Hope Oil Mill, Compress & Manufacturing Co. v. Phœnix Assurance Co. , 74 Miss. 320 ( 1896 )

Whiteield, J.,

delivered the opinion of the court.

It is said in May on Insurance, sec. 80 (2d ed.): “ Whoever may be fairly said to have a reasonable expectation of deriving pecuniary advantage from the preservation of the subject-mat-matter of insurance, whether that advantage inures to him personally or as the representative of the rights or interests of another, has an insurable interest. . . . And pledgees,

innkeepers, factors, common carriers, wharfingers, pawnbrokers, warehousemen, and generally persons charged either specially by law, custom, or contract with the duty of caring for and protecting .property in behalf of others as having a right so to protect such property, though not bound thereto by law, or who will receive benefit from the continued existence of the property, whether they have or have not any title to, estate in, lien upon, or possession of it, have an insurable interest. ” See, also, page 651 and section 445, where it is said, treating of nominal and real claimants, that ‘£ the name of the insured may not be stated in the policy, as it need not be. ’ ’ See, as clearly and strongly stating the doctrine, Eastern Railroad Co. v. Relief Fire Insurance Co., 98 Mass., 423; 11 Am. & Eng. Enc. L., 316, 317; Roberts v. Firemen’s Insurance Co., 165 Pa. St., 55, s.c. 44 Am. St. Rep., 642; California Insurance Co. v. Union Compress Co., 133 U. S., 387, a case to which we especially refer, and Rochester Loan & Building Co. v. Liberty Insurance Co. (Neb.), 48 Am. St. Rep., 750.

In Fire Insurance Association v. Merchants & Miners’ Transportation Co., 66 Md., 347, it is said further: “The law is now well settled that when a person has the custody, care, or possession of property for another, and bears the relation to it of consignee, carrier, factor, warehouseman, or bailee, he may, though he has no pecuniary interest therein, and is not responsible for its safe-keeping, insure it in his own name for the benefit of the owners, and the insurance will inure to their benefit upon the subsequent adoption of the insurance, even after the happening of a loss under the policy.” The party insuring in such case may sue for and recover the whole loss, holding the excess over his own interest in the property for the benefit of those who have intrusted the goods to him. 133 U. S., 387, supra. See, also, Traders' Insurance Co. v. Pacaud (Ill. Sup.), 41 Am. St. Rep., 358; Waring v. Insurance Co., 45 N. Y., 606, s.c. 6 Am. Rep., 146.

Let us test the case in hand in the light of these principles. The declaration avers that “on October 28, 1895, there were held by the plaintiff for compression, and compressed but not loaded on cars, and for which compress shipper’s receipt had been issued, for the several railroads before herein named, to be shipped for and on account of the Prairie Cotton Company, of Aberdeen, Miss., and to be delivered to its consignees at the points of destination,” etc. The declaration further avers that £ £ at and before the time of the said fire it had been agreed by and between this plaintiff and the said several railroad companies and the said Prairie Cotton Company that this plaintiff assumed all the risk of loss on the said cotton by fire, and should be allowed and authorized to claim and collect from the said defendant and other insurance companies having policies as aforesaid on said cotton, the amount of insurance due thereon,” etc. It further appears from the declaration that the plaintiff made the contract with the defendant, and paid the premiums, and that the defendant insured the Hope, etc., Company, for the term of three months, against all direct loss or damage by fire, etc., on the property, to wit: “Cotton in bales, held for compression, or compressed but not loaded on cars, and for which a compress shippers’ receipt has been issued for Mobile & Ohio, Illinois Central, or Kansas City, Memphis & Birmingham railroad companies, while contained on the open platforms and under sheds of the Hope Oil Mill Compress & Manufacturing Company, Aberdeen, Miss.; loss, if any, payable to said railroad companies as their several interests may appear at the time of the fire. ” We do not think the word “for” in this

policy, in this connection (££ for which, ’ ’ etc.) is used to indicate ownership of the cotton, but simply the lines over which it is to be routed. We understand the terms of this policy to cover all cotton held by the plaintiff for any owner, situated as described, etc., for which compress shippers’ receipts had been issued for shipment over these railway lines, or any of them. Whether these companies might sue, had the cotton been theirs, as carriers, is not material to the right of the bailee (the cotton being the property of other owners) to sue for any interest it may have, by way of charges or otherwise, and for the amount due owners, which amount would be held by it, when recovered, in trust for such owners. That this suit is properly brought is clear. Ostr. Ins., secs. 277, 278, 280, 282. It is not necessary to go into the question of the distinct rights and distinct subjects of insurance, which, in some cases, under special policies, are held to exist in the owner and the mortgagee, where slips such as this one are inserted in the body of the policy. See, as to this, Phoenix Insurance Co. v. Omaha Loan & Trust Co. (Neb.), 25 L. Rep. Ann., 679, and note thereto. It would seem that the plaintiff, the Union Compress Company, in the case in 133 U. S. (see page 393, at bottom), had given the owners receipts £ £ which provided that the plaintiff should not be liable for the loss of the cotton by ñre,” and a recovery was had. In the policy in this case it is also stipulated that £ £ if, with the consent of this company, an interest under the policy shall exist in favor of a mortgagee or of any person or corporation having an interest in the subject of insurance, other than the interest of the insured,” etc., seeming distinctly to recognize the plaintiff’s interest as the original assured, and such other interests as different, and as contingently arising.

Applying the foregoing principles to the case in hand, we think the court erred in extending the demurrer back to the declaration, and holding that it stated no cause of action. The demurrer to the fourth plea should have been sustained, be-cause the contract was not made with the Prairie Cotton Company, and, in the light of what has already been said, obviously the demurrers to the sixth, seventh,- eighth, ninth and tenth pleas should have been sustained.

The judgment is reversed, the demv/rrers to defendant's said sixth, seventh, eighth, ninth and tenth pleas sustained, and the cause remanded.