Reed v. Pacific Insurance , 42 Mass. 166 ( 1840 )

Shaw, C. J.

Although, by usage, one who procures insurance to be made, in his own name, for another person or whomsoever it may concern, may maintain an action in his own name, Davis v. Boardman, 12 Mass. 80, and Ward v. Wood, 13 Mass. 539, yet it is upon the presumption that his agency is continued, and not disavowed by the party in real interest. But such person is deemed a mere agent and trustee for the party interested, and if, before suit brought, his authority is disavowed or revoked by the party interested, he cannot maintain an action, unless he shows some express provision, such as “payable to him in case of loss,” or some lien or other interest, which the party interested cannot defeat. Copeland v. Mercantile Ins. Co. 6 Pick. 198.

In this case, the insurance is in terms made for Elias Reed, and the facts show that it was made by his order, to cover his interest. The policy therefore enures to his benefit, and the right of action follows it. He therefore had a right to assign the policy and his right to recover a loss thereon, as a chose in action, to Clarke. He did so assign it, and gave notice thereof to the defendants. The right and authority of the plaintiff to sue for Elias, was thereby superseded. Nor does he appear to have any interest of his own in the policy. The insurance was made by him, not as a broker or general agent, but in pursuance of a specific order, by which he was requested to procure the insurance and forward the policy. By undertaking to execute the order, he bound himself to comply with the terms, and forward the policy ; and this precludes the supposition, that he was to have any lien upon it, or interest in it. As ship’s husband, for the general management of the vessel as a freighting vessel, he had no lien upon this policy for his balance. If he gave his own note for the premium, which does not distinctly appear, it would probably make no difference; because, by the terms of the policy, the premium is to be deducted from the loss, to whomsoever it may be paid.

Plaintiff nonsuit