Sleeper v. Union Insurance

Appleton, C. J. E. K. Alexander, being the owner of one-fourth of the Abby Brackett, mortgaged the same to the plaintiff to secure a note of hand of fifteen hundred dollars. Being about to proceed on a voyage, he procured an insurance on his vessel to the amount of $2000, “on account of whom it may concern, loss payable to him.” The policy thus obtained was forwarded to the wife of Alexander. The vessel being lost and Alexander dead, his wife, Annie D. Alexander, was appointed administratrix, commenced a suit on the policy and obtained a judgment thereon which the defendants have paid. The jury have found that the policy was for the benefit of the plaintiff and Alexander to the extent of their respective interests. The question is whether upon these facts the plaintiff can maintain a second suit upon this policy. When a broker or part owner effects a policy “for the benefit of 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, [394] 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.”. 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., p. 100, “it is that whenever a cause of action, in the language of the law, transit in rem judicatam, 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 pro [395] tection by any judgment rendered against them in a suit by the party with whom they contracted. 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. New trial granted. Walton, Yirgin and Libbey, JJ., concurred.