Finney v. Warren Insurance , 42 Mass. 16 ( 1840 )

Putnam, J.

The case of Page v. Fry, 2 Bos. & Pul. 242, shows that a tenant in common may insure, and that the genera, averment of his interest in the ship is sustained by evidence of title to an undivided part thereof. But that case did not decide (as the plaintiff’s counsel contended,) that one who owns only a fractional part of a vessel can recover for her full value, where the policy "s upon interest as it shall appear, or as valued. The amount of damages which the plaintiff is entitled to recover is to be determined by the proof of value. What was the interest which the plaintiff had in the Heela ? He was the absolute owner of one undivided eighth part. For that part, he is entitled to recover. Elkanah Finney owned three eighths, and the plaintiff was appointed administrator of his estate, before the policy was made ; and we think the plaintiff may recover for those three eighth parts. He might have made a good and valid abandonment of the property, or have given a legal discharge for the same, upon receiving payment for the loss. And it would make no difference to the defendants whether or not the plaintiff disclosed to them that he held part of the prop erty in his own right, and part of it in trust for others. It would be sufficient to make out the proof of such interest on the trial. The authorities cited in 1 Phil. Ins. 41, establish the right of the plaintiff to recover thus far, viz. for the loss on one half of the brig. And he cannot recover any thing more.

The other half of the brig belonged to David Finney and others. The plaintiff kept the accounts of the brig, received the avails, made the disbursements, and directed the voyages generally, &c. But these circumstances do not create an insurable interest in that half of the brig. And the plaintiff had no lien on the brig, to secure any advancements, if any were made ; of which, however, there is no evidence. As ship’s husbands the plaintiff had no right to make insurance for any part owner, without his authority or consent. That point was determined by Lord Mansfield and his associates in French v. Backhouse, 5 Bur. 2727. But this is not, upon the face of the policy, for another part owner, but for the plaintiff himself. He had no insurable interest in the other half of the brig. He did not purpose to effect insurance for the benefit of the other owners, or for whom it might concern, but for himself. The contract must be construed according to its clear provisions, how much soever we may regret any mistake which may have arisen on the part of the plaintiff in procuring the same.

The result is that the plaintiff recovers for the loss as to one half of the brig, and for a return of premium for short interest, in respect to the other half; and the cause is committed to an auditor to assess the damages accordingly.