Protection Ins. Co. v. Wilson & Co.

THE PROTECTION INSURANCE COMPANY v. JAMES WILSON & Co., WHO SUE FOR THE USE OF SAMUEL KUHN AND OTHERS.

Insurance brokers, holding an open policy of insurance for themselves and whom it may concern, may, in case of damage to property covered by their policy, maintain, in their names, an action for the use of the owners, although the latter are not named in the policy, if it sufficiently appear that the insurance was procured for their benefit. Where the printed terms of an open marine policy are for perils of seas, rivers, fire, and overpowering thieves, and the insurance company, by its agent, indorses thereon "$2,000 on cargo, canal-boat Ben. Franklin, at and from this port, per Miami and Wabash canals, to Covington, Ind., and landed, at 3-8, $7.50," the policy, by the indorsement, covers the ordinary risks of canal navigation.

ERROR to the district court of Hamilton county.

The original action was brought on a policy of insurance in the name of Wilson & Co., for the use of parties whose goods were shipped by J. A. Shaw & Co., at Cincinnati, September 14, 1849, on the canal-boat Ben. Franklin, consigned to said owners at points on the Wabash canal, in Indiana, being insured by the plaintiffs in error under the following circumstances:

Wilson & Co., acting in the capacity of insurance brokers, and for the Protection Insurance Company, received from the latter an open policy, whereby they were held out to be insured "for themselves, or whom it may concern, on all shipments, in the sums hereinafter specified, when indorsed on the back of this policy [554 by Samuel E. Mack, agent at Cincinnati; beginning the adventure upon said property, as per indorsement, and to continue during the voyage, and until safely landed as per indorsement."

The perils assumed are stated in the printed part of the policy, and are in these words:

'Touching the perils which the said insurance company are content to bear, and take upon themselves in the premises, they are of seas, rivers, fire, jettison, enemies, pirates, overpowering thieves (and no other thieves), and restraint and detainment of all kings, princes, and rulers."

The blank used was the ordinary cargo policy upon river risks. Shaw & Co., it appears from the bill of lading, shipped as forwarders and commission merchants, various consignments of goods

Protection Ins. Co. v. Wilson & Co.

on the Ben. Franklin, and applied to Wilson & Co. for insurance upon cargo. The boat was inspected and approved by the proper agent of the insurance company, and the premium was paid, as appears by the following receipt, made by Wilson & Co., for the plaintiffs in error:

"Received, Cincinnati, September 14, 1849, of J. A. Shaw & Co., six 25-100 dolls. premium, for insuring two thousand dollars, on cargo of C. B. Ben. Franklin, from Cincinnati to Covington, Ind. Jas. Wilson & Co., per Woods, for Hartford Protection Insurance Company."

Thereupon the following indorsement was put upon the policy by Samuel E. Mack, the agent, the back of the policy being thickly covered over with other like transactions, all headed "Insured 1849." "$2,000-On cargo C. B. Ben. Franklin, at and from this port, per Miami and Wabash canals, to Covington, Indiana, and landed at =$7.50. SAM'L E. MACK, Agent.

'CINCINNATI, Sept. 14, 1849."

555] *The bill of lading of this cargo shows that there was "shipped September 15, 1849, in good order, etc., by John A. Shaw & Co., forwarders and commission merchants, on board. canal-boat Ben. Franklin, the following property, to be delivered as consigned below." Then follows numerous consignments, among which are three to Kuhn & Wood and M. Amberg, the parties for whose use the action is brought. At the foot of the bill of lading is the following instruction to the consignees: "Insurance taken on cargo with agency in this city, of the Hartford Protection Insurance Company, for $2,000. In case of accident, do n't neglect getting protest immediately and sending to the office here."

The boat proceeded north, and, while on the Miami canal, in a descending lock, between Bremen and St. Mary's, the back floodgate being broken, the boat, as she sunk below its level, was deluged by the water spouting from the flood-gate into her stern hatch. The master and hands testify that this defect of the gate, being under water, could not be detected as they went into the lock. Ten or twelve hands were set to work without loss of time, to force open the front gates of the lock, and the boat was pumped out immediately after being extricated from her situation. No injury to the cargo was suspected, but on arrival at their destination it was found that three consignments above mentioned, consisting of dry goods, were damaged by the water. The nature and

Protection Ins. Co. v. Wilson & Co.

amount of this injury, as well as the ownership and interest of the parties for whose use the action was instituted, are shown by the depositions attached to the bill of exceptions.

Upon these facts judgment was given for the plaintiffs in the court below, and again in the district court upon appeal.

*The plaintiffs in error have assigned as reasons why the [556 judgment of the district court should not stand :

1. That neither the plaintiffs below, nor Shaw & Co., had an in surable interest in the loss.

2. That this particular insurance was not made for the parties for whose use the plaintiffs sued.

3. That the loss was not by a risk or cause within the terms of the policy.

Lincoln, Smith & Warnock, for plaintiffs in error, made the following points:

1. There was no evidence that either James Wilson & Co., or John Shaw & Co., had any interest in these goods at the time of loss, and this was necessary to enable the plaintiffs to recover for their own benefit, for no plaintiff can recover in an insurance case unless he has some interest in the property insured. 2 Duer on Ins., sec. 22; Howard v. Albany Ins. Co., 3 Denio, 303; Murdock v. The Chenango Co.; M. Ins. Co., 2 Comst., 216; 2 Philips on Ins. 661; The Sadlers Co. v. Babcock, 2 Ark. 554; 2 Kent's Com. 371; Hobbs v. Memphis Ins. Co., Sneed, 450.

2. There was no evidence that the policy was taken out for the benefit of those parties for whom suit was brought.

3. The loss was not covered by the policy. No one of the terms used describes this loss, nor does it fall under any of them. They are "seas, rivers, fires, jettison, enemies, pirates, overpowering thieves, and restraints and detainments of kings, princes, and rulers."

Now, these terms have a distinct and well-defined meaning, and nothing in this case falls within them.

They are found in the printed part of the policy, and are there because the form of a river policy seems to have been used, [557 and these terms, by mere inadvertence, not stricken out; and as they can have no possible bearing upon such a risk, they will not be considered. Clearly the dangers of the river are very different from the dangers of the canal, if any such there be; and unless

Protection Ins. Co. v. Wilson & Co.

the court can call the canal a river the plaintiffs can not recover. This can hardly be. Not even the "raging canal" could be-considered as a sea or river, and it is only by so considering it that there is even a pretense of a right of recovery on the part of the plaintiffs below.

It is not uncommon, where blanks are thus used, that words are found in these contracts which were not intended to apply to the contract, and they are, therefore, disregarded.

Many cases of the kind are to be found, and the courts have never considered that a reason for changing the rules of law, or for construing the instruments differently from other instruments of the kind. Mumford v. Hallett, 1 Johns. 443.

That parol proof is not competent in such cases to explain, see Bryant v. Ocean Insurance, 22 Pick. 250; Whitney v. Haven, 13 Mass. 172; Alsten v. Mechanics' Mut. Ins. Co., 4 Hill, 329; Glendale Manf. Co. v. Prot. Ins. Co., 21 Conn. 19; Kennedy v. St. Lawrence County Mut. Ins. Co, 10 Barb. 286.

King & Anderson, for defendants in error, submitted the following points:

1. A general policy, for "whom it may concern," denotes agency, and will cover the interest of any principal for whose benefit the agent can be shown, dehors, to have been acting when he effected the insurance, whether his name was disclosed or not. And the ordinary shipping papers and communications, at the time, between 558] the agent and principal, are the proper evidence as to the intention of the parties. We accede cheerfully to the authority of Newson v. Douglass, 7 Har. & Johns. 451, which plaintiffs in error have cited.

2. Such principal is entitled to recover in the name of the agent or subagent to whom insurance was so made. Arcangelo v. Thompson, 2 Camp. 620; Rider v. Ocean Ins. Co., 20 Pick. 259; Buck v. Chesapeake Ins. Co., 1 Pet. 151.

3. A general marine policy, purporting to insure all shipments indorsed upon it, "as per indorsement," and indorsed with an adventure per Miami and Wabash canals, until safely landed, covers the accidents and perils of canal navigation, though the printed enumeration in the body of the policy is of the "seas and rivers," etc., only, without mentioning "canals." Perrin's Adm'rs v. The Protection Ins. Co., 11 Ohio, 147; Boehm v. Combe, 2 Mau. & Sel.

Protection Ins. Co. v. Wilson & Co.

142; Moore & Porter v. The Perpetual Ins. Co., 16 Mo. 98; 1 Phil Ins., secs. 36, 68; 20 Ohio, 199.

4. That the flooding of a canal-boat, while in a lock, by the rush of water from the flood-gate behind, is a disaster to the boat, for the effects of which upon the cargo, the insured have a right to

recover.

BOWEN, J. The parties who sued in this case were nominal plaintiffs only. They had been agents intrusted with the business of taking risks upon property against the perils of transportation, of fire, and of thieves. For the purpose of executing this agency, they received from the insurance company an open policy to "themselves or whom it might concern," which became operative by the indorsement of Samuel E. Mack, the agent of the company, to the extent named by him. Shaw & Co. were forwarding *merchants, and in behalf of the owner of the goods applied [559 to the plaintiffs below to insure them in the usual form. The bill of lading showed that Kuhn and Rumsey, Kuhn and Wood, and M. Amberg, for whose benefit the suit was brought, were owners of portions of the goods. Wilson & Co., in perfecting this insurance, were the agents of the several owners of the cargo. They acquired and held an interest for them to the amount covered by the insurance. They stood in the light of the mutual agents of the insurers as well as of the insured. Shaw & Co. were interested only in shipping the goods to their owners, and in procuring for them the insurance which was desired. They acquired no insurable interest themselves, nor any right to sue. But Wilson & Co. occupy quite a different relation to the consignees. They procured and held, in their own names, but for those whom it might concern, the policy and its indorsement. An interest, covered by the insurance, was thus created, which it is proper for them to enforce, and which is of such a nature as authorized the suit to be brought and carried on in their names for the use of those who have sustained the loss. The record discloses that the object of this policy was to insure the persons for whose use the suit is brought, as well as others who are named in the bill of lading.

The action being, as we think, properly brought in the names of Wilson & Co., the remaining question to determine is whether the loss is covered by the policy.

It is contended, for the plaintiffs in error, that there is nothing: