. Co., 7 Ins. L. J. 639; Bennett v. City Ins. Co., 51 N. Y. 243; Latoix v. Germania Ins. Co., 27 La. Ann. 113.

The policy sued on was delivered to the insured, in the only way possible under the circumstances, and in the way contemplated by the parties, before the alleged cancellation. The City Court rightly found, “that neither said Best, as such agent of such steamphip company, nor defendant, had from the plaintiffs any express authority or consent that they, or either of them, might cancel said insurance.” There could have been no implied authority, as we have seen, for such cancellation; and we accordingly hold that there was no cancellation of the policy.

Section 2594 of the Code provides, that “actions on promissory notes, bonds, or other contracts, express or implied, for the payment of money, must be prosecuted in the name of the party really interested, whether he has the legal title or not.” • A contract of insurance is one within the meaning of this statute.' — Perry v. Merchants’ Ins. Co., 25 Ala. 355. The plaintiffs being, as we have held, the beneficiaries under the policy — the parties really interested in the contract — the suit was, under the section referred to, properly instituted in their names. But we apprehend that, even in the absence of the statute, suit on a policy running to nominal parties, for the benefit of “whom it may concern,” is properly instituted in the name of the parties intended to be protected.—2 Arnould, Mar. Ins. 1120; Daniels v. Citizens’ Ins. Co., 5 Fed. Rep. 425, and cases cited.

There was no agreement, and no evidence offered in the court below, as to the rate of interest in the State of New York, where the contract was made and was to be performed. Under the decisions of this court, the table of interest rates in the several States, published with the acts of the General Assembly, is only prima facie evidence of those rates, to be offered as other evidence, subject to the right of controversy by the party against whom interest is claimed. Courts can not take judicial notice of the rates thus published. The judgment below was for the amount of the policy, with interest from the institution of the suit, amounting in all to the sum of ten thousand four hundred and -twenty-five dollars. To thus include interest, without evidence of the rate applicable to the contract, was error, for wbicb tbe judgment must be reversed.—Clarke v. Pratt, 20 Ala. 470; Harrison v. Harrison, 20 Ala. 649.

It is insisted by appellees, that if tbe case is reversed on this ground alone, tbe judgment below should be corrected, and here rendered for tbe amount of-tbe valued policy, with interest at 8 per cent., from tbe time of trial in the City Court, on tbe assumption that tbe liability was then merged into tbe Alabama judgment, wbicb bears interest at that rate. "We do not think this can be done, for tbe reason, that a judgment of reversal here operates to expunge the judgment in tbe court below, and to leave tbe claim for interest precisely where it was before tbe rendition of that judgment, dependent upon tbe laws of New York, of which there was and is no proof.

Under tbe authority of Harrison v. Harrison, supra, however, judgment may be here rendered for ten thousand dollars, the amount of tbe policy, without interest, and it is accordingly so ordered.

Tbe view we have taken of this case renders it unnecessary to consider tbe cross-assignments of error.

Reversed and rendered.