Phoenix Insurance Company v. Hamilton
81 U.S. 504 (1871)

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U.S. Supreme Court

Phoenix Insurance Company v. Hamilton, 81 U.S. 14 Wall. 504 504 (1871)

Phoenix Insurance Company v. Hamilton

81 U.S. (14 Wall.) 504

ERROR TO THE CIRCUIT COURT FOR

THE NORTHERN DISTRICT OF OHIO

Syllabus

1. Insurance may be effected in the name of a nominal partnership where the business is carried on by and for the use of one of the partners, especially when the property insured (grain) is held by the parties insured on commission only, and in the policy is described "as held by them in trust or on commission, or sold and not delivered."

2. In case of an insurance thus effected, where no representations are made with regard to the persons who compose the firm, there is no misrepresentation on that subject which avoids the policy.

3. And where the firm has no actual care or custody of the property insured (grain), but so far as regards its preservation from fire, it is entirely in the control of the other parties, and is so understood to he by the company making the insurance; the omission to inform the insurance company of an agreement of dissolution previously made cannot be considered a concealment which will avoid the policy.

Hamilton and Cook were partners in the grain commission

Page 81 U. S. 505

business, at Toledo, Ohio, and kept their consignments of grain in store in an elevator at that place belonging to the Michigan Southern Railroad Company, whose servants had the entire charge and care of it. Hamilton retired from the firm in July, 1867, but no notice of the dissolution was given, and by common agreement Cook was allowed to carry on the business in the partnership name until the end of the year. During this term, insurance to the amount of $10,000 was effected with the Phoenix Insurance Company of Brooklyn, through their agent, in the name of the firm, Hamilton & Cook, against loss or damage by fire on the "grain in store, their own, or held by them in trust or on commission, or sold and not delivered," this being the usual method of taking insurance among commission merchants in Toledo. Al loss occurred on the 21st of December, whilst the policy was running, and the insurance company declining to pay it, Hamilton & Cook sued them. The defense set up was:

1st. Want of insurable interest in Hamilton, and

2d. Misrepresentation and concealment with regard to the interest.

The plaintiffs, on the trial, waived any claim for grain belonging to themselves individually and asked a verdict but for the value of the grain which was received on commission, asking to recover this amount for the use and benefit of the owners.

At the request of the plaintiffs' counsel, the court charged that if no representations were made with regard to the individuals who composed the firm of Hamilton & Cook, there was no misrepresentation which could avoid the policy; and that if Hamilton & Cook had no actual care or custody of the grain, but that so far as regarded its preservation from fire, it was entirely in the control of the railroad company, and so understood by the company's agent when the policy was effected, the omission to inform the defendant of the agreement of dissolution could not be considered a concealment which would avoid the policy. Verdict and judgment

Page 81 U. S. 506

went accordingly for the plaintiffs, and the case now came here on exceptions to the charge of the court.

Page 81 U. S. 507

MR. JUSTICE BRADLEY delivered the opinion of the Court.

The principal question is whether insurance can be effected in the name of a nominal partnership where the business is carried on by and for the use of one of the partners.

Hamilton was a nominal partner, held out to the world as a member of the firm by his own consent, and affected with every liability of a partner -- to consignors, creditors, and all persons dealing with the concern. The plaintiffs contended that this was a sufficient interest to support the policy -- at least, in a commission business where insurance was effected for the benefit of the real owners of the goods. It is objected that a nominal partner is only held such adversely, for the purpose of subjecting him to liability as a partner and not for the purpose of giving him the benefits and advantages of a partner. But whilst this is generally true, the interest of a nominal partner in the liabilities of the firm is such as should entitle him, in the absence of any attempt to defraud, to join with the other members of the firm in effecting insurance on the property of the concern. As Chief Justice Jones remarked in De Forest v. Fulton Insurance Co., [Footnote 1]

"It does not always require either the legal title or beneficial interest in the property to entitle a party otherwise connected with it to effect a valid insurance upon it. A carrier may insure goods he contracts to convey, yet he has neither the

Page 81 U. S. 508

legal title nor the beneficial interest in them, but he is responsible for their loss."

But the case of a nominal partnership carried on for the benefit of one or more members of the firm seems to be still stronger. For it may be said that the legal interest in the business is in the firm, whilst the beneficial interest is in the member or members for whose use it is carried on. In the case before us, as to all the world except themselves, the legal interest of the business was in the firm of Hamilton & Cook, the beneficial interest in Cook alone. And as it is well settled that a trustee or agent may insure the property held in that capacity for the benefit of all concerned, there seems to be no valid reason why persons constituting a nominal partnership should not be competent to effect insurance as well as transact the other business in the partnership name. In this case, the intimate connection of Hamilton with the business, and the fact that as between him and the consignors of the grain insured, the railroad company with whom it was stored, and all other persons dealing with it, he was actually a partner, and incurred all the responsibility and risk attaching to that relation constituted, in our judgment, a sufficient basis of interest for effecting insurance in the name of the firm. The doctrine, established by a number of cases, that nominal partners are proper plaintiffs as well as proper defendants in actions by and against the firm lends support to this view. [Footnote 2]

The case before us is an especially strong one from the fact that the policy was effected mainly for the benefit of the owners of grain held by Hamilton & Cook on commission. The action was prosecuted solely for their benefit. The plaintiffs, on the trial, expressly waived any claim for grain belonging to themselves individually, and asked a verdict only for the value of the grain which was received on commission, claiming to recover this amount for the use and

Page 81 U. S. 509

benefit of the owners. The liberality with which policies of this character, issued to trustees and agents for the benefit of parties really interested, are sustained by the courts is stated and illustrated in the case of Insurance Company v. Chase, [Footnote 3] decided by this Court in December Term, 1866. As looking in the same direction, we may refer to the cases in New York which decide that a sale by a retiring partner to his co-partners of his interest in the firm is not a breach of the condition that the policy shall be void if the property is conveyed without the consent of the insurance company. [Footnote 4]

The other ground of defense was that there was misrepresentation and concealment as to the interest which vitiated the policy. It is laid down by this Court in Columbian Ins. Co. v. Lawrence [Footnote 5] that an applicant for insurance is bound to fair dealing with the underwriters, and in his representations should omit nothing which it is material for them to know -- nothing which would probably influence the mind of the underwriter in forming or declining the contract. This doctrine is repeated in several subsequent cases, and is undoubtedly the well established law. But its application will depend upon the circumstances of each case. Generally speaking, it is undoubtedly true that any misrepresentation with regard to the ownership of the property insured will suffice to vitiate the policy. But policies are constantly applied for and granted on general stocks of goods held in trust or on consignment for numerous and unknown parties. In such cases, it is not expected, nor would it be possible, that the insurers should be informed as to the ownership. They are content to insure for the benefit of whom it may concern. Of course an omission to disclose the ownership on such cases cannot be regarded as an improper concealment. In some cases it is important to the insurers to know who is interested in the property in order that they may form a judgment as to the probable

Page 81 U. S. 510

care which will be bestowed in its custody and preservation. In other cases, this knowledge may be a matter of little importance. In the case before us, the grain insured was in the sole custody and care of the railroad company, and the insurers were little concerned, as in fact their agent made no inquiry who were the owners or interested therein, and no representation was made on the subject farther than to make the application in the name of Hamilton & Cook and to ask for a general insurance on the grain in the elevator, whether their own or held by them in trust or on commission &c. Under the circumstances of the case, we do not see that anything material for the insurers to know, or that would have had a bearing on taking the risk or fixing the premium, was concealed or withheld. On this subject, the court, at the request of the plaintiffs' counsel, charged the jury that if no representations were made with regard to the individuals who composed the firm of Hamilton & Cook, there was no misrepresentation which could avoid the policy, and that if Hamilton & Cook had no actual care or custody of the grain, but that so far as regards its preservation from fire, it was entirely in the control of the railroad company, and so understood by the defendant's agent when the policy was effected, the omission to notify the defendant of the agreement of dissolution could not be considered a concealment which would avoid the policy. Under the circumstances of the case, we do not think there was any error in this charge.

Judgment affirmed.

Mr. Justice CLIFFORD dissented.

[Footnote 1]

1 Hall 110.

[Footnote 2]

See Parsons on Partnership, 134; Story on Partnership §§ 241, 242; 1 Smith's Leading Cases 1190.

[Footnote 3]

72 U. S. 5 Wall. 509.

[Footnote 4]

See Hoffman v. AEtna Insurance Company, 32 N.Y. 405, and cases there reviewed.

[Footnote 5]

27 U. S. 2 Pet. 49.

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