8 La. 1 | La. | 1835
delivered the opinion of the Court.
This suit is brought to recover from the defendants, eight thousand eight hundred, and eighty-eight dollars, eighty-eight cents, which the plaintiffs allege tobe owing to them on account of having paid that amount to certain persons styled Joseph Smith & Son, in consequence of a marine policy of assurance, by them subscribed, in favor of said Smith & Son, on the 24th day of August, 1830, in the city of London, &c. They obtained judgment in the court below, from which the defendants appealed.
The facts of the case are the following: Insurance was effected by Smith & Son, on merchandise to be shipped from New-Orleans to Liverpool, (to be laden on the ship Aurora, which was to sail from the former port, on or before the 1st of August, 1830) to the amount of two thousand pounds sterling. Cotton belonging to the assured, was put on board, of this vessel, by their factors and agents, Tayleur, Grimshaw & Sloane, to the value of eleven thousand dollars, and up-wards. The ship left the port a quo on the 3d of July, but met with an accident before she reached the Gulf of Mexico, which caused so serious an injury as to compel her to return and unload, for the purpose of being repaired. Her cargo, which consisted of cotton, was taken out, by order of the shippers, and placed in stores or ware-houses ; that belonging to Smith & Son, together with a-larger quantity, was put into the ware-house or cotton-press of James Freret, jr., where it was insured against fire, by a policy obtained from the defendants at the instance of the consignees of the ship, on the 14th of July, 1830, to continue in force until the 16th of August following. During this
The record contains bills of exceptions to the manner in which commissions to take the testimony of witnesses in England were executed ; also objections to the preliminary proof offered by the plaintiffs, necessary to entitle them to support their action, &c. But, in consequence of our conclusions drawn from the entire facts of the case, we deem it unnecessary to examine these matters.
In the argument of this cause, there was much disputation as to the character of the contract sued on; whether it is a re-insurance or a double insurance, or whether it is neither, and only simply aleatory; not subjected to the rules which govern in either of the former.
We consider it important to settle these questions, as the rights of the parties must be influenced by the nature of the contract under which the plaintiffs claim. It cannot be considered as sole and simple, for two policies existed, subscribed by distinct insurers, and both, according to their terms, covering risks on the property insured, at the time of its destruction and loss ; that made by the plaintiffs, having effect from ’the 25th of June, 1830; and the one executed by the defendants, from the 14th of July, of the same year. The latter can, therefore, be viewed in no other light than as a double insurance, or re-insurance, according to the interest which the plaintiffs had in the things insured, at the time when the defendants assumed the risk for the former. It is not pretended that they were owners, either absolute or sub modo; consequently, as such, they had no insurable
The authority of factors, consignees, and other general agents in relation to property committed to their care, and over which they exercise a qualified ownership, having power to buy, sell, or ship, on account of the real owners, to insure for the latter need not be inquired into in the present case; because, according to the principles already assumed, the plaintiffs cannot be considered as owners, in any shape. Admitting, then, the right and authority of Tayleur, Grimshaw & Sloane, to act for Smith & Son, in effecting the
The persons, who acted in obtaining the policy from the defendants, had no authority to represent the plaintiffs, previously granted; nor was their agency subsequently sanctioned by ratifying and confirming their acts in relation thereto, before the loss of the property insured. We, therefore, consider the contract, so far as the plaintiffs claim any benefit in it directly, to be wholly null and void.
It is readily seen that our opinion in the present case differs to to calo from that of the learned gentlemen of Lloyd’s coffee-house, as disclosed in the testimony of the witness Secretan. The opinions, however, entertained at Lloyd’s, in relation to legal questions, are not, in themselves, entitled to any great consideration; they certainly ought to weigh very light in comparison with such as might be pronounced in Westminster Hall.
Hitherto we have considered the case only in relation to rights claimed • by the plaintiffs, resulting directly from the contract entered into by the defendants, as having been made for the' benefit of the former. But it was contended for them
But if they did, it would not benefit the plaintiffs, for the sixth article of the general conditions of insurances, as established by the Louisiana State Insurance Company, was not complied with, at the time the policy was subscribed; consequently the owners themselves could not have recovered from the last insurers, more than the amount of loss not covered by the assurers in London.
The plaintiffs certainly cannot justly pretend or claim to be subrogated to rights and claims which the owners had not themselves acquired. This proposition is so self-evident that the notice of it might well have been omitted.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court cannot be avoided, reversed and annulled: and it is further ordered, adjudged and decreed, that judgment be here entered for the defendants and appellants, with costs in both courts.