White v. Steam-Tug Mary Ann

6 Cal. 462, 1856 WL 843

• Court: California Supreme Court
• Decided: July 1, 1856
• Status: Published

Opinion

Mr. Justice Heydenfeldt delivered the opinion of the Court.

Mr. Justice Terry concurred.

The first point made by the appellant is that “ the contract is not for the transportation of persons or property,” etc.

The rule of law in the construction of remedial statutes requires great liberality, and whenever the meaning is doubtful, it must be so construed as to extend the remedy. The objection in such cases goes only to the form of the action, and does not affect the merits of the controversy; it therefore does not commend itself so as to demand a rigid interpretation. We think that the towing of a vessel out to sea by a steamer, is the transportation of property, without resorting to any other than the necessary construction arising from the generic and common meaning assigned to the word “ transport.”

2. The objection that the suit was not brought by the real party in interest is not available. The Insurance Company may haye the equitable right to the proceeds, or a part of them, but the legal right to bring the action remains with the plaintiff, and this constitutes him in the view of the law, as much the real party in interest as if he were entitled to the proceeds. Besides, as in this case, where insurance is effected for only a part of the value, the abandonment cannot transfer the interest of the assured any further than that interest is covered by the policy. Arnould on Insurance, 1159; Potapsco Ins. Co. v. Southgate, 5 Pet., 622. The facts of this case, then, establish that the abandonment could have operated but a partial transfer, and the plaintiff was still an actual party in interest. It is also beyond question that a recovery will bar another action for the same cause, and whenever a defendant is thus protected, he has no right to make the objection which is here set up.

This question was well considered in the case of Propeller “Monticello” v. Mollison, 17 How., and the reasoning there used is to my mind conclusive.

3. It is immaterial to consider whether the defendant was or was not a common carrier, although I think she was, according to the most striking analogies. It is sufficient, however, for the consideration of this point, that the defendant held herself out to the world for engagement in a business for hire, which required prudence, skill, and the use of adequate means, to perform the contracts which she should undertake. The fact, then, that the particular employment required these elements constitutes a stipulation of their existence, which, by clear construction, enters into the contract and forms part of it.

4. In the fourth point made, there is no force whatever. We have been referred in support of it to the case of Murray v. The S. C. R. R. Co., 1 McMullen, 398, decided by the South Carolina Court of Errors. Upon examining that case, we find that the doctrine laid down by the Court cannot be maintained upon principle, reason or authority. Three of the Judges of that Court dissented from the opinion of the majority, and the dissenting opinions are beyond doubt, in my mind, the law of the case.

Judgment affirmed.