Held, Error. To instruct a jury upon assumed facts to which no evidence applied was error. Such in to look before attempting to cross the a controversy upon the evidence. railroad track, in order to avoid an whether she crossed or attempted to approaching train, and not to walk | cross the railway at the Ilarris Street carelessly into the place of possible crossing, or at a place not a crossing, danger. Had she used her senses she and that this was a question of fact could not have failed both to hear for their determination. and to see the train which was coming. If she omitted to use them and walked thoughtlessly upon the track she was guilty of culpable negli-structions tended to mislead them by gence, and so far contributed to her withdrawing their attention from the injuries as to deprive her of any right proper points involved in the issue. to complain of others. If using them. Judgment reversed and cause reshe saw the train coming, and yet manded for a new trial. undertook to cross the track, instead Opinion by Field, J. of waiting for the train to pass, and was injured, the consequences of her mistake and temerity cannot be cast No railroad upon the defendant. company can be held for a failure of experiments of that kind. If one chooses in such a position to take risks he must bear the possible consequences of failure. ESTOPPEL. N. Y. COURT OF APPEALS. A recovery by a lessee of the full value of the The Court in its charge assumed that the light from the train might have been obstructed by cars on the side track in the vicinity of the place where the injury was inflicted, and told them that whether the view was thus obstructed was for them to determine; and also instructed the jury as to the right of the deceased in passing the railway upon a public cross-failure of the lessor to complete the ing, to rely upon a substantial compliance by the servants of the company with the duties required by law in giving signals and warnings of approach, and as to its liability if the deceased was killed by the cars while they were running to and over a public street crossing without giving the required and usual signals of approach; and further instructed then upon its own motion that there was buildings thereon according to his covenant. A counterclaim for a quarter's rent was withdrawn on the trial, and the jury were instructed, at the request of plaintiff, that in making up their verdict no allowance was to be made to the lessor for rent for that quarter, and the jury made no allowance therefor. This action was brought to recover the rent for that quarter. Defendant claims that he is not bound to pay it because of the breach of the lessor's covenant to complete the buildings. John M. Scribner, for applt. Samuel Iland, for respt. Held, That the verdict in the former action, in favor of the present defendant, for the whole value of the use of the premises of which he was deprived was the equivalent to possession, and it having been paid he J. Gibson, for applt. Held, That the promise was valid,and upon the happening of the event could be enforced against the sepa rate estate of the promisor. 62 N. Y., 505; 53 Id., 425. Judgment of General Term, affirming judgment for plaintiff, affirmed. Opinion by Folger, J. All concur. INSURA BLE INTEREST. is bound to pay the rent and is es- FIRE INSURANCE. Order of General Term, granting new trial, reversed, and judgment for plaintiff at Circuit affirmed. Opinion by Andrews, J. All con cur. MARRIED WOMEN. N. Y. COURT OF APPEALS. Herrington, respt., v. Robertson, exr., &c., et al., applts. Decided November 27, 1877. A promise by a married woman to repay, upon the happening of a certain event, money advanced by her father as a foundation for a separate estate is valid, and upon the happening of the event can be enforced against her separate estate. This action was brought to recover a sum of money advanced by plaintiff to his daughter, a married woman, on her promise that it should be repaid in an event not unlikely to happen. The advancement was a part of a transaction the purpose and end of which was to create for the daughter a separate estate. U. S. SUPREME COURT. The Germania Fire Ins. Co. et al., plffs. in error, v. Diller Thompson et al. (October, 1877.) Where the owners of whiskey in a distiller's bonded warehouse are sureties on the distiller's bond, their liability for the government tax in case of the destruction of the property and failure of the distiller to pay is an insurable interest. A sale by one of the partners of all his interest in the partnership will not deprive him of this insurable interest. Error to the Circuit Court of the United States for the District of Kentucky. Defendants in error recovered in the Circuit Court of the United States for the District of Kentucky a joint judgment for $3,317.58 on a policy of insurance on whiskey in a distiller's bonded warehouse. The distillery and warehouse were owned and conducted by George II. Deaven, but the spirits were distilled for and owned by the defendants in error at the time the policy was issued. They were also sureties on Deaven's distillery bond to the United States, and as such were liable for the tax on the whiskey if not paid by Deaven, or made out of the whiskey. By the terms of the policies the companies bind themselves to "insure Messrs. Thompson & Co. against loss or damage by fire to the amount of eight thousand dollars, for the term of one year, upon whiskey, their own, or held by them on a commission, including government tax thereon for which they may be liable, contained in the log bonded warehouse of G. H. Deaven." vision in the policy that it should be void "if the property be sold, or transferred, or any change take place in title or possession, whether by legal process, or judicial decree, or voluntary transfer or conveyance." The refusal of the Court to do so, and the charge of the Court to the effect that this change in regard to the ownership, if true, did not defeat the right to recover the amount of the Held, That the companies are liable. Where the only interest of the assured is the full and perfect ownership of the property, that is the interest insured, and the amount to be recovered on the policy of insurance is that full value, or such sum less than that as the insurer stipulates to be liable for. After the whiskey was burned these companies paid their share, with oth-judgments against plaintiffs for taxes, ers, of the loss on the value of the are the errors on which a reversal is whiskey apart from the tax, but by asked. the receipt which they took it was stated that the claim for liability on account of tax remained undecided. Thompson & Co. were sued on their bond with Deaven for this tax, and they notified the insurance companies of the suit and asked them to defend it, which was declined. Judgments were obtained in each case on the bonds, and Thompson & Co. replevined the judgments. By this is meant that they gave bail, which operated as a stay of execution for the period which the law of Kentucky allowed in such cases. The present action was brought by Thompson and Walston to recover the amount of these judgments. But it often occurs that the interest of the party insured is not that of full ownership. His interest may be that of a trustee, or executor, or some other representative character, in which case the recovery will be in accordance with the nature of the contract. The interest of the plaintiffs in the whiskey which is insured is threefold -their own, or held on a commission, and the government tax, for which they may be held liable. If the makers of this policy intended to insure no other interest of Thompson & Co., in the whiskey than their proprietary interest, the interest which at the time of the loss they had as own On the trial evidence was given tending to show that before the fire Walston had sold to his partner, Thompson, all his interest in the partnership, and that Iite Thompson had become interested with the other Thompson in the business to the extent one-fifth. And on the hypothe-ers of the whiskey, the enumerations sis that the jury believed this, the counsel for the companies asked the Court in several forms to instruct the jury that plaintiffs could not recover. This proposition was based on a pro of the two other interests was useless and misleading. The facts show that they had another interest, and since they insured it, it must be presumed that it was known to the insurers. The whiskey which they owned was liable to the government for a tax, and this Mr. Deaven was primarily liable for and had promised to pay, but if he did not, the whiskey could be sold for it. They had also become bound with Deaven on his bond for the payment of this tax. In the event of the whiskey being destroyed by fire, the danger of their personal liability was greatly increased. They were, therefore, right in wishing to be secured against this loss, also, if the whiskey was burnt. It is impossible to give any other construction to the policy than that the company agreed to give this indemnity. language, when brought into relation. with the conceded facts of the case, admits of no other. The This interest was an insurable interest, as much as freights at sea, or profits in an adventure. The whiskey stood between them and their loss. The whiskey, when in the warehouse, was loaded with this tax. It would sell for as much less as the tax, unless the tax was paid. So long as it was in the warehouse, plaintiffs were not liable for the tax. The moment it was lost they became liable. This was a fair subject of insurance. 13 B. Mon., 321; 2 Pick., 249; 62 N. Y., 53. In regard to this interest, Walston had never parted with it. His sale of the partnership interest did not release him from his liability on Deaven's bonds. Nor did the subsequent purchase of Hite Thompson of one-fifth interest in the whiskey have that effect, or destroy Walston's interest to that extent in the whiskey. As to him it is very clear that he had the strongest interest that the whiskey should be secure from fire until the tax on it was paid, since its continued existence was his best, if not his only, security against liability on the bonds. Judgment affirmed. Opinion by Miller, J. FIRE INSURANCE. PART NERSHIP. RECEIVER. N. Y. COURT OF APPEALS. Keeney, recr., &c., applt., v. The Home Ins. Co. of Columbus, O., respt. Decided December 11, 1877. The appointment of a receiver in an action to dissolve a partnership does not change the legal title to or possession of the partnership property so as to avoid a policy of insurance. Where a policy of insurance provides that if any change takes place in the title or possession of the property insured, whether by legal process or judicial decree, &c., then it should be void, only a change in the legal title will avoid it. This was an action upon a policy of insurance on partnership property brought by K. as receiver of the firm. It appeared that after the policy was issued, K., who was a member of the firm, brought an action for a dissolution thereof and was appointed receiver. A dissolution was subsequently adjudged and a sale decreed, but not until after the property was partially destroyed by fire. The policy provided that "if the property be sold or transferred, or any change takes place in title or possession, whether by legal process or judicial decree or voluntary transfer or conveyance without written permission, then the policy shall be void." Defendant claimed that the appointment of plaintiff as receiver without its written permission, effected a change in the title or possession of the insured property within meaning of the above condition and rendered void longed to as many different owners, the policy. Robert Sewell, for applt. Geo. W. Parsons, for respt. Held, That the claim was not tenable; that the legal title to the property was not changed by plaintiff's appointment, but remained in those in whom it was vested when the appointment was made, 2 Atk., 564; 1 Swanst., 573; 4 Russ., 65; 31 Beav., 436; 1 Sand. Ch., 165; 75 Penn. St., 112; Kerr on Rec'rs., 158; that only a change in the legal title would avoid the policy; that there was no such change of possession as would avoid the policy. Order of General Term, reversing judgment on verdict for plaintiff, reversed. the plaintiffs and their assignors. Rob't S. Green, for applt. Held, That to uphold the recovery plaintiffs were bound to show such titles in the several parcels of land as to entitle them to damages not merely to the possession, but to the freeholds; they could prove their titles either by conveyances showing paper title, or by such possession as would be presumptive evidence of title; in cases where reliance was placed solely upon paper title, the land not having Opinion by Andrews, J. All con- been occupied, improved or enclosed, cur, except Earl, J., absent. LAND. TITLE. N. Y. COURT OF APPEALS. proof of a chain of title from the original patentee donee was requisite. Possession unaccompanied with paper title requisite to furnish the pre Miller et al., respts., v. The L. I. sumption of ownership sufficient to RR. Co., applt. maintain this action must be actual. Decided December 11, 1877. Such possession of lands unoccupied, To uphold a recovery in an action for damages unimproved and unenclosed can be to unenclosed and unimproved land, the proved by showing that the lot was plaintiff must show such title as to entitle kept as a wood lot of suitable size for him to damages not merely to the possession but to the freehold; such title may be an improved farm, and that the owner shown by conveyances showing paper title, of the farm habitually for some years or by such possession as would be presump-cut thereon his firewood, sawlogs, tive evidence of title. Occasional entries upon a wood lot at long intervals of time do not furnish evidence of the requisite possession. Reversing S. C., 3 W. Dig., 323. This was an action to recover for damages caused to certain lands, mostly unenclosed and unimproved, on Long Island, by a fire set by a passing engine on defendant's road. The land consisted of fifty-four different parcels, claimed to have be fencing, and building timber. 14 Wend., 239. Occasional entries at long intervals of time upon such a lot do not furnish evidence of the requisite possession. Judgment of General Term, affirining judgment for plaintiffs, reversed and new trial ordered. Opinion by Earl, J. All concur, except Folger and Miller, JJ., not voting. |