#### Van Natta *v.*The Mutual Security Insurance Company.

A person insuring the cargo of a canal boat, generally, may in case of a loss, recover upon proving a special interest in the cargo, as a common carrier.

A party possessing merely a special interest in the subject matter insured, may always recover the value of that special interest, on an insurance of the entire subject matter.

In a declaration upon a policy of insurance on the cargo of a canal boat, it is a *491sufficient’ averment of the plaintiff’s interest to allege that the insurance was for . the account and benefit of the plaintiff as a common carrier.

And it is a sufficient averment of the liability incurred, for the plaintiff to state, in such a declaration, that an amount of goods exceeding that mentioned in the policy was entrusted to him as carrier, and that they were consumed by fire, and that the plaintiff thereby became liable to pay to the respective owners a greater sum than that insured. It is not necessary to aver actual payment by the plaintiff to t.he owners.

In a declaration upon a policy of insurance, a general averment of the plaintiff’s interest in the property insured is sufficient.

(Before Oakley, Ch. X, and Vanderpoel and Sandeord, X X)

March 7;

May 12, 1849.

Demurrer to declaration on a policy of insurance. The declaration contained five counts. The first set forth that on the 21st July, 1847, the defendants executed to the plaintiff, a policy of insurance in the sum of $5000, upon the cargo of the G. B. Webster, on her voyage from New York to Buffalo. That the insurance so made was for the proper account and benefit of the plaintiff as a common carrier for hire, of goods, &c.; that the cargo was shipped, July 22d, 1847, and the vessel *left*New York a day or two after, and that on the 31st *of*July, the boat and cargo were consumed by fire, without any evil practice on the part of the plaintiff, and that the plaintiff, as common carrier, was interested in the cargo to the whole amount, and became liable for the same to the shippers; that due notice was given to the defendants, and due proof of the.loss, and of the plaintiff’s interest, was made to them.

The second count set forth the policy, which provides, among other things, against all losses, excepting, those occasioned by theft, robbery or barratry of the master or crew, or want of ordinary care and skill. Also, that in case of loss, the damage should be estimated according to the true interest and actual value of the property insured, at the time of the loss, and to be paid within 60 days after notice and proof thereof. And that in case of any loss by collision, or by the act of any person, the assurers were to receive all indemnities, that might be recovered therefor, in proportion as they had insured. The assured were not to abandon on account of the boat grounding, or being otherwise detained.

*492The remaining averments were similar to those contained in the first count, except that there was no allegation that the insurance was made for the benefit of the plaintiff as a common carrier. The third count contained similar averments to the other two, except that it contained no allegation of the service .of preliminary proofs of the loss upon the defendants, and it contained an averment that the plaintiff, at the time of the insurance and loss was “ interested” in said cargo. The fourth and fifth counts were the common, money counts.

The defendant demurred to the first three counts, and pleaded the general issue to the other two. The alleged causes of -demurrer to the first count were that the plaintiff averred no interest in himself, or ownership of the cargo ; that the policy insured losses by perils to the cargo, but that the plaintiff alleged .that he was not the owner of the cargo, nor interested therein otherwise than as a carrier, and that there was no allegation that as such carrier, he had paid the value of the cargo, nor was there any allegation of such value. The causes of demurrer to the second count, were that the plaintiff did not set forth with any certainty in what manner, or how, he was interested, or in what his interest consisted; that although he stated he made proof of -interest, he did not allege in whom such proof showed interest, •nor the value of the same, nor whether it was an interest covered by the policy. Similar causes of demurrer were alleged as to the third count.

*E. Sandford,*for the plaintiff.

I. The interest of carriers in goods carried by them, in consequence of their liability to the owners, may be insured under a description of the goods themselves, without specifying the particular interest intended to be insured. (1 Phil. on Ins. 173; *Crowley*v. *Cohen,*3 B. & Ad. 478; *De Forest*v. *Fulton Ins. Co.,*1 Hall Rep. 84, 110, and the cases cited.)

: II. The averment of interest is not necessary in a declaration founded on a policy upon *interest;*and where interest is averred it may be rejected as surplusage. *(Buchanan*v. *Ocean Ins. Co.,*6 Cow. 318, 32 ; *Nautes*v. *Thompson,*2 East, 392; 2 Phil, on Ins. 612, 613, 622; *Succua*v. *Crawford,*5 B. & P. *493308 ; *Goram*v. *Sweeting,*2 Saund. R. 202, 203 ; *Clendining*v. Church, 3 Caines, 141, 144; *Granger*v. *Howard Ins. Co.,*5 Wend. 200; 2 Marsh, on Ins. 682 ; *De Forest*v. *Fulton Fire Ins. Co.,*1 Hall Rep. 84.)

III. The plaintiff, as carrier, had a special property in the goods and an interest in their safety, entitling him to effect a valid insurance thereon in his own name and to recover the whole value thereof, in case of loss. His insurance is upon the goods, though his indemnity is against the consequences of his implied guaranty for their safe carriage. And he is liable to the ex- • tent of the whole value of the goods, in the event of their loss. A common carrier is an insurer against fire. *(De Forest*v. *Fulton Ins. Co.,*1 Hall R. 91, 99, 110, 121; *Crawley*v. *Cohen,*3 B. & Ad. 478 ; *Oliver*v. *Green,*3 Mass. R. 133 ; *Bartlett*v. *Natter,*13 Mass. R. 267; Story on Bailments, *§*507 a.; 2 Kent’s Com. 597, 8.)

1Y. It was not necessary, in order to show a right on the part of the plaintiff to recover under this contract of insurance, to aver that as carrier of the cargo, he had paid to the owner or shipper of such cargo, the value thereof or of any part thereof, There is no such stipulation or condition in the policy, and it is an accountability with which the underwriter has no concern whatever. The test of his liability is the insurable interest of the assured, and he is not interested in the disposition of the proceeds. *(De Forest*v. *Fulton Fire Ins. Co.,*1 Hall, 91, 110, 111, 116 ; *Worth*v. *Wilson,*1 B. & Ald. 59 ; *Lyle*v. *Baker, 5*Bin. 457; Sedg. on Dam. 370; 2 Duer on Ins. 23, 24, § 19; *Port*v. *Jackson,*17 J. R. 239, 245, 6 ; Id. 479, 482, S. C. in error; *Matter of Negus, 7*Wend. 499, 503, 4.)

Y. The value of the cargo is sufficiently alleged. The general allegation of damage is sufficient, in pleading. The declaration shows that there was property at risk, and that a loss of that property occurred from a peril insured against; which it is alleged was more than the amount insured.

*F. B. Cutting,*for the defendants.

I. The policy does not contemplate nor cover -an insurance *494against loss or damage to the cargo, incurred by the plaintiff as a common carrier.

• II. Neither of the counts of the declaration avers any ownership in the plaintiff, of the cargo, or shows that he had any insurable interest therein, except so far as the risks assumed by him as a common carrier are insurable, and these risks are not covered by the policy.

III. If the policy shall be construed to insure the plaintiff against loss to him as a common carrier of the cargo, the decla- . ration does not disclose sufficient to enable the court to say that the plaintiff had become liable to the shippers of the cargo, as a common carrier.

IY. Neither of the counts of the declaration sufficiently alleges or shows the amount or particulars of any liability incurred by the plaintiff as a common carrier, or any proofs of his actual loss furnished to the defendants, sixty days prior to the commencement of this action.

Y. The declaration ought to have set forth the nature of the cargo, so far as to enable the court to see that it was within the terms of the policy; the true and actual value thereof, at the time the loss is alleged to have happened ; the particular interest of the plaintiff in the cargo ; and that proof of the loss sustained by the plaintiff, was made sixty days prior to the commencement of this suit.

By the Court. Sandford, J.

The principal question raised by the demurrer, is whether the plaintiff) who insured the cargo of a canal boat, can recover upon proof of interest as a common carrier. It was decided by the King’s Bench in Crow*ley*v. Cohen, *(3*B. & Ad. 478,) that the interest of a carrier in goods carried by him, was covered by a policy insuring goods in canal navigation boats, without any other description of the particular interest intended to be covered. The insurance was on “ goods *as interest might*appear,” but the case did not turn upon this clause. It was placed on the broad ground, that the subject matter of the insurance is to be properly described, but the nature of the interest need not be specially set out in the *495policy; that being a matter which bears only on the amount of damages.

The principle of this case is adopted by Mr. Phillips, in his Treatise on Insurance, (1 Phill. Ins. 173;) and an analogous principle had been applied in this court, four years previous to *Cronley*v. *Cohen,*to an insurance effected by a commission merchant, on goods in his possession for sale. *(De Forest*v. *The Fulton Fire Insurance Company,*1 Hall’s R. 84.) The very elaborate judgments given in that case, render it unnecessary for us to enlarge upon the reasons for permitting the assured to recover the value of his special interest on an insu- - ranee of the entire subject matter. The chief justice in his illustrations, (p. 110,) puts the precise case before us, of a common carrier, insuring the goods entrusted to him.

The objections made to this doctrine, will be briefly noticed.

1. That the carrier has not a proprietary interest in the cargo. This is equally applicable to a factor who has not made advances, so far as it is founded in law.

2. The policy, it is said, contemplates an abandonment ; whereas the carrier has no interest to abandon ; the only consequence of this is, that there can be no constructive total loss, and it is therefore in favor of the assurer.

3. The policy also contemplates the benefit of salvage and of substitution, neither of which can be had in respect of the interest of a carrier. As to the salvage, it is evident, that where the recovery can only be for actual loss, the assurer will have the full benefit of all salvage, in the diminished amount of such loss. And as to the substitution, none arises in consequence of the very restricted extent of the risks assumed. This leads us to speak in connection, of the fourth and fifth objections, which are, that many of the risks insured against are inapplicable to the interest of carriers, such as the perils of the river and canal navigation ; and that the risks excepted, are the identical risks for which the carrier is liable to the owner, such as theft, robbery, barratry, undue lading, and want of ordinary care and skill in the navigation.

Both of these positions showhow exceedingly restricted was the liability which the assurers assumed in favor of the carrier. In*496deed, their counsel stated that the only risk they incurred, was that of fire. All these stipulations form a part of the policy; but we are to bear in mind that a single printed form of the policy, is in practice, applied to all cases falling within one class, as for example, to all insurances on cargo ; and the uniform course is to construe them liberally, in respect of the actual interest and subject matter insured. If it were shown that the omission to describe the true interest of the applicant, led to the assumption of risks beyond those incurred by a simple description of the subject matter; it might possibly furnish a good defence, as being a misrepresentation or concealment. But there is hardly a conceivable case, in which an insurance of the particular, special, or qualified interest in goods, will subject the assurer to a greater hazard, than he would incur, by insuring the same goods for the absolute owner. There is no possible ground for believing that a greater risk was incurred in the instance before us ; and we have no doubt that the plaintiff’s loss was covered by the policy.

The averment of the plaintiff’s interest is sufficient. In the second count, it is more specific than was requisite by the common law rules of pleading.

The liability incurred, is also sufficiently set forth. A loss by. fire through misfortune, falls upon the carrier. *(Gould*v. Hill, 2 Hill, 623.) The counts state that an amount of goods exceeding that mentioned in the policy, was entrusted to the plaintiff as carrier, and was consumed by fire, and that he thereby became liable to pay to the respective owners, a greater sum than that insured. It was not necessary to aver actual payment by the plaintiff to the owners. And we think, considering the dates and circumstances, the averment made suffices for the actual value of the goods when destroyed; if indeed, any averment beyond the carrier’s liability to pay five thousand dollars for them, was necessary.

The presenting the preliminary proofs is stated in the two first counts. The proofs were those adapted to the interest of the assured. The third count is defective in omitting the allegation as to the preliminary proofs.

It was also objected to the third count, that it contained no *497averment of interest. In fact, it contains the usual general averment of interest, instead of the statement of the particular interest disclosed in the other counts. In this respect, the count is good. Whether it can be supported by evidence of the special interest as common carrier, we need not determine. (See *Granger*v. *Howard Insurance*Company, 5 Wend. 202.)

The plaintiff is entitled to judgment on the demurrers to the first two counts, and the defendants are entitled to judgment on the demurrer to the third count of the declaration. The defendants may plead to the two former, and the plaintiff may amend the latter,"within twenty days; without costs to either party.