Brooke v. Louisiana Insurance Co.

5 Mart. (N.S.) 530

• Court: Supreme Court of Louisiana
• Decided: April 15, 1827
• Status: Published

Opinions

Porter, J.

delivered the opinion of the court. This case came before the court at the close of the last June term, and was decided by two of the judges, in favor of the plaintiff. An application for a re-hearing having excited doubts in our minds, in relation to the correctness of our judgment, we granted the request of the defendants, that it should be tried again. It has been now heard before a full court, and has been most carefully and ably argued. Vol. 4, 641 & 681.

Eastern Dis’ct April, 1827.

I agree with the presiding judge of the court in the conclusion to which he has arrived: but as the reasons by which my mind has finally, and with much hesitation, come to that conclusion, are not the same which seem to influence him, I think proper to state those that have Induced me to change my opinion.

I retain my former impressions, in respect to the intention of the parties: but admit that intention is not so clearly proved, as to authorise us to deviate from the legal signification of the terms used in the contract. If the case were decided on principle alone, unfettered by authority, I should think the plaintiff entitled to recover. I see no absurdity whatever, in considering the words “total loss,” to refer to the entire destruction of one mule, as well as to the whole cargo. There can be no dispute about the literal meaning of the words; but the question is whether the intention of the parties, and the rules of law do not affix a technical meaning to them in this policy. In regard to articles other than memoranda, the words “total loss" mean a loss of one half: this is the uniform and admitted meaning given to the expression, and parties using them in relation to such a subject, would be understoood to use them in their legal sense. And yet in such a case, every argument that we have heard in respect to a part, not being the whole, and that less than the whole, is not a total loss, would apply with as much force, as to that now before the court.

I see, therefore, nothing absurd in the decisions which the courts in England have made on this subject. Nor can I agree that the doctrine rests on the authority of a single individual. It is the decision of the whole court of king’s bench. It was acquiesced in at the time, by the counsel who argued the cause. Had they doubted its correctness, they could, and it is to be presumed, would have taken it to a higher tribunal. The court of common pleas have recognised the same doctrine. It has not been controverted since, though in a country so eminently commercial as England, a vast number of cases must have arisen where it was the interest of parties to establish a different principle. Those who know with what zeal and learning, the doctrines which fall from bench in that country, are examined by the profession, when, in their opinion, they are unsupported by reason and law, will feel what weight this consideration is entitled to. In addition to this, it has been shewn on the last argument, that in the latest work published in England on insurance, the question is considered as settled, and the writer states the rule without expressing a doubt as to its correctness. Benecke, on insurance.

It is a very unsatisfactory way of assailing authority in questions of law, to trace it up to its source, and then say no matter how often it has been sanctioned, or how long acquiesced in, that it is but the opinion of the individual with whom it originated. Every doctrine in jurisprudence might be assailed and overturned in this way, for they must all have had a beginning. The opinions of jurists, and tribunals derive their authority from the reasons on which they are founded, the sanction which others have given to them; or the length of time they have been acquiesced in without opposition; and their authority is not diminished, by shewing that they had their origin with a particular jurist, judge, or court.

I consider the rule then, well settled in England, and I believe it would be the most equitable in its application in the instance before us. Perhaps it was this feeling pressing strongly on my mind, after the first argument, induced me too readily to conclude, that the weight of authority was equal. Further examination, and longer time for reflection, have convinced me it is not, that it is decidedly with the defendants, and I feel it my duty to yield my opinions to those we have taken as guides in these matters.

We are in this state without any legislative enactments on the contract of insurance, and this court after much argument and great deliberation, declared on a former occasion, for reasons which need not be here repeated, that this contract must be construed in relation to the law merchant as understood in the other maritime cities of the Union. This decision has been for some time before the community. The legislature have not thought proper to prescribe to us a different rule. We are therefore bound to consider, that the parties to this suit contracted in relation to those principles of law which we declared should govern such contracts: Semper in stipulationibus in cœteris contractibus id sequimur, quod actum est; aut si non appareat, quid actum est, erit consequens, ut id sequammur quod in regione, in qua actum est, frequentatur. Dig. Liv. 50, tit. 17 Liv. 34.

I agree with the counsel for the plaintiffs, that there is nothing in the expressions used by the court, in the case of Barry vs. The Louisiana Insurance Company, which binds this court to adopt, from time to time, every rule which the tribunals of our sister states may establish in relation to this matter. We did not intend by such declaration, to place our understanding of the law under the controul of others. And if any doctrine should be settled by them at variance with rules which already existed, or contrary to our understanding of the lex mercatoria, we should certainly respect their opinions, but we would follow our own.

But at the time this court declared that the contract of insurance must be understood here as it is in the other maritime cities of the union, the rule was already settled in every state where the question had arisen and in the supreme court of the United States, in relation to words which we believe to be convertible with those used in this policy; that nothing short of an absolute destruction of the whole property insured, would render the assurers responsible, and if any portion reached the port of destination, they were disharged from liability, 7 Cranch, 415. 8 ibid 39. 1 Caines, 196. 1 Wheaton, 219. 7 Johnson, 527. 6 Mass. 465.

Now, however the force of authority might be in another country that had not previously made choice of the rules prevailing in the union, there can be no doubt that after that lex mercatoria was chosen as our rule of action here, there was error in saying that the weight of authority was equal. It most decidedly preponderates in favour of the defendants.

Being so, I cannot depart from it in the decision of this case. Whatever the fact may be, we are bound, in the absence of any proof to the contrary, to believe that the parties contracted in relation to the law, as expounded to them by the tribunal of last resort in the country they live in. Having done so, we cannot now tell them their right must be ascertained by a law which, though of a common origin, and alike on almost every other question in relation to insurance, has on this particular branch of the subject, a different and contrary rule.

I concur, therefore, in the opinion, that the judgment of the court below should be reversed; and that there should be judgment here for the defendants.