Tennessee Marine & Fire Ins. Co. v. Scott

• Decision Date: 31 March 1851
• Citation: 14 Mo. 46
• Parties: TENNESSEE MARINE AND FIRE INSURANCE COMPANY v. SCOTT & MUDGE.
• Court: Missouri Supreme Court

14 Mo. 46

TENNESSEE MARINE AND FIRE INSURANCE COMPANY

v.SCOTT & MUDGE.

Supreme Court of Missouri.

March Term, 1851.

APPEAL FROM ST. LOUIS CIRCUIT COURT.

GAMBLE & BATES, for Appellant. 1. By changing masters, the assured changed the risks insured against, and so the underwriters were discharged. It was a deviation. Phillips on Ins. 483, 484, 485. 2. It is impossible to say whether the change of masters occasioned or contributed to the loss, but that it is so in almost every case of deviation. It is the change of the risk; and not the consequence of the change which constitutes the deviation, and discharges the underwriter from liability for a subsequent loss. See Settle & Bacon v. Perpetual Ins. Co., 7 Mo. R. 379; Walsh v. Homer, 10 Mo R. 6, particularly 14 and 15. 3. The change of masters was as much a change of the risk assumed by the underwriter, as a change of goods insured, from one vessel to another is. See Phillips on Ins. 485 and cases there cited.

SPALDING & SHEPLEY, for Appellees.

1. The license to change the master, given by the agent, exhausted the power; and to make a second change, required no new assent on behalf of the defendant. 4 Law Lib. (Com. on Landlord and Tenant, 241) 136-7. In a lease where there is covenant not to alienate without license of landlord, that license once given, discharges the covenant. 14 Vesey, 173, Brunell v. McPherson; 3 Wilson, 33; 1 Marsh. 359; 5 Taunt. 795; 41 Law Lib. (1 Smith's Leading Cases, 15) Dumpore's case at p. 66. 2 Watts & Serg. 534--where party once dispenses with condition, it is gone. 13 Wend. 534; 17 Wend. 447--at the same time the master was changed, the owners were changed also.

II. According to the policy, it did not expire by the bare act of changing the master or owner, but only by the act of the defendant. The insured had a right to put upon the boat such person as they pleased, as master, and did not vacate the policy. No penalty is inserted in the policy, for changing the master, and failing to give notice thereof to the insurers.

III. The policy is to be construed favorably for the insured. Hughes on Ins. 144, 145; Park's Ins., 30; 1 Duer's Ins., 161.; 1 Burr, 341.

IV. There was not a change of masters such as was contemplated by the restrictive change in the policy. The regular master was sick and another competent person, through necessity, took his place temporarily. The instruction given for the plaintiff assumes properly, that there had been a change of masters assented to by the defendant. This the defendant did not dispute on trial; but the agent, who was eamined as a witness, stated that he understood, a Mr. Scott was to be master; whereas, another person acted as master on that trip. He stated that he had notice of change of masters then. There had been at the same time, a change of master and owners, with the consent of defendant, and this exhausted the provision. That clause only required the insured, that is, Ealer, when he sold the boat or changed the master, to give the notice; but it did not require the assigns so to do. In other clauses of the policy, the word “assigns” is used, showing that the parties could extend its provisions to assigns when they pleased.

NAPTON, J.

The only question in this case arises out of the following clause in the policy of insurance sued on: “It is also agreed, that should the insured change masters or owners, notice shall be given by him to the insurers without delay, when the insurers may end the adventure, if they so elect, by returning a pro rata premium.” This policy was upon the steamer Oregon, and was for the benefit of H. A. Ealer, who at the date of its execution was the owner and master of said boat. The boat was sold and the policy transferred to the plaintiffs, Scott & Mudge, with the understanding that Scott would take charge of her as master. Of this change of owners and master, the insurance company was apprised and their agent made no objection to...