Farmers Mut. Insurance v. New Holland Turnpike Co.

Opinion, Mr. Justice Gbeen: We cannot understand upon what principle evidence was admitted to prove loss of tolls on the turnpike road of the plaintiff. The contract in suit was a policy of fire insurance on a bridge. The bridge having been destroyed by fire, if there was liability on the part of the insurance company, the measure of that liability would be the value of the loss, which would consist of the injury to the bridge. If the bridge was totally destroyed, the loss would be the total amount of the insurance, [44] but if only partially destroyed, it would be tbe value of tbe injury. In no circumstances can there be a legitimate measure of liability on a fire insurance policy which represents the loss of profits of a business which might be carried on at the structure destroyed, if it were standing. Such is not the contract of tbe parties. Neither is there any liability as for rent of the premises destroyed or for any other advantage which may have been derived from its use. If a period of time elapses before the building is restored, or if it is never restored, the liability of the insurer is not for a loss of the use or rental of the building, but for the value of the loss with interest on the same until payment is made. These fundamental principles which are inherent in the contract of insurance were disregarded when the plaintiff was permitted to prove the loss of tolls for non-user of the bridge while it was being rebuilt. For this reason we sustain the fourth assignment of error. We think it was also error to permit the county of Lancaster to interplead as a claimant. There was no contract of insurance with the county, and after intervening there could be no recovery, as for any loss sustained by the county. There was no identity of interest in the bridge as between the turnpike company and the county. If the turnpike company had any interest in it, it was that interest which was represented by the amount of its contribution to the cost of the bridge, but in that contribution the county necessarily could have no interest. The whole of it belonged to the turnpike company, and no part of it, in any contingency, belonged to the county. The principle recognized in Miltenberger v. Beacom, 9 Pa. 198, has no application. We therefore sustain the tenth assignment of error. The more important question, however, is, whether the turnpike company had any insurable interest in the bridge. It is a novel question, but perhaps not difficult of solution. The basis, upon which the insurable interest is claimed to exist, is the fact that the turnpike company contributed $5,500 to the cost of erecting the bridge, being one third its total cost, $16,500. If this contribution was compulsory — that is, legally compulsory — it would perhaps have to be admitted that an interest in the bridge, legal or equitable, would necessarily flow from it. For it cannot be supposed that the law would oblige [45] any person or corporation to contribute directly to the cost of erecting a structure, without conferring an interest in the structure which the law would recognize and enforce. While saying this, we do not of course refer to that kind of contribution which is accomplished by the payment of taxes. Such contribution is, of course, for public use, and confers no title or interest upon the tax payer in structures which may Ik; erected with public funds. But in this case there is no pretence of any compulsion upon the turnpike company. The evidence as to the payment of the money is barren of information, except as to the mere fact of the payment. There is absolutely no testimony to prove why or upon what consideration, or for what purpose or reason, the turnpike company paid any part of the cost of erecting the bridge. It is not difficult to imagine a reason, since, as the company’s road crossed the stream over which the bridge was erected, it would be cpiite desirable for them to have a bridge over which persons using the road could travel. But while that might be a reason for the company building a bridge of its own, it was still the fact that the bridge was a public county bridge, free to all travel, built many years before by a private person who transferred it to the county, and hence the property of the county exclusively. Being thus a free, public bridge, there could not possibly be any private estate or ownership in it. The turnpike company could charge no tolls for passing over it. They could exercise no acts of ownership over it. They could not obstruct it nor take it down, even if to rebuild it, without the consent of the county, and perhaps not even with such consent, as it was a part of the public highway. In point of fact, while the turnpike company did contribute the third part" of the cost of its erection, after the former bridge had fallen down, the county at that time paid the other two thirds of the cost, and re-erected the bridge in discharge of its undoubted legal obligation to do so. And so, after its destruction by fire in 1882, it was again rebuilt by the county as a public county bridge in obedience to a general law of this commonwealth, act of May 5, 1876, P. L. 112, and the decree of this court: Myers v. Commonwealth, 110 Pa. 217. All this was done without any cost to this plaintiff, who now enjoys the use of the bridge in the same manner and to the [46] same extent as before the fire. The only injury the plaintiff has sustained by the fire, is in being deprived of the use of the bridge, not as its own, but as a part of the public highway, during the period of the reconstruction of the bridge. But, for that injury the defendant was not responsible in any sense, and it never assumed an obligation to make compensation for it. The county was legally charged with the duty of rebuilding, and however an argument might be made against the county for not performing its duty in that regard with promptness, it is perfectly manifest that the breach of that duty by the county conferred no right of action against the defendant insurance company. What then remains to impose any liability upon the defendant ? The bridge is restored without any expense to the plaintiff. Every right which the plaintiff enjoyed before the fire is enjoyed since, so far as the bridge is concerned, without any additional cost to the plaintiff. It may/ be remarked in passing that the right of the plaintiff in the/ bridge is only the public and. common right of its patrons as/ citizens, to use the bridge as a part of the public highway. Iu is therefore not a right peculiar to the plaintiff in any sense. It may well be questioned, even if the plaintiff had an insurable interest in the bridge, whether any injury has been sustained to that interest, siifficient to impose any liability upon the defendant as an insurer. Suppose a recovery is permitted, and the plaintiff recovers the amount of the insurance money. As they are not obliged to expend the money in reconstruction, and yet reconstruction has been accomplished without cost to them, they simply get back and keep the money they voluntarily contributed in 1868 to the construction of the bridge. But if the bridge had not burned down, that money could not have been recovered. How- then were they injured by the fire ? They have the bridge as they had it before, without cost to them, and the diminution of their tolls during the period of reconstruction cannot be compensated in an action on the policy. For this reason, therefore, if- for no other, we cannot discover any cause of action against this defendant. But independently of this consideration, all the definitions of an insurable interest import an interest in the property insured which can be enforced at law or in equity. Thus, we said in Miltenberger v. Beacom, 9 Pa. 199: “ It is accordingly recog [47] nized as a rule in this department of the law that almost any qualified property in the thing insured, or any reasonable expectation of profit or advantage to spring from it, may be the subject of this species of contract, provided it be founded in some legal or equitable title.” In Wood on Fire Insurance, 625-6, it is said; “A right, too, must be of such a nature in order to constitute an interest, as the law will recognize and enforce, for a mere moral title will not sustain an insurance.” Flanders on Insurance, 388: “A mere general interest, not susceptible of enforcement, which does not specifically apply either in terms or by the operation of law is not insurable.” 1 Wood on-Fire Insurance, 656: “ The interest must be enforceable either at law or in equity.” Wilson v. Insurance Co., 19 Pa. 374: “Interest in the property insured is an essential link in the relation of insurance.” Sweeny v. Insurance Co., 20 Pa. 342: “The rule is valuable and well founded that he who has no interest can have no insurance. That he must show his interest and that it is the extreme measure of his recovery, are the corollaries of the rule: ” Imperial Fire Insurance Co. v. Murray, 73 Pa. 28: “ Hence the court was correct in charging that the insurable interest of the lessees was to the extent of the value of the property which they were bound to replace.” See, also, Grevemeyer v. Insurance Co., 62 Pa. 340. It is unnecessary to multiply citations. There was clearly no interest in the bridge belonging to the turnpike company, which could be recognized or enforced either at law or in equity. There could not be any right of property of any kind, nor of possession, nor of custody. Even the use of it was not a use by the plaintiff in its corporate capacity, but a mere right of passage over it which belonged to all citizens in common. The money which was contributed to its construction by the plaintiff, was a mere gratuity, which it was not bound to gi ve and which it could never recover. In such circumstances there was no interest or property in the bridge as a structure and hence no insurable interest capable of protection and enforcement. We sustain the first, second, and third assignments. Judgment reversed.