Embler v. Hartford Steam Boiler Inspection & Ins. Co.

• Decision Date: 21 March 1899
• Court: New York Court of Appeals Court of Appeals
• Parties: EMBLER v. HARTFORD STEAM BOILER INSPECTION & INSURANCE CO. et al.

158 N.Y. 431

53 N.E. 212

EMBLER

v.HARTFORD STEAM BOILER INSPECTION & INSURANCE CO. et al.

Court of Appeals of New York.

March 21, 1899.

Appeal from supreme court, appellate division, Third department.

Action by Albert S. Embler against the Hartford Steam Boiler Inspection & Insurance Company and another. A judgment for defendants was affirmed by the appellate division (40 N. Y. Supp. 450), and plaintiff appeals. Affirmed.

E. W. Douglas, for appellant.

Lewis E. Griffith, for respondents.

GRAY, J.

The policy of insurance which was the subject of this action was issued to the Ticonderoga Pulp & Paper Company in October, 1891; and it indemnified and insured, among other things, against loss or damage to property of every kind resulting from an explosion or rupture of steam boilers; ‘also against loss of human life or injury to person, whether to the assured, to employés, or to any other person or persons, caused by such explosion or rupture, payable to the assured for the benefit of the injured person or persons, or their legal representatives in case of death, and not contingent upon the legal liability of the assured.’ The sum of insurance stated in the policy was $50,000, and the amount of any recovery under the clause quoted was limited to the sum of $5,000. In December, 1892, Provencha, who was employed by the pulp company in the capacity of fireman, was injured as the result of an explosion of one of the boilers, and subsequently died from his injuries. His widow, as his administratrix, brought an action against the pulp company, to recover damages by reason of its alleged negligence in causing the death of her intestate; and, prior to the trial of the issues therein raised, the case was settled by the payment of the sum of $1,500. Subsequently, Provencha's administratrix assigned to the plaintiff in this action all her rights and interests in and to the policy of insurance in question; whereupon this action was brought, in which the plaintiff seeks to enforce the contract of insurance to the extent of the $5,000, provided for in the clause above mentioned.

It is contended on the part of the plaintiff in the action that this policy provides for two kinds of insurance,-one of indemnity to the pulp company, against loss or damage to property; and one against loss of human life, or injury to persons, and that the promise of the insurer in the latter respect, under the special clause which I have mentioned, was made absolutely for the benefit of Provencha, or his legal representatives in case of death, and not merely to indemnify the pulp company for any loss which it might sustain from, or by reason of, such death. It is argued that the manifest intent of the contract was to compensate to a limited extent those sustaining a loss from death regardless of any relations existing between the assured and the person killed and regardless of any interest which the assured might have in the person killed.

The policy of insurance was issued prior to the passage of the act of 1892 (Laws 1892, c. 690, § 55), which expressly authorizes an employer to take out accident insurance covering his employés collectively, for the benefit of such as may be injured, and therefore is not affected by that law. The action must stand or fall upon the determination of the question whether the contract of insurance gave any rights to Provencha or to his legal representatives to enforce it against the insurer for his or their benefit. Certainly, Provencha was not a party to the contract of insurance, and it does not appeal from the record, even, that he was an employé of the pulp company at the time the contract was made. The stipulated fact is-and it is all the evidence that we have on the subject-that Provencha, on and prior to the day when the accident occurred, was in the employment of the company. In the face of such a stipulation, it is to be inferred, if not presumed, that Provencha was not an employé when the policy was issued. But perhaps that fact alone may not have a decisive bearing upon the question, if the theory of the plaintiff...