Western Assurance Co. v. Chesapeake Lighterage & Towing Co.

65 A. 637, 105 Md. 232, 1907 Md. LEXIS 5

• Court: Court of Appeals of Maryland
• Decided: February 13, 1907
• Status: Published

Opinion

Boyd, J.,

delivered the opinion of the Court.

This is an appeal from a judgment rendered against the appellant, in favor of the appellee, on a policy of marine insurance on a cargo of corn. The case was previously before this Court on the appeal of the Towing Company, when the judgment was reversed and a new trial awarded. Towing Co. v. Assurance Co., 99 Md. 433. Originally the declaration contained the common counts and a special count on the insurance policy, numbered 7. Before the second trial a new seventh and an eighth count were filed. The seventh alleges that the plaintiff (appellee) was engaged in the business of carrying merchandise on scows in the port of Baltimore and procured from the defendant (appellant) insurance on twenty-seven scows for the period of a year from May 13th, 1899; that on the 29th of July, 1899, while the policy was in force, the plaintiff received on board of one of the scows included in the policy (scow 134) about 6144 bushels of corn which was to be carried from Canton Elevator No. 1 to the steamship “H. H. Meier," lying at Locust Point, and after the corn was laden on said scow, it was by reason of the perils insured against overturned and the corn lost. It is then alleged that the Insurance Company of North America, as assignee of I. M. Parr & Sons, recovered of the North German Lloyd Steamship Company, which owned the “H. H. Meier,” and had contracted with I. M. Parr & Sons to carry the corn from Baltimore to Bremen, the value of the corn, under a decree of the United States District Court; that the Elbarge Transfer Company which had contracted with the North German Lloyd Company to carry the corn from the elevator to the steamship was required to pay the North German Lloyd Company the value of the corn, and that the plaintiff, which had contracted with the Elbarge Transfer Company to carry the corn, was required on account of said decree to.pay that company the sum of $2,500. The amount of the insurance on merchandise on this scow of the appellee was $2,000 and it sued for that amount, with interest. The eighth count is the same in substance as the seventh, excepting it does not refer to the decree of the United States Court. In addition to the general issue pleas, the defendant filed three special pleas to the seventh and eighth counts which are numbered 3, 4 and 5. The third alleged that “the loss in said seventh count of said declaration mentioned” did'not occur by reason of any of the adventures or perils in said policy of insurance mentioned and insured against, but by reason of the unseaworthiness of the said scow, which existed at the commencement of the risk and continued to the time of the loss; the fourth alleged that at the time of the loss the plaintiff had no insurable interest in the goods mentioned; and the fifth alleged that at the time of the loss the scow was not in the service of the plaintiff but had been hired to the Elbarge Transfer Company, which at the time was carrying the goods and the plaintiff was not responsible for the safe carriage of them and the loss is not such as is payable under the policy. The trial resulted in a verdict for the plaintiff of $2,500 — being the amount of the insurance, with interest allowed by the jury.

1. There are two bills of exceptions in the record — the first presenting the ruling of the lower Court on a question of evidence and the second embracing the rulings on the prayers. Mr. Hilken, a member of the firm of A. Schumacher and Company, agents for the North German Lloyd, was asked whether his firm paid to the Insurance Company of North America the value of this corn, to which he replied; “Yes sir, we were sued for the value of this corn, and we paid the amount.” We see no valid objection to the admission of that evidence. The record states it was objected to “because this testimony was not followed up by an offer of the record of the suit under which such payment was made.” It is said on behalf of the appellant that unless the record was “produced and showed that it was binding on those who successively made payment one to the other, these other payments were merely voluntary and could not be a loss under defendant’s policy,” but manifestly this was not correct. In the first place the record of the suit of the Insurance Company of North America against the North German Lloyd would not necessarily show that the plantiff was .bound by the decree in the admiralty proceeding, as it was not necessary for it to be a party of record. But regardless of that, the Court could not control the order in which the plaintiff offered its proof. ‘‘A party cannot offer all his evidence at the same moment; and when he tenders evidence legal and material to the issue, it is the duty pf the Court to receive it, and it cannot require him to state in advance what other proof he intends to offer.” Patterson v. Crowther 70 Md. 132. The payment of the money was one of the issues made by the pleadings, and in the eighth count, as we have seen, the decree was not mentioned, although it was alleged that the North German Lloyd Company had paid the value of the corn to the Insurance Company of North America, which was subrogated to the rights of the owner. But inasmuch as by the defendant’s ninth prayer the jury was instructed that there was no legally sufficient evidence that the plaintiff had paid any sum of money on account of the decree, and therefore the plaintiff was not entitled to recover under the seventh count of the declaration, it is not perceived how the defendant could have been injured' because the plaintiff did not offer to follow up the testimony of Mr. Hilken by introducing the record of that suit, especially as we said in the former appeal that “any recovery from the appellee (the assurance company) by the appellant would not be on the theory of reimbursing the latter for what it would have to pay as the result of the decree in the admiralty proceedings — there was no remedy over against the appellee by reason of that suit, but if liable at all it was on the contract of insurance.” It'was proper to prove that the owners of the corn had been paid for its loss and to trace the payments to the Towing Company, and the question objected to was one of the links of evidence on that subject.'

2. In passing on the prayers we will follow the order adopted at the argument by the appellant and will now consider its first prayer'which raises the question as to whether there was double insurance. It was to the effect that inasmuch as the corn was covered by a policy of insurance issued by the Insurance Company of North America to I. M. Parr & Sons, and said policy was prior in date to that sued on in this case, and that company paid the owners of the corn its full value,-therefore under the terms and conditions of this policy the plaintiff was not entitled to recover, under the pleadings.

This policy was issued “To Chesapeake Lighterage and Towing Co., on account of whom it concerns,” and it is contended that as such a policy enures to the benefit of the owner there was double insurance. The. clause in reference to other insurance is : “That if the said assured shall have made any other insurance upon the property aforesaid, prior in day of date to this policy, then the said Western Assurance Company shall be answerable only for so much as the amount of such prior insurance may be deficient towards fully covering the property insured;” etc. The appellant relies on the case of Fire Insurance Association v. Merchants' and Miners' Trans. Co., 66 Md. 339, as conclusive of the question, but we do not so regard it. The Transportation Company had stored cotton in the freight sheds of a railway company, awaiting vessels to carry it on to its destination and insured it against loss by fire. A fire occurred which destroyed or injured a large part of it. It was shown that by the terms of the bill of lading under which the Transportation Company received the cotton, it was expressly exempted “from loss by fire, from any cause on land or water,” and, as was said in the opinion, “consequently they were not liable over to the owners for this loss.” Before that suit was brought all charges and expenses due the Transportation Company had been paid and it had no interest of its own in the. cotton, except to the extent of those charges and expenses. This Court held that the insurance of the Transportation Company “for account of whom it may con cern’ ’ enabled it to recover the money for the benefit of the owners of the cotton, upon their adoption of the insurance, and said “that extrinsic evidence may be adduced to show who was in fact the party concerned, and any one having title to the property at the time of loss may, by adoption of the contract, avail himself of its advantages, provided it be shown that his interest was within the contemplation of the party procuring the insurance.” That being an insurance against loss or damage by fire, and the Transportation Company not being liable for loss by fire, and not owning any of the cotton, the Court said it would be difficult to believe that the Transportation Company would have insured the cotton to an amount not exceeding $50,000, “for account of whom it may concern,” without intending to protect thereby the interest of the owners, and held that there was sufficient evidence to warrant a jury in finding such intent. The Court also found that there was enough in the record to authorize the lower Court to submit to the jury the question of the adoption of the policy by the owners of the cotton. It will thus be seen that the facts of that case differ radically from those in the one now being considered, for here the Towing Company was responsible, as a common carrier, for the loss of the corn, and there is no evidence whatever to show that I. M. Parr & Sons ever adopted this policy of insurance, or made any claim to it, or that it was “within the contemplation of the party procuring the insurance” that any owner of the property was to receive the insurance while the appellee was itself liable as a common carrier.

There can be no doubt that the appellee had an insurable interest in the corn for its own benefit — in order to indemnify itself against a possible liability for loss, as a common carrier. In Phœnix Ins. Co. v. Erie Trans. Co., 117 U. S. 312, it was said “a common carrier, a warehouseman or a wharfinger, whether liable by law or custom to the same extent as an insurer or only for his own negligence, may, in order to protect himself against his own responsibility, as well as to secure his lien, cause the goods in his custody to be insured to their full value, and the policy need not specify the nature of his interest. ” See also Crowley v. Cohn, 3 Barn. & Ad. 478; Home Ins. Co. v. R. R. Co., 71 Minn. 296; Savage v. Corn Exchange Ins. Co., 36 N. Y. 655; 19 Am. & Eng. Ency. of Law, 946. The cases show that it is not necessary for the policy to state that it was one of indemnity, and there is no reason why it should under such circumstances as we have before us. It was issued to a common'carrier, covered merchandise while on board twenty-seven scows and was confined to the waters of the harbor of Baltimore and the Patapsco River and its tributaries. The Towing Company was named as assured, and the appellant must have known that it was a carrier. There is nothing in the record to show or suggest that any officer or agent of the appellee knew that I. M. Parr & Sons had insured this corn, and if the theory of the appellant be correct, that the prior insurance taken out by them defeats a recovery on this policy it might do great injustice to the appellee or others similarly situated. Such a doctrine might prevent a carrier from protecting itself by insurance in many, perhaps most, instances, or at least make its protection dependent on the mere fact whether the owners of goods carried by it had taken out prior insurance, which sometimes could not be easily ascertained before the shipment began. The circumstances of this case all point to the intention, on the part of assured and insurer, that this policy was primarily to protect the appellee and, in the absence of evidence to show that the owners of the corn were in fact the parties “concerned,” and, as such, had by adoption of the contract availed themselves of its advantages, and that their interest was within the contemplation of the party procuring the insurance, it seems clear that the appellant’s first prayer was properly rejected, as there was not double insurance within the meaning of the policy, under the facts in this case.

By its second prayer the appellant asked that the jury be instructed to render a verdict for the defendant, because “by the uncontradicted evidence in this case the lighter in which the grain mentioned in the evidence was loaded was unsea worthy at the time of the alleged inception of the risk under the policy sued on in this action.” The Court rejected that prayer and submitted the question to the jury, as to whether the scow was seaworthy, and in doing so, there was, in our opinion, no error. The uncontradicted evidence did not show that the scow was unseaworthy, but on the contrary there was considerable testimony to show that she was seaworthy. The superintendent of construction and repairs of appellee’s scows testified that the time of the accident “the scow was in perfect order as far as a scow of her age could be.” The manager for plaintiff said that she met with an accident the fall before the loss of the corn and “after these repairs she was in'first class condition,” and other witnesses testified to the same effect. The Captain of the scow at the time of the accident said “she was perfectly in good order; perfectly dry, no water in her.” The day before she had carried a load from the elevator at Canton to the H. H. Meier at Locust Point, the unloading of which was not finished until half past ten or eleven o’clock at night. The next morning she was towed over to Canton for another load and her captain and mate testified that “she was all right.” After she was loaded she was pulled out to make room for another scow and when at the end of the wharf the line slipped from the bitt, when she got away and drifted out into the stream. No one was aboard of her then but the Captain called a tug which took him to her and he got aboard of her. The mate testified that “when Bennett (the captain) got aboard her she was rolling; this was caused by the passing of the steamboat ‘Louise’ * * * as the ‘Louise’ passed her, the scow was lying broadside to her, drifting up town; the swell from the ‘Louise’ struck her broadside and started her to rolling; witness noticed her until she went over.” He also said “it was a pretty fair morning with right smart easterly wind.” His evidence, as well as that of others tended to show that the rolling produced by the swell of the “Louise” and the easterly wind caused the corn to shift, thereby upsetting the scow. So without quoting further from the testimony there was evidence which tended to show that she did not sink-by reason of her being unseaworthy. It is true there was some from which it could be fairly argued that she was not seaworthy, but it was a question for the jury. In Field v. Ins. Co. of North America, 3 Md. 244, our predecessors had occasion to consider the question. In that case there was no direct proof of the seaworthiness of the vessel and no proof of stress of weather but. the goods were found saturated ' with water and seriously damaged. The court below granted a prayer that the plaintiffs were not entitled to recover “because they had offered no testimony of any loss by perils of the sea within the terms of the policy,” but our predecessors held that it was error and reversed the judgment. LeGrand. C. J., after fully recognizing the law to be that “if the vessel spring-a-leak, or becomes disabled, or some essential defect is discovered soon after the risk commences, without any apparent cause, from the perils within the policy, or rather when it satisfactorily appears that no accident can have happened to occasion the damage or defect, it is inferred she was defective at the beginning of the risk, and not seaworthy,” said: “In the present case the prayer assumes that the damage was occasioned by a leak to be ascribed to the defectiveness of the vessel, and to no other cause. The jury would probably have found the fact to be as assumed by the prayers, but the Court erred in taking that question from their consideration. The presumption of law is that the vessel was seaworthy. Whether the evidence removed that presumption was for the jury and not for the Court.” In this case where there was an attempted explanation of the cause of the accident, which, if believed by the jury, would have justified it in finding that it was not because the scow was unseaworthy, there was no error in the lower Court refusing to withdraw the question from the jury.

The defendant’s third prayer was also properly refused. It asked the Court to say- that as it appeared from the' uncont'radicted evidence that the loss was occasioned by the capsizing of the lighter without any unusual occurrence to account for the same the presumption wás that the lighter was unsea worthy, ‘‘and inasmuch as the plaintiff has offered no evidence to rebut this presumption, it is not entitled to recover under the pleadings in this action.” From what we have already said, it will be seen that there was, in our opinion, some evidence tending to show that ¿the accident was caused by the rolling of the scow (produced by the wind and the swell made by the Louise) and the consequent shifting of the corn while the scow was adrift which caused it to upset, and this prayer was properly rejected.

The defendant’s fourth prayer asked the Court to instruct the jury that the plaintiff had “offered no legally sufficient evidence that the loss of the grain mentioned was caused by reason of any of the perils insured against by the policy sued on in this action,” etc. The adventures and perils which the defendant assumed were “of the seas, lakes, rivers, canals, railroad, fires, jettisons, barratry of the master and mariners, and all other perils, losses and misfortunes, occasioned by perils of the sea, that have or shall come to the hurt, detriment or damage of the said goods and merchandise, or any part thereof.” There can be no doubt that the actual loss of the corn was sustained by reason of the capsizing of the' scow —the only question being as to what occasioned that. In Merchants Mutual Ins. Co. v. Butler, 20 Md. 41, Bartol, J., quoted with approval from Parson’s Treatise on Maritime Law, as follows: “It is now, however settled, both in England and in this country, that if the loss is caused by a peril insured against, the underwriters are liable, although the remote cause be the negligence of .the master and crew, and that whether barratry be insured against or not.” If, therefore, the scow was permitted to drift by reason of the negligence of the crew and there was evidence from which the jury could find that the accident was not caused by its unseaworthiness, this prayer was undoubtedly properly rejected. It is, therefore, unnecessary for us, after what we have said above, to further discuss it or the modification of the fifth prayer.

The sixth relied on a provision in the policy, that in case the insurance is made for the benefit of a carrier or bailee of the property assured, other than the person named as assured, the company should not be bound to pay any loss, and asked the Court to instruct the jury that the plaintiff was not entitled to recover any amount by it paid to the North German Lloyd or to the Elbarge Company on account of the loss of the grain, as it appeared by the uncontradicted evidence that the North German Lloyd was a common carrier or bailee of said property. There was no liability on this policy to either of those companies, but it does not follow that the appellee could not recover for insurance taken but to indemnify itself against loss. After what we have already said in discussing the first prayer we do not deem it necessary to say more concerning this. It was properly rejected.

The seventh asked the Court to say there was no legally sufficient evidence of any loss payable by the defendant under the terms of its policy, and therefore the plaintiff, under the pleadings was not entitled to recover. The facts proven in the case show that the appellee was liable as carrier to the Elbarge Transfer Company and that it had paid that company for the corn. The appellant offered in evidence the account which was presented to the Insurance Company of North America by I. M. Parr & Sons, the receipt of that firm to the Insurance Company for the amount and the policy under which it was paid. The account was for “mixed corn lost in transit on scow 154 between elevator and S. S. ‘H. H. Meier,’ ” was dated July 29th, 1899, the date of this loss, and gave the number of bushels and price per bushel together with elevator charges and inspection amounting in all to $2,290.47. Those papers were doubtless offered by the appellant as reflecting upon its defense of double insurance, but they were in evidence for what they were worth and furnished some evidence of the amount of the loss for the corn even if the plaintiff’s evidence had been deficient in respect to that. The evidence shows that the corn was a total loss and there being nothing shown which would exempt the carrier, we cannot understand upon what principle this prayer could have been granted. The eighth prayer was not pressed in this Court, but we might add that there was ev idence that the plaintiff undertook to carry the grain, and hence it could not have been granted.

In discussing the defendant’s prayers we have sufficiently considered the questions presented by those offered by the plaintiff, and granted by the Court, tq relieve us of any discussion of them. It is only necessary to say that we find no reversible error in them.

Judgment affirmed, the appellant to pay the costs.