Chase v. Washington Mutual Insurance Co. of Cincinnati , 12 Barb. 595 ( 1852 )

By the Court,

Mitchell, J.

As Boggs does not appeal, the company can not object that he should have had costs on the dismissal of the bill as against him. The plaintiffs now admit that Boggs was a competent witness, and that Bentley was not the general agent of the company, but was only authorized by Boggs to receive applications. This brings us to the point of defense set up by Boggs, and urged upon the argument. Chase & Co. were common carriers, and as such liable for the goods which they had contracted to carry, unless they were destroyed by the act of God, or the enemy of the country. They had therefore a beneficial and an insurable interest. The goods on board the Credit, in which they had this interest, sustained a loss which the plaintiffs were bound to pay to the owners of the goods, to an amount exceeding the sum insured against, and by an accident within those covered by the policy. The defendants admit that if the insurance had been in the name of Teall &. Co. for the benefit of Chase & Co., they would be liable; but they say that by the representation made to them by Bentley, and by the policy sent by them to Bentley, they were only to insure Chase & Co. as common carriers and proprietors of the Credit; that both represented or warranted that Chase & Co. were proprietors of that boat. And Boggs says that Bentley handed him an application in writing, which he has lost, but of which he furnishes a copy; and which he considers as proving such a representation. It is as follows:

“ Scow boat Wm. Gilmer, ) May 1,

“ “ Credit,

Line boat Tim, ) $2000 up.

Season, Canals and Lakes.

S. G. Chase & Co.”

And he states that nothing was said as to Teall & Co. This memorandum, it is very evident, does not contain any thing like a statement of all that was to be done, or of all that was said or understood. On its face it appears as if it were the boats that were to be insured, and not the cargo; and it might be produced to establish such a representation, more effectually than the one pledged/ It does not state the premium to be charged, and only by implication when the policy was to commence; and that erroneously, for it was to be from the 5th of May and is dated 1st of May. There was no false representation in it. There was an omission to state who the owners of the boat were. That could not affect the risk, nor the rate of premium; especially as Boggs, the agent of the insurers, was informed that the boat was good, and that was true in fact. He inquired as to the only'material fact for him to know—whether the boat was good—and was answered in the affirmative: but he made no inquiry who the owner was ; for that could not affect the risk.

It is said Teall &, Co. were the only persons who could insure the cargo of the Credit as common carriers. But this can not be so. Chase & Co. were the common carriers, and as such placed the goods on board the Credit. They could not get rid of their liability which they had incurred to the owners of the goods when they undertook to carry the goods, by engaging with Teall & Co. to furnish boats for the carriage of the same. And as their liability to the owners continued, notwithstanding their contract with Teall & Co., so their interest in the goods continued, and gave them a right to insure, so as to protect themselves against that liability.

It is also said that the plaintiffs could not recover on the policy, because it was an insurance to them as common carriers of the Credit, or as this was explained on the argument, that the policy implied that they were common carriers, and as such owned that boat. Nothing is produced to show this implication, but the commencement of the policy. That does not state, nor is it usual (if it ever is done) to state who are the owners of the vessels by which cargo insured is to be carried. It simply states that the company insure Chase & Co. on account of the Western Transportation Company (loss payable to Chase & Co.) on merchandise by the boats Wm. Gilmer, Credit, &c. It may be fairly implied, as Chase & Co. are insured on account of, or as, the Western Transportation Company, that they are insured as common carriers ; as that would be the business of a transportation company. But as common carriers may carry either in vessels of their own or of others and still be liable as such carriers, to the owners of the goods, when the name of the vessel is given it is left uncertain whether it belongs to the insured or others. If they could not carry, except in their own vessels, the inference might be just that .the vessel was theirs. But as there is no such restriction on their rights, no such inference can be fairly drawn.

As to the tender, Boggs refused to receive any thing, and one of the plaintiffs made a tender in bank bills, and told Boggs that if any thing more was to be paid he was ready to pay it. Besides, there is no clause, as in ordinary fire policies, preventing the policy taking effect until the premium be paid.

It may be that the agreement of the company would have been fully performed, by sending the policy to Bentley for the plaintiffs, if it had remained with him. But it was sent back to Mr. Boggs for correction only; and if he did not choose to correct it accordingly, the plaintiffs had a right to have it back again. This was refused to them, by Boggs, and gives them a right to come into a court of equity for relief. Though it is not mislaid or lost, Or destroyed by time or accident, it was destroyed by the wrongful act of the defendants, through their agent; so far at least as to make its legal vitality doubtful, when it is considered that it was never actually delivered to the plaintiffs.

[New-York General Term, February 2, 1852.

The obliteration and defacement of the policy, as Boggs calls it, was only in lead pencil as Bentley says, and Boggs does not otherwise state it. This was not an alteration, nor a rejection of the policy, but being done with a material that could be easily removed, and which is used that it may be removed, if desired, it amounted to no more than a suggestion of the wishes of the plaintiffs.

As the defendants’ own witness establishes all the facts on which reliance is now placed, the objection can not be raised that the proof is doubtful, contradictory or uncertain. The only point on which there is any contradiction, of seeming importance, between the witnesses, is whether the policy was to bo direct to Chase & Co, or to Teall & Co. for their benefit. That seems to have been the foundation of this defense, but to have no force in law. It was immaterial which way it was.

The referee’s report is correct, and the judgment on it must be affirmed with costs.

Edmonds, Edwards and Mitchell, Justices.]