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they may have been harmful, and probably were harmful, to the defendant. We will not comment upon them, as they may not, and probably will not, appear upon another trial.
On account of the error above pointed out, while the general term should have reversed the judgment below, it should also have granted a new trial.
Our conclusion, therefore, is that the order of the general term should be so modified as simply to reverse the judgment of conviction and to grant a new trial.
EXTORTION DEFINED: See the extended note to Commonwealth v. Mitchell, 96 Am. Dec. 193.
CRIMINAL LAW- What CONSTITUTES AN ATTEMPT TO COMMIT CRIME. Where the criminal result of an attempt is not accomplished, simply because of an obstruction in the way of the thing to be operated upon, which is unknown to the aggressor at the time, the criminal attempt is committed: People v. Lee Kong, 95 Cal. 666; 29 Am. St. Rep. 165. An attempt to como mit crime is the direct movement toward its commission after preparations for the same have been made: State v. Lung, 21 Nev. 209; 37 Am. St. Rep. 505. This question is fully discussed in the extended note to People V. Moran, 20 Am. St. Rep. 741
CRIMINAL LAW.-DEFENDANT AS WITNESS AGAINST HIMSELF: See the note to People v. Mullings, 17 Am. St. Rep. 230, and the extended notes to State v. Duncan, 38 Am. St. Rep. 895: State v, White; 27 Am. Rep. 140, and Commonwealth v. Nichols, 19 Am. Rep. 348.
GERMANIA FIRE Ins. Co. v. HOME Ins. Co.
[144 NEW YORK, 195.) INSURANCE, FORFEITURE FOR CHANGE OF INTEREST.-The taking of a part
ner by the assured and the transfer to him of an interest in the prop. erty avoids a policy if it contains a provision that if the property is sold, or transferred, or any change takes place in title or possession, the policy shall be void, though the policy also stipulates that the insurer will make good to the assured, his heirs, executors, administrators, and assigps all such immediate loss as shall result from the destruction of the premises from the perils insured against. G. W. Cotterill, for the appellant. George Richards, for the respondent.
197 BARTLETT, J. This is an appeal from the judgment of the superior court of the city of New York affirming a judgment dismissing the complaint after trial on an agreed written statement of facts.
The material facts are as follows, viz: The defendant inBured Verdier on his stock of hardware, and, during the life of the policy, Verdier took in a copartner, Brown, transferring to him a three-tenths interest in the insured property; shortly after this transfer the fire occurred.
The policy contained this provision, viz: "Or if the property be sold or transferred, or any change takes place in title or possession, .... this policy shall be void.”
The question presented by this appeal is whether the fact of the insured having taken in a partner rendered the policy void.
It was stated on the argument that this precise point had never been presented to this court, but it is insisted that the 198 trend of some of our decisions is in favor of plaintiff's contention that the policy is not avoided by taking in a new partner.
The first case is Hoffman v. Ætna Fire Ins. Co., 32 N. Y. 405; 88 Am. Dec. 337. It was there held that the effect of the usual proviso against sales in policies of insurance is not to interdict sales by the owners as between themselves; that the design of the provision was to prevent sales to parties not insured.
The second case is Walton v. Agricultural Ins. Co., 116 N. Y. 326. This was a case in the second division. The policy contained the clause against transfer.
While the policy was in force, Walton, through a third person, conveyed the insured property to his wife, and subsequently the fire occurred.
The plaintiff sought to relieve themselves from the effect of this transfer by showing that Walton informed the de fendant's solicitor of his intention to convey to his wife after a few months, and requested that the policy be so drawn as to cover his interest before conveyance and that of his wife afterward, and that the solicitor informed him that the result could be accomplished by naming him and his wife as the parties insured.
The trial court admitted the evidence, and this court reversed the judgment on the ground that it was error to admit parol evidence to vary or contradict one of the provisions of the policy.
While the decision of this case went off on a question of evidence, it is clear that the wife of Walton had no insurable interest at the time the policy was issued, and that the subsequent transfer to her was not a transaction between the insured, but was a sale by the insured to a stranger to the policy. As the case was properly disposed of on the question of evidence the court did not pass on this point.
The third case is Walradt v. Phoenix Ins. Co., 136 N. Y. 375, 32 Am. St. Rep. 752, where it was decided that the issuing of an execution, and a levy thereunder, did not work a change of title or interest within the meaning of the policy.
199 None of these cases deals with the question now under consideration.
We think it perfectly clear on principle that the sale of an interest in the insured property by Verdier to Brown and the formation of a copartnership between the two rendered the policy void.
The contractof insurance is peculiarly personal in its nature, and the success of the business of underwriting depends largely upon what is known as the moral hazard.
It is a well-established principle of the common law that every man has the right to determine with whom he will enter into contract obligations.
An insurance company is induced to issue or withhold its policy after carefully scrutinizing the character of the applicant for insurance.
It is of the utmost importance to the company to ascertain who is to be vested with the title and possession of the property sought to be insured.
It would be a harsh and indefensible rule that required the underwriter, who had insured an individual on a stock of goods in a store, to continue the insurance after the insured had taken in two partners, and formed a firm wherein each partner was vested with an undivided third interest in the property covered by the policy, without having been afforded the opportunity to examine into the moral and business characters of two strangers to the original contract.
This right of the insurance company was in nowise invaded when this court held that a sale by one partner to another of his interest, where both were insured, did not avoid the policy.
It is only when a stranger is to be brought into contractual relations with the insurance company that the consent of the latter is essential.
This right of the company has been upheld in other jurisdictions: Drennen v. London Assur. Corp., 20 Fed. Rep. 657; Card v. Phæniz Ins. Co., 4 Mo. App. 424; Malley V. Atlantic Fire and Marine Ins. Co., 51 Conn, 222, 250, 251.
200 The appellant urges that the protection of the policy should be extended to the new partner by virtue of the following words contained therein, viz: “And the said Home Insurance Company hereby agree to make good unto the said assured, his executors, administrators, and assigns, all such immediate loss," etc. It is argued that the word "assigns" extends the insurance to the new partner's interest.
The policy is capable of no such construction; the clause in question is merely a covenant on the part of the company with the insured to pay to him or bis legal representatives or assigns the amount of the loss that may become due to him under the terms of the policy.
The judgment and order appealed from should be affirmed, with costs.
INSURANCE-CONDITION AGAINST CHANGE OF INTEREST.-A condition in a policy of insurance against the sale or transfer of tho property insured is not broken by the sale of part of the interest of the assured therein, as where he takes a partner, and the property insured becomes vested in the partnership: Blackwell v. Insurance Co., 48 Ohio St. 533; 29 Am. St. Rep. 574, and note, with the cases collected.
LONDON AND LANCASHIRE FIRE Ins. Co. v. Rome, WATERTOWN, AND OGDENSBURG R. R. Co.
(144 NEW YORK, 200.) CARRIERS-WHEN BEOOME LIABLE AS SUCH. — Though a shipper has agreed
to load his property in the cars, and has not yet done so, the carrier is liable for its loss if it has been placed in his freight-house for the pure pose of shipment, with the consent and under the direction of his freight agent, and it is ready for immediate transportation, and the
cause of delay is the failure of the carrier to furnish the requisite cars. CARRIERS. THE LIABILITY OF A CARRIER AS SUCH IS NOT PREVENTED
FROM ATTACHING by the fact that is not ready to perform its duty and retains the property in its possession because not then able to provide the means of transportation.
D. G. Griffin, for the appellant.
204 Earl, J. This action is brought to recover damages against the defendant for the destruction by fire of a large quantity of hay, alleged to have been delivered to it as a common carrier for traneportation.
It is admitted that if, at the time of the destruction of the hay, it was in the possession of the defendant as a common carrier, it is liable in this action; and the sole question for our determination is whether the hay had been so delivered to the defendant and placed in its custody as to make it liable as a common carrier. The plaintiff sues as assignee of the shippers and stands in their place.
The hay, at the time of its destruction, was in the defendant's 205 freight-house at Cape Vincent, and had been placed there by the plaintiff's assignors with the consent and under the direction of the defendant's freight agent at that place. It was delivered in bales, and it was the usage and the regulation of the defendant, known and assented to by the shippers, that they were to load it into the defendant's cars. The claim of the defendant is that its responsibility as a common carrier had not attached to it at the time of the fire, for the sole reason that the duty of loading the hay into its cars rested upon the shippers, and that its duty as a common carrier could not attach until the hay was thus loaded.
There is no doubt that it is the duty, generally, of a rail. road company to load the freight delivered to it for trangportation into its cars, and that it cannot generally devolve this duty by any regulation upon the shipper; and that it cannot legally, as a condition of transportation generally, exact from the shipper a contract to place the freight into its
But we know from our own observation that as to hay, lumber, sawlogs, live animals, and other bulky freight, the shipper usually loads the freight into the cars. We need not, however, now decide whether a railroad company can, as to such bulky freight, make a regulation that the shipper shall load it, because here the shippers acquiesced in the regulation and undertook the duty of loading. But we do not think that the fact that the shipper undertakes to load the freight into the cars necessarily postpones the time when the railroad company takes on the character of a common carrier. The rule as to the responsibility of the carrier is
AX. ST. REP., VOL. XLIII. -48