138 N.Y. 16 | NY | 1893
The plaintiff sought to recover upon an open policy or contract of re-insurance made by defendant and two other compames in which they assumed certain obligations that are now in dispute, and hound themselves “ severally and not jointly, nor the one for the other, to the assured.”
The plaintiff had issued in each case an open policy of insurance to Twombly & Co., The X. Y. Lighterage & Transportation Company and John H. Starin, on account of whom it may concern, bearing date respectively September 1, 1881,
“At and from point or points in the harbor of New York as far south as the Narrows, and the inland waters of New Jersey, adjacent and tributary thereto, and on the North river as far as Piermont, and the East river as far as Throgg’s Neck. * * *
“ The said loss or damage to be estimated according to the true and actual cash value on the day of the disaster.”
On March 17, 1885, merchandise on board the lighter “ Chase ” was indorsed by Twombly & Co. for the amount to be insured of $16,000 in the book referred to in their policy, and the same was reported by them to the plaintiff at the time required. The cargo was lost by perils covered by the policy, and the loss adjusted upon the basis of the actual cash value of the cargo on the day of the disaster in the sum of $12,058.48.
On the 19th of March, 1885, merchandise on board the barge James W. Eaton was indorsed by the N. Y. Lighterage and Transportation Company, for the amount to be insured of $15,900, in the book referred to in their policy, and the same was reported by it to the plaintiff at the time required and in conformity with the contract. The cargo was .lost by perils within the policy, and the amount adjusted upon the actual cash value of the cargo on the date of the disaster at $12,451.26. On October 7,1885, goods on board the lighter 'Wa/rren were indorsed by John LI. Starinin the book referred to in the policy, for the amount to be insured of $16,000, and the same duly reported to the plaintiff, x There was a loss upon the goods included in this cargo which was subsequently
“ The said loss or damage to be estimated according to the true and actual cash value on the day of the disaster.”
The true meaning and construction of the following indorsement made upon this policy and bearing date February 2, 1885, raises the only question presented by this appeal.
“ On and after this date this policy covers the Continental "Insurance Company as re-insurance to the extent of one-half of the amount of each and every risk which equals or exceeds in value the sum of $15,000, and which the said Continental Insurance Company may have on cargo of any one barge or lighter and insured by them under their open policies issued to the following-named persons, viz.: Twombly and Company, John H. Starin, Hew York Lighterage and Transportation Company. "x" * *
“ On cargoes of the value of $50,000 and upwards, this policy is to cover the excess of $25,000, not exceeding the sum of $50,000 on any one cargo.
“JOHH HEWMAH, Agent”
The defendant’s contention is, that as the value of the several cargoes which were lost proved, in each case, upon the adjustment, to be less than $15,000, the loss is not covered by
When the parties spoke of risks that equaled or exceeded $15,000, they meant to designate such risks as the plaintiff might have upon goods, upon the lighters named, that were entered or written for that amount or more, and they did not intend that the existence of a contract of re-insurance was to depend upon the constantly fluctuating value of the goods, the notions of an adjuster as to value, or the judgment of a court or jury. They intended that the obligations of the defendant should be complete and perfect when the goods were entered for insurance, and not that the existence of any contract whatever should be left to depend upon the extent of the loss or the actual value, after the disaster, against the possibility of which the plaintiff was seeking to protect itself. The intention might have been.expressed with more particularity and with greater precision and made so plain that no controversy as to the meaning could ever arise. But we know that the multifarious transactions of business men are not always preceded by carefully and accurately measuring and weighing their words, nor are their ordinary agreements or contracts always drawn by persons skilled in the use of language. In the vast majority of such cases no controversy ever arises, and in the exceptional cases, in which courts are called upon to settle the dispute, they should give to such instruments a reasonable and sensible construction, and which appears to conform the nearest to the justice of the case and the end which the parties sought to accomplish, but which, from inadvertence or the poverty of language, they have failed to exjiress fully and accurately. In this case the contract is clear enough, except that the parties, m defining the class of risks to be covered by the re-insurance, used an expression which perhaps left some room for controversy as to whether the entered or actual value of the cargo ivas intended. But we think that the real inten
The judgment should, therefore, be reversed and a new trial granted, costs to abide the event.
All concur.
Judgment reversed.