Hermann v. Louisiana State Insurance

Bullard, J., delivered the opinion of the court. This suit was instituted by the plaintiffs as assignees of a policy of insurance effected by A. Baron, on account of whomit might concern, on the schooner Eliza Thomas, and subscribed by the defendants for four thousand dollars. They allege a total loss by the perils insured against, and a transfer to them of all interest in the policy, with notice to the underwriters, and that the interest and ownership of the schooner, was in Baron and Dufart. The defendants deny generally the allegations in the petition, except the execution of the policy, and specially the interest in the schooner as alleged, or that any proof was ever [504] made of it. The total loss is admitted and adjusted at three thousand nine hundred and twenty dollars. Tírpoíieykof insurance on a itmight°cmwern, takes in a partner m the ownership of the vessel wards transfers speeia^endorsementinhisinditol'the pStiffí loss payments the loss" to them will liberate the underwriters, w^^andwheieras principal material! ” im Previously to the inception of the suit, a writ of fieri facias which issued on a judgment recovered by Kohn &' Bordier, aga¡nst A. Baron, was levied on the rights, credits, moneys, effects, &c. of Baron in the hands of the defendants. Another execution in the case of Delpeuch vs. Dufart, was levied on the same day, in the same manner, and particularly on the amount of the insurance on the schooner. Kohn & Bordier intervened in this suit, and set up their right under the seizure in execution, denying any legal assignment by Baron to Hermann & Son. They pray that the defendants may be ordered to pay in court the amount due on the policy, and finally, that it may be adjudged to them in virtue of the seizure. Antoine Delpeuch, the other seizing creditor, also, intervened, claiming the amount as the property of Dufart, who he alleges was the true and sole owner' of the schooner. He prays that the money may be deposited in court. The case was tried in the District Court, only as between the plaintiffs as transferees of the policy and the insurance office; and the court being of opinion that the whole interest in the policy did not pass by the assignment of Baron, Pr°nounced judgment of non-suit, from which the plaintiffs, and Kohn & Bordier appealed. The record furnishes such evidence of interest and a total [oss as to establish the liability of the defendants as under- ’ , ... of the policy. Whether Baron, with whom they contracted for whom it might concern, had a right to retain the w^°^e amount when received, is a question which concerns him and those who claim a joint interest with him; but that a payment of the whole loss to him, would have liberated the insurers we do not- doubt. They contracted with him, and whether as principal or as agent is quite immaterial. But if , . . . ... , . that were doubtful, the seizing creditors or his partner made themselves parties, and united in the prayer, that the defendants should be condemned to pay the loss, leaving the question still open to be decided by the court, whether Baron [505] or his assignees are entitled to retain the whole amount, or Dufart, his acknowledged partner, to come in for a share. That question is still open, as between the original plaintiffs and the intervening creditors of Dufart, as well as whether the creditors of Baron himself, are bound by his transfer to Hermann & Son, or in other words, whether as to them, that transfer was complete. Where the plaintiffs and intervening parties unite in a prayer that the defendant be condemned to pay the sum demanded, and his liability is established, he will be required to deposit the money in court to the fiaal decision between the claimWe are, therefore, of opinion, that the court erred in pronouncing judgment of non-suit against the plaintiffs. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be reversed ; and proceeding to give such judgment, as in our opinion, ought to have been rendered below: it is further ordered and adjudged, that the . jo? defendants deposit in the District Court, the sum of three thousand nine hundred and twenty dollars, with interest at five per cent, from judicial demand, and that they pay the costs of the District Court, as to the original plaintiffs only, together with the costs of this appeal; and it is further ordered, that the case be remanded to the District Court for further proceedings, as between the intervenors and the plaintiffs, all other costs to abide the final decision of the cause.