Williams v. Rost

13 La. Ann. 327

• Court: Supreme Court of Louisiana
• Decided: May 15, 1858
• Status: Published

Opinion

Spoffokd, J.

The plaintiffs, as agents, purchased a flatboat load of corn for the defendants, and shipped the same from Terre-Haute, Indiana, to defendant’s plantation above New Orleans. The flatboat struck a snag in the Wabash river, about seventy-five miles below Terre-Haute, and sunk. There was almost a total loss of the cargo.

The plaintiffs having paid for the corn, sued the defendant for the price, the cost of loading, and their commissions. He resists payment upon the ground that plaintiffs, when they made the contract to sujoply him with corn, specially undertook to have it insured in Indiana ; that they negligently failed to do so, whereby they became liable to him as insurers, and that they are, therefore, not entitled to recover in this action.

The plaintiffs did undertake to insure in Terre-Haute. But they were not bound to do impossibilities. It is shown that on the arrival of the flatboat at that place, and before she set out upon her voyage, they made an effort to procure insurance in the only office at that place which had been in the habit of taking risks on corn boats; that they had been previously led to suppose that the risk would be taken, by a conference had with the agent of the company; but that, on this occasion, he informed them, for the first time, that instructions had been received from his principals not to insure any more upon corn boats. Intelligence to this effect was communicated by plaintiffs to defendant, through the mail, upon the same day that the boat left Terre-Haute, and immediately after it became known to them.

We think with the District Judge that the plaintiffs used reasonable diligence in attempting to procure insurance in Indiana. They had been led to suppose by the agent of a company there that insurance could be had. It is said that, on the 3d March, nine days before the shipment to the defendant, they were made aware that insurance could not be had, and that they ought, thereupon, to have notified the defendant immediately. But it does not appear that insurance was refused on the 3d of March. On the contrary, an insurance was then effected upon a corn risk by these plaintiffs in behalf of another party. It is true the company declined to insure the full value of the cargo, and insured but little more than half its value. But it does not appear that this was established as the rule of the company ; the inference is that, under the circumstances of that particular case, the underwriters declined to take the whole risk. No such conclusion as that the office would decline to insure at all, or even in full, upon the defendant’s corn when it should be skipped, was to be drawn from the fact that a full insurance could not be had upon the boat load destined for Mr. McCutcheon on the 3d of March.

About the 12th, for the first time, the office declined to issue at all upon such risks. It would seem that the plaintiffs did all that could be done by notifying the defendant of the fact, so soon as they learned it.

Our examination of the evidence has failed to convince us, that the plaintiffs were guilty of such remissness in the matter of insurance as to make them liable to defendant for the value of the property.

Judgment affirmed.