The Madison Insurance Company v. Lostutter, 4 Ind. 558

Davison, J. Covenant by the defendant in error against the plaintiff in error on a policy of insurance. The policy was effected in the name of the plaintiff below, but the cargo insured was owned jointly by him and his three brothers. He claimed to recover only to the extent of his interest in the cargo. Nine pleas were pleaded, upon which there were issues. Verdict and judgment for the plaintiff.

Upon the trial, two of the joint owners, viz., John and Wilson Lostutter, were, over the defendant’s objection, permitted to testify in the cause, they having first executed to the plaintiff a release of all the interest they might or could have in and to any judgment that might be recovered in the suit then on trial. That release was delivered to the plaintiff’s counsel, and by them filed in Court. It appears that the policy did not cover the interest of said John and Wilson in the cargo.

It is contended that these witnesses were improperly admitted to testify in the cause: that the release was insufficient; first, because it was not delivered to the plaintiff; secondly, it should have released the defendant below from all claim by them upon her for any loss of property insured by the policy. There is nothing in the objections. The release was placed on file in Court. It was there for the use of the plaintiff He can procure it at any time. And it will constitute a bar to any suit that may be brought against him by the releasors, relative to the judgment in this cause. Mr.

Greenleaf says, “It is not necessary that the release be actually delivered by the releasor into the hands of the releasee. It may be deposited in Court for the use of the absent party.” 1 Greenl. Ev., s. 429. J. G. Marshall, for the plaintiff. I). S. Major and A. Brower, for the defendant. These witnesses, after they executed the release, could have no interest in the event of the suit. The record could not be used either for or against them in any suit which they might institute against the company. At most, their interest would be, as to the question involved in the suit.

Such interest would go to their credibility merely, and not to their competency. “ One underwriter ma,y be a witness for another underwriter upon the same policy; or one seaman for another whose claim for wages is resisted, on grounds equally affecting all the crew.” 1 Greenl. Ev., s. 389. But the record shows that the interest of these witnesses in the cargo insured, was not covered by the policy. Such being the case, they were competent without any release. Per Curiam. The judgment is affirmed, with 7 per cent, damages and costs.