Turner v. Stetts, Allen & Gill

GOLDTHWAITE, C. J. The evidence disclosed by the record shows, that Turner, against whom the action was brought, had effected a fire insuranee.on a building of his own, and also on certain stock and materials belonging to Stetts, Allen & Gill, who were the plaintiffs below; that the insurance on all was taken by Turner in his own name, and in the same policy, — itnot being known to the insurers that any other person than himself owned or was interested in the stock, &c.; and that the policy contained a condition, to the effect that it would not cover “ property held in trust,” or on commission, unless insured as such. These words of the condition, as to trust property, are not to be construed in a strict or narrow sense (1 Phil. on Ins. 3 ed. 267), and must, therefore, be held to include everything in which the assured ha¿ possession, and a qualified interest,— the ownership being in a third person; and with this clause in the policy, it is evident that the insurers would not be legally responsible, for any loss upon the materials and stock owned by the appellees, if not insured as trust property. As the present action is for money received by Turner, to the use of the plaintiffs below, and if neither he nor the plaintiffs could have recovered of the insurers, and the money was not received by him, either in whole or in part, on that account, then it is clear that such money would not be received to the use of the plaintiffs, and they could hot recover in this suit. The first charge was in conflict with these views, as it as [424] serted tbe right of the plaintiffs to recover, without reference to the legal liability of the insurance company, or whether the money received by the defendant was on account of it. The jury were instructed, in effect, that they must find for the plaintiffs, although the amount insured on their materials could not be recovered of the company, and was not paid, to, or received by the defendant, on account of the loss. What W9 have said must, of course, be understood as confined to-the present action. Had the defendant been sued for failing to cover the risk by his policy, a different question would have been presented. Judgment reversed, and cause remanded. Kick, J., having been of counsel in this case, did not sit.