
    Daniel J. Mc Laughlin, Resp’t, v. The Great Western Insurance Co., App’lt.
    
      (New York Common Pleas, General Term,
    
      Filed June 6, 1892.)
    
    1. Insurance (Marine)—Undisclosed owner of interest insured may sue.
    An action upon an open policy of marine insurance on account of whom it may concern and payable to one who is in fact the agent of the owner of the interest insured, may be maintained by such owner.
    2. Same—Former adjudication.
    A former adjudication in an action to recover for loss of freight is binding and conclusive upon the defendant in an action for loss of vessel as to every defense open and available to it in such previous action.
    Appeal from judgment in favor of plaintiff, and from order denying motion for a new trial.
    This action is brought upon a policy of marine insurance to recover $3,000 and interest upon one-third of five-eighths of the British bark “ Brothers’ Pride,” which was the plaintiff's share in the vessel. British vessels are divided in sixty-four parts, each sixty-fourth being called a share. The plaintiff was the owner of thirteen shares.
    The policy was issued January 6, 1879, and the material parts of it will be found at folio 156, Exhibit 101, by which the defendant insured “P. I. Nevius & Son, on account of whom it may concern, in case of loss to be paid to 0. A. Palmer,” against the usual perils of the seas, etc., including barratry of the master and mariners, for a voyage “ at and from Cardenas to and at Cienfuegos, and other port or ports in Cuba, and thence to a port north of Hatteras, with liberty of cargo coal over registered tonnage.”
    The vessel sailed from Cardiff with a cargo of coal to Cienfuegos, sailed from there to Cardenas in ballast, where she took aboard a cargo of melado and started for New York. She left Cardiff about the 6th of January, 1879. She arrived at Cardenas about the middle of April, 1879.
    The vessel was totally lost by one of the perils of the sea on the voyage from Cardenas tó New York, on or about May 7, 1879.
    In 1880, an action was' commenced in the superior court of the city of New York, by Acalus L. Palmer, Charles A. Palmer and Daniel J. McLaughlin, against the defendant, to recover for the loss of the vessel and her freight under three policies of insurance, of which the policy in this suit was one, a second policy being for $2,000; each of these being on the hull of the vessel, and the third being a policy of $5,000 upon the freight. The entire vessel was owned by these three plaintiffs, and the first action was brought with the intention of saving multiplicity of suits, but before the trial of that action, which occurred in October, 1885, the plaintiffs, finding that the defendant was unwilling to waive the objection that the claims upon the three policies could not be made the subject of one action (because while the plaintiffs could sue on the freight policy as owners of the entire vessel they could not jointly sue on the separate shares of McLaughlin and Acalus L. Palmer), new actions were commenced, one by Acalus L. Palmer upon the policy which covered his share of the vessel, and the other, which is the present action, by Daniel J. McLaughlin, to recover upon the policy upon his share of the vessel.
    The action in the superior court upon the freight policy was tried and resulted in a verdict in favor of the plaintiffs. An appeal from the judgment was taken to the general term of the superior court, which affirmed the judgment of the trial term, and from that judgment an appeal was taken to the court of appeals, which also affirmed the previous judgment. The judgment was affirmed by the court of appeals in December, 1887.
    
      Treadwell Cleveland, for app’lt; Wm. W. Goodrich, for resp’t.
   Pryor, J.

Of the many grounds of defense taken at the trial, appellant now relies and insists upon four only; namely, that plaintiff had no insurable interest in the vessel; that he was not a party to the policy in such sense as to be competent to maintain an action on it; that the trial judge erred in holding the judgment of the superior court to be res adjudicata upon the issues covered by it and here in litigation; that he committed error in his rulings upon evidence.

I. That the plaintiff was owner of thirteen-sixty-fourth shares of the vessel was established by evidence so clear and conclusive. that the learned trial judge rightly assumed it as an incontrovertible fact in the case.

II. The policy runs “ P. I. Nevius & Son, on account of whom it may concern; in case of loss to be paid to C. A. Palmer.” The evidence is ample to authorize the inference that the insurance was of plaintiff’s interest, and that the loss was payable to Palmer for and on behalf of plaintiff.

Counsel for appellant is mistaken in the assumption that the learned trial judge ruled the point as matter of law; for, in express terms, he said to the jury: ‘‘ The question is for you whether in the issuing of the policy the insurance was taken on account of this plaintiff, as the person concerned in it, and whether it was taken out for him to insure his interest, or whether the condition that it was payable to Palmer did not indicate that it was Palmer’s interest that was insured.” In accordance with the clear weight of evidence the jury found that the insurance was of plaintiff’s interest and for his benefit; and this being so, plaintiff is perfectly competent to maintain the action.

At common law an undisclosed principal might assert and enforce his interest in a simple contract made in the name of another but for his benefit; and, in this state, by express provision of statute, “ every action must be prosecuted in the name of the real party in interest,” except that it is allowable, but not imperative for a trustee to bring the suit. Nothing in the law of marine insurance takes the case at bar out of the operation of the rule. Finney v. Bedford Ins. Co., 8 Metc., 350; Pacific Ins. Co. v. Catlett, 4 Wend., 75.

Appellant confidently cites Cone v. N. F. Ins. Co., 3 T. & C., 33; 60 N. Y., 619, as enunciating a contrary doctrine; but there the policy was not expressed to be on account of whom it might concern, and the loss was payable to Cone “ as his interest may appear; ” and so the ease is plainly distinguishable from the present.

III. As to the defense of res judicata, we do not perceive how the fact that in the superior court the insurance was of t\\e freight .and here is of. the vessel, is operative to avoid the estoppel of the former judgment.

In conformity with the settled law of“ this state, we hold that j udgment to be res judicata not only of all issues that were actually agitated, but of every question that might have been litigated under the pleadings. Hence, every defense open and available to appellant in the previous action is concluded against him in the present action.

In his argument, counsel for appellant implies that, conceding the estoppel of the former judgment, he was not precluded in this action from maintaining the following defenses: That the vessel was unseaworthy; that the policy was voidable for fraud, and that the loss was not by a peril insured against. We do not assent to this restricted operation of the estoppel of the prior judgment ; but be it so, and still the evidence is ample to support the verdict upon every issue.

IV. The only plausible exception to evidence is to the admission of statements not made in the presence of defendant’s representative ; but those statements were of the res gestae, as coincident with the fact of the insurance and the issuance of the policy, and. identifying the interest and the party insured.

The record discloses no error ; and the judgment and order are affirmed, with costs.

Bischoff, J., concurs.  