Sleeper v. Union Insurance Company.

they received without objection. It was against such a loss as they have admitted, that they contracted to indemnify the plaintiff.

Defendants defaulted. APPLETON, C. J., WALTON, DICKERSON, DANFORTH and LIBBEY, JJ., concurred.

SLEEPER V. UNION INSURANCE COMPANY.

(65 Me. 385.)

Marine insurance “for benefit of whom it may concern”. who

may recover on policy. The part-owner of a vessel mortgaged his share and then procured an insurance on the vessel "for the benefit of whom it may concern;" a loss occurring and the partowner being dead, held, (1) that his administratrix could recover the entire amount in an action on the policy, and (2) that payment of the judgment in her favor by the anderwriters was a bar to a suit by the mortgagee.*

A

CTION of assumpsit on a policy of marine insurance. The opinion states the case.

C. P. Stet. on, for defendants.

A. P. Gould & J. E. Moore, for plaintiff.

APLETON, C. J. E. K. Alexander, being the owner of one-fourth of the Abbey Brackett, mortgaged the same to the plaintiff to secure a note of hard of $1,500. Being about to proceed on a voyage, he procured an insu...nce on his vessel to the amount of $2,000, on account of whom it may concern, loss payable to him.”

66

The policy thus obtained was forwarded to the wife of Alexander. The vessel being lost and Alexander dead, his wife, Annie D. Alexanic, was appointed administratrix, commenced a suit on the policy and btained a judgment thereon which the defendants have paid.

The jury have found that the policy was for the benefit of the plainiff and Alexander to the extent of their respective interests. The question is whether upon these facts the plaintiff can maintain a second ait upon this policy.

When a broker or part-owner effects a policy "for the benefit of

See Knight v. Eureka Ins. Co., post.

Sleeper v. Union Insurance Company.

whom it may concern," a suit in case of loss may be maintained upon such policy in the name of the party effecting the policy or in the name or names of those for whose benefit it was made and who are, and are intended to be, insured under the clause "on account of whom it may concern" or some similar form of expression, although they are not named in the policy. You may bring your action," observes BAILEY,. J., in Sargent v. Morris, 3 B. & A. 277, "either in the name of the party by whom the contract was made or of the party for whom the contract was made."

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The administratrix of the party with whom the policy was made had the same right to bring the suit as her intestate. If the party with whom a contract is made can bring an action upon it, his administrator or executor can do the same. No instance can be found where it has not so been held. If the administratrix of Alexander could not do it, it would be the only exceptional case where it could not be done. If Alexander was a mere agent the suit would have been for the benefit of the cestui que trust. The same result would follow if the suit is brought by the administratrix. The court in such case will protect the party interested against the nominal party.

A recovery being had for the whole amount insured, this plaintiff might have recovered of the administratrix to the extent of his insurable interest. Burrows v. Turner, 24 Wend. 276.

It has been seen that an action may be maintained on a policy in the name of the party to whom the same is payable or of the parties "whom it may concern." But one action is maintainable. 2 Phillips on Insurance, §§ 1965, 1972. There is but one party who can maintain an action, either the party to whom the policy is made payable or the person or persons" whom it may concern."

A judgment has been recovered upon the policy in the name of the administratrix. She had possession of the policy and an interest in the same. She was authorized to commence a suit, and the suit so commenced was for the benefit of whom it may concern. A judgment has been recovered by her upon the policy, which has been fully satisfied. A second suit for the same cause of action, or for a portion of the same cause, cannot be maintained. "If there be any one principle of law settled beyond all question," observes BARBOUR, J., in U. S. v. Leffler, 11 Pet. 100, "it is that whenever a cause of action, in the language of the law, transit in rem judicatum, and the judgment thereupon remains in full force unreversed, the original cause of action is merged and gone forever." Unless such is the law, the defendants are without protection by any judgment rendered against them in a suit by the party

Sleeper v. Union Insurance Company.

with whom they contractel. New parties may claim to be included in the clause “whom it may concern," and this judgment be no better or more effectual bar than the one already rendered against them.

This plaintiff, it must be remembered, had no right to revoke the suit by the administratrix, inasmuch as her intestate had an interest in the policy. He might intervene for his own protection, but he could not, even if he had received the amount claimed by him as due, have defeated the action brought by Mrs. Alexander. Copeland v. Mercantile Ins. Co., 6 Pick. 198. The defendants have paid a judgment rendered against them by a party authorized to sue, having possession of the policy and against whose suit they could not have made any legal defense whatever.

WALTON, VIRGIN and LIBBEY, JJ., concurred.

New trial granted.

DICKERSON, J., delivered a dissenting opinion the gist of which may be gathered from the following passage with which he closed : "The error in the opinion of the chief justice consists in the assumption that the administratrix of one of the parties interested in a policy of insurance has the same right to bring an action upon it, that her intestate had in his life-time. This is contrary to the doctrine of the most approved textbooks, and the hitherto unbroken line of authorities, hereinbefore cited. No case is cited to sustain this view of the case, nor is it believed that any one can be found. The case of Burrows v. Turner, 24 Wend. 276, simply decides that where one of the parties originally interested in a policy of insurance collects the whole amount of the loss in his own name, and withholds from the other party his share, he is liable to such party, therefor, in an action for money had and received. In that case both of the parties were living, and the question, whether the representative of a deceased party jointly interested in a policy of insurance with another person or the survivor alone can maintain an action upon it, did not arise and was not considered by the court. I cannot resist the conclusion that the doctrine of the chief justice upon this branch of the case is not sustained by argument, principle or authority; it is petitio prin cipii."

BARROWS, J., concurred in the dissenting opinion.

DANFORTH, J., concurred in its result.

PETERS, J., being interested, did not sit.

The selectmen of a town, in the performance of a duty imposed upon them by statute, employed a person as nurse in a small-pox hospital established by the town, and suffered him to depart without being properly disinfected, whereby plaintiff caught the disease. Held, that the town was not liable. *

A

CTION on the case. The declaration alleged that the small-pox

broke out in Vinalhaven in the fall of 1872; that it became the duty of the town to provide a pest-house and medical attendance, which they performed, employing one Conway to act as nurse; that after Conway had been for three weeks exposed to the disorder he was allowed by the physician to leave the pest-house and return to the dwelling of the plaintiffs' with whom he had before resided; that, relying upon the doctor's skill and the exercise of ordinary care by him and by the selectmen, and believing, therefore, that said Conway was properly disinfected and cleansed, the plaintiffs associated with him; but, in fact, he and his clothing were still infected with the contagion which was communicated to Mrs. Brown, who had the disease so badly as to lose the sight of one eye and to be greatly disfigured. If proof of these facts would sustain the action it was to stand for trial; otherwise, the plaintiffs were to be nonsuit.

G. A. Perrigo & L. M. Staples, for plaintiffs. The selectmen being the municipal officers were ex officio a health committee. R. S., ch. 14, §§ 14, 15. As such they lawfully acted within the scope of their authority for the town, but negligently; they did their duty in a negligent man

ner.

To the general rule that municipal corporations are not liable to a suit except when the right of action is given by statute, the following statute provision is relied upon in answer as an exception: "When an act that may be lawfully done by an agent is done by one authorized to do it, his principal may be regarded as having done it." R. S., ch. 1, § 4.

el. 21.

This clause is cited by the court in Kidder v. Knox, 48 Me. 551, to the point that the selectmen had the right to contract for the town as their agents, and that the town would be liable on its contracts made by them.

* See also Ogg v. Lansing, 14 Am. Rep. 499; S. C., 35 Iowa, 495.

Brown v. Inhabitants of Vinalhaven.

Being liable for the acts of its agents in contract, it is submitted that they are also liable for the same reason for their tortious acts and negli gence in this case under the maxim respondeat superior.

D. N. Mortland & G. M. Hicks, for defendants. If there has been a neglect of a public corporate duty for which no remedy has been provided by statute for the party aggrieved, this suit cannot be maintained. Mitchell v. Rockland, 52 Me. 118.

BARROWS, J. If the action cannot be maintained upon the facts alleged in the writ, the plaintiffs are to be nonsuited, otherwise the case to stand for trial.

The writ sets forth the breaking out of the small-pox in the defendant town, refers to the statute provisions touching the powers and duties of towns and town officers relative to the establishment of hospitals, the regulations to be observed by physicians and nurses and others exposed to infection, and the care to be taken to prevent the spread of malignant and contagious diseases; recites the employment of one Conway as a nurse by the selectmen of the town, his reception into a pest-house by order of the selectmen, and a physician employed by them in behalf of the inhabitants of the town; and alleges in substance that he was carelessly and negli gently thereafterward permitted by them to return, without being properly cleansed and disinfected, to the house which he formerly occupied, of which the female plaintiff was an inmate; and so she contracted the disease to her great jury, suffering and loss, all which matters and things are circumstantially set forth.

The plaintiffs base their claim upon the mistaken idea that the selectmen, in the performance of the duties imposed upon them by the statutes in such cases, sustain to the town by whom they are elected, the relation of a servant to his master or an agent to his principal, and that the rule respondeat superior applies, if they conduct themselves carelessly or unskillfully. It is not pretended that the statute gives a remedy against the town to any one injured by reason of the negligence, ignorance or ineffi ciency of the town officers or those employed by them in these matters. By chapter 14, section 10, the town is required to pay a just compensation to parties interested when the proper officer upon due proceedings had, impresses or takes up any houses, stores, lodging or other necessaries, or impresses any man, under the provisions of the chapter. But beyond this, as to any liability of the town for the doings, misdoings, or omis sions of its officers in the performance of the duties imposed upon them by law, the statute is silent.