Eddy v. Tennessee Marine & Fire Insurance

21 Mo. 587

Opinion

Ryland, Judge,

delivered the opinion of the court.

This case is nearly the identical case heretofore decided by this court, and reported in 14 Mo. 46. The plaintiffs in that case were Scott & Mudge. In this, Eddy is the assignee of Scott & Mudge ; it is upon the same policy, and for the same loss. Upon the trial below, in this ^present suit, the plaintiff offered to prove as follows : That the less was by-a peril insured against — was a total loss, and the defendant notified thereof as provided for by the policy. The boat, at the time, was well officered, manned and equipped, and engaged in the navigation covered by the policy ; that at the time of the sale of the boat by Ealer to Scott & Mudge, -nothing was-said or agreed who should afterwards be master ; but the defendant had notice that Ealer would not longer be master ; that Scott was afterwards master, with the knowledge of the defendant,-and without objection by the defendant; that on the trip during which the loss occurred, Scott remained ashore sick, and McKinney, for the trip, was made master, without notice to defendant or knowledge of it, and that McKinney was a competent master ; that since said loss the policy was transferred, as alleged, to Lewis Beach and Joseph A. Eddy, who were, at the time of the transfer of the policy by Scott & Mudge to Beach & Eddy, partners, trading under the style of Beach & Eddy ; that Beach was dead when this suit was brought, and -that Eddy is the surviving parter of said firm, and that the boat, at the time of the loss, was worth $8000.

To this testimony the defendant objected, because, if true, it is not sufficient to enable the plaintiff to recover ; because the offered testimony admits -that the master of the boat was changed by the insured without giving -notice thereof to the insurers. The court sustained this objection and rejected the testimony, to which the plaintiff excepted, and thereupon took a nonsuit. Afterwards, making an unsuccessful motion to set the same aside, he brings the case here by writ of error.

The evidence offered did not take the case out of the principles of the decision heretofore made by this court. The company were still not advised of the fact that McKinney was made master of the boat. They knew that Scott had been, and made no objection to him, nor did they terminate the risk on account of Scott’s being made master. But surely that does not amount' to an assent that anybody else may be made master.

The company had not the opportunity of acting in regard to McKinney’s being made master. They did not know it — could not be presumed to acquiesce in it. There is much force in the remark of the defendant’s counsel, in his brief : “It is time to-stop the practice of trying cases over again every time there is a change of a judge on the bench.”

Being satisfied that the points and objections now made by the plaintiff have been overturned by the case heretofore reported, we content ourselves by referring to that decision.

Let the judgment be affirmed ; the other judges concurring.-