Gales v. Hailman

[520] The opinion of this court was delivered by Gibson, C. J. Each party to these two writs has assigned an error: the plaintiff, that he was not allowed to recover the entire value of the goods for himself and the insurer; and the defendants, that they were compelled to contribute rateably for the payment made in discharge of the policy. In such a case, the peril having been within both the contract of bailment and the contract of insurance, the mind is at first impelled towards the conclusion reached by the judge below, that the carrier and underwriter are bound to contribute on the principle of double insurance. But a carrier is not an insurer, though he is sometimes inadvertently called so. In respect to the extent of his responsibility, not the nature of it, he is said to be effectually such; for the law raises a conclusive presumption of misconduct against him in relation to every loss, not caused by either of the perils excepted by implication from the terms of his contract. But his is not a contract of indemnity, independent of the care and custody of the goods. It is a contract of transportation and safe delivery, in consideration of a premium, not merely for a risk incurred, but for labour expended. Unlike an underwriter, a carrier is not entitled, by the conditions of his contract, to have notice given him of a loss; or to be furnished with preliminary proofs of it; or to receive a cession of the fragments of the property; or to have the loss adjusted on principles peculiar to the contract of insurance. These and other discrepancies show that he is not in any sense an insurer. Still it would be just to put him on a footing with the insurer, if their innocence or their demerits were equal and mutual; but it necessarily so happens that when a carrier is liable for a loss at j ail, it is on the ground of actual or presumptive negligence. Even 'if innocent in fact, he has consented, by the terms of his contract, to be dealt with as if he were not so; and hence it is, that his case has a less meritorious claim to indulgence than that of an insurer, who may have entered into his contract of indemnity on the credit of his particular vigilance. In salt-water policies, the name of the master is matter of substance; and there is the same reason to presume that a carrier’s reasonable skill in the navigation of the particular river, enters into the calculation of a fresh-water risk. To allow the carrier, therefore, to call on the insurer for contribution, \WOuld allow him to share his misfortune with his neighbour, whom he has deceived, though brought about by his own misconduct. As the author of the loss, therefore, the carrier is the party to bear it; and as the insurer, who in this case bore a part of it for [521] him, has a right to be reimbursed, there must be a remedy of some sort to enforce it. The shipper has sued on the contract of bailment, not only in his own right for the unpaid balance due to himself, but as a trustee for what has been paid by the insurer in ease, of the carrier; and the supposed difficulty is to see how a legal' and an equitable demand can be joined in the same action. But the title of the plaintiff is altogether legal; and his right of action is the same as that of an obligee who sues for a debt in part, equitably assigned. The real difficulty is in the supposed inability of the court to restrain the carrier from setting up the insurer’s payment of his part of the loss as satisfaction of so much of the demand at law. That the insurer may sue in the name of the shipper for reimbursement, where he has paid the entire loss, is shown by Harford v. Maynard, Marsh. Ins. 161; Mason v. Lainesbury, 3 Doug. 61; The London Assurance Co. v. Lainesbury, Ib. 245, and Clark v. The Inhabitants of Blything, 3 Dowl. & Ryl. 489 ,* and in these the plaintiff must have met and surmounted the same difficulty. In Mason v. Lainesbury, Lord Mansfield said: “ Every day the insurers are put in the place of the insured. In every abandonment it is so.” But what would be the value of the insurer’s action in the name of the shipper, if the court could not prevent his own payment from being pleaded against him? It would see that the shipper did not receive double satisfaction; but it would allow the carrier to use the defence no further. What remedy could the insurer have, if he could not have an action in the name of the shipper ? There is a dictum of Lord Kenyon, in Bird v. Thompson, 1 Esp. R. 336, that an underwriter liable for a loss by the barratry of the master, may have an action ex delicto against him; but he acknowledged that he knew of no precedent for it. Still, what action could the insurer have in his own name, where, as here, there could not be two actions on the contract of bailment ? It has been suggested that he might have indebitatus assumpsit for money paid to the carrier’s use. It would be no kindness to subject the carrier to separate actions for the same duty. Hor would the interest of the insurer be jeoparded by allowing the shipper to recover for him. The money might be stopped in court, or the carrier might call on the attorney to file his warrant. But the decisive objection to an action for money paid is, that there is neither privity nor precedent request on the part of the carrier to sustain it. Unlike joint obligors in a bond, the parties were bound by different contracts and for the performance of different duties. As regards the carrier, the insurer’s payment was volun [522] tary; and though it was payment on compulsion as regards the shipper, it was compulsion induced, not by the liability of the carrier, but by the insurer’s own'liability on his own contract; and in this respect, his payment of the loss was unlike a stranger’s payment of rent to release his chattels from distress ; which has been substituted as an equivalent for the tenant’s request. There the tenant was exclusively bound by his covenant} here both parties were bound by different contracts, each for himself, from the beginning. The insurer paid in discharge, not of the carrier’s duty, but of his own; and by compulsion, not of law, but of a personal contract into which he had entered, not at the carrier’s instance. It would, therefore, require us to do more violence to the principles of the action of indebitatus assumpsit, to sustain it against the carrier, than to sustain an action on the contract of bailment in the name of the shipper, for the insurer’s use. Nothing would be necessary but to restrain the carrier from setting up the insurer’s payment of the loss, as pro tanto extinguishment of his own liability ; and though the common law will not protect the interest of a cestui que trust through the vicissitudes of a trial, we have seen that the common-law courts have taken care of the insurer’s interest in England, probably because an action of assumpsit, letting, as it does, the parties into an examination of the consideration and nature of the contract, has, in some measure, the qualities of a bill in equity. In this state, where chancery principles are strained through legal forms, there is neither real nor apparent difficulty in modulating the carrier’s defence. In this case, the insurer and the shipper could not sever; and the action was well brought, respectively for the use of each, in the name of him who had the legal title. Judgment reversed, and. judgment for the plaintiff for the amount of the whole loss.