Washburn-Crosby Co. v. Home Insurance

Loring, J. No case has been cited by the plaintiff where the interest of a third person in property described in a policy of insurance has been held to be covered by the policy, in the absence of a provision in the policy that it is for the [465] benefit of whom it may concern, or equivalent words. The words “ in trust or on commission ” in policies issued to ware-housemen or commission merchants have been held to be equivalent words. See, for example, Johnson v. Campbell, 120 Mass. 449. The policy in the case at bar in terms provides that it is a policy “ attaching upon the property, interests and legal liability of the Boston and Maine Railroad.” That is the equivalent of a statement that it is not a policy for the benefit of whom it may concern. The plaintiff’s contention is that this direct stipulation as to the character of the policy is overcome by the description of the contents of buildings which are insured by it. The argument put forward by its counsel is that the words “ or held by the insured as common carriers or warehousemen, or under any bill of lading, including all charges, their own, advanced, or due to other lines of railroads or steamboats ” constitute a class of insurance in addition to those described in the two previous classes, to wit, (1) “ merchandise and property of all kinds (excepting furniture and fixtures and telegraphic instruments) belonging to the insured,” and (2) merchandise and property of all kinds (excepting furniture and fixtures and telegraphic instruments) “for which the insured may be legally liable.” That may be conceded. But these words in this policy (which is in terms confined to “ the property, interests and legal liability ” of the insured) are to be construed to cover property (1) not owned by the insured, and (2) property for which the insured is not liable but in which it has an interest, held by it as common carriers or warehousemen, or under any bill of lading. It is further provided that the interest of the insured (the Boston and Maine Railroad) is to include all charges, their own, advanced, or due to other lines or railroads or steamboats. See in this connection Morrill & Whiton Construction Co. v. Boston, 186 Mass. 217. The plaintiff’s counsel asked if this were so why the words “ loss if any payable to said Boston and Maine Railroad ” were inserted. They evidently were inserted ex majore cautela because the policy covered goods not owned by the Boston and Maine Railroad, for the loss of which it was legally liable. [466] We find nothing in the evidence to control the plain meaning of the written contract. The Boston and Maine Railroad did not own the flour here in question, it was not liable for it, and this suit is not brought to recover indemnity for loss suffered by the Boston and'Maine Railroad because it had an insurable interest in the flour. On the contrary it is brought to compel the insured to recover indemnity for the loss suffered by the owner of the flour on the ground that its [the owner’s] interest was insured by it. The entry must be Decree affirmed.