106 Ga. 538 | Ga. | 1899
Before undertaking to deal with the several assignments of error presented by the bill of exceptions in this case, it is proper to set forth a statement of some of the leading facts disclosed by the record, which will serve both to explain the nature of the controversy and to indicate the relevancy and materiality of the questions upon which rulings are invoked. Paterson, Downing & Company, of New York City, were engaged in buying and exporting naval stores. They had agents, or business connections, at nearly all of the South Atlantic and Gulf ports, including Brunswick, Ga., through whom rosin and turpentine were purchased at inland points, transported by rail to these ports, and then loaded on vessels for export. Desiring protection against possible losses by fire, Paterson, Downing & Company, during the fall of 1895, applied to the Thames & Mersey Marine Insurance Company and the Corporation of the London Assurance for insurance to the amount of $50,000, which should cover all naval stores subsequently purchased, not only whilst stored in warehouses at these several ports awaiting export, but also whilst in transit from inland points to the coast. The company first named undertook to carry two-fifths, and the latter company three-fifths, of the insurance applied for, and accordingly each issued what is commonly known as an “ open ” policy, dated October. 12, 1895, the purpose of which was to enable the insured, by simply reporting a shipment from a given point and agreeing upon the rate of premium, to immediately bring within the protection of the policy any particular consignment they might wish to be covered thereby. Later, the insured applied to the Corporation of the London Assurance for additional insurance, to cover all naval stores while located at certain designated ports, the value of which should be in excess of the $50,000 for which they were, as above stated, al
(a) Recognizing the soundness of this conclusion, counsel for the insurance company in effect contend that as the policy issued on October 12 provided that the insurance thereby effected/was “to cover three-fifths interest in all goods” therein designated, in an amount not exceeding $30,000, a proper construction of the endorsement of December 18 would limit the company’s liability thereunder to “three fifths of the $50,000 excess insurance” provided for. We can not assent to this proposition. The amount and extent of the new insurance contemplated was specifically fixed by the endorsement in question, as was also the precise subject-matter thereof. In these respects, the additional insurance was not to be identical with the contract previously entered into. That is to say, the company in the first instance undertook to carry only three fifths of the $50,000 risk offered to it and the Thames & Mersey company; but when applied to thereafter, agreed to accept -and carry the whole risk incident to the additional insurance of $50,000 which the insured desired to place on the property because its value was far in excess of the amount for which insurance had previously been procured. But even were this endorsement less definite in its terms, and susceptible of a different construction, the dealings between the parties pursuant thereto show beyond any question what they understood its meaning to be. Each of the several notices thereafter given by the insured, and accepted by the company, called upon it “to enter on open policy of Paterson, Downing & Co., No. 610, $50,000 on naval stores on excess of $50,000 located at Brunswick”; so, regardless of what the company by the proposal ■evidenced by the endorsement of December 18 intended to offer to do, it. subsequently, as matter of fact, actually granted the insured additional insurance to the full extent asked, viz. $50,000, and in each instance fixed the premium on that -amount at “1/10 net.”
(5) In this connection, complaint is also made that the au
"We may add that we have not been cited to any case which sustains the contention upon which the plaintiff in error so earnestly insists. Indeed, all the authorities with which we have met during the course of our investigation of the question presented look unmistakably the other way. Alluding to the case of Seamans v. Loring, 1 Mason, 128, Mr. Phillips, in the second volume of his work on Insurance, § 1252, announces that: “It has been held that the clause as to a prior-
The effective simplicity of this argument appeals to us irresistibly, and the conclusion reached is, in our opinion, entirely satisfactory. It would, of course, be perfectly proper for an insurance company to stipulate that the test for determining what was or was not insurance “prior in day of date” should be^ •the actual date upon which an open policy issued by it really became effective by the acceptance thereunder of a definite risk. However, the stipulation known as “the American clause” obviously does not even remotely suggest such a test, but distinctly provides that the company shall be exonerated from liability only as regards “other assurance upon the premises aforesaid, prior in day of date to this -policy," — evidently referring to the instrument setting forth its proposal, not to the various contracts of insurance to be made in the future, from time to time, and evidenced by separate endorsements thereon. “ Policy, or, more fully, policy of assurance or insurance, is the name by which the formal written instrument in which the contract of insurance is usually embodied is known.” 2 Abbott’s Law Die. 286. We accept as true the statement made in the brief of counsel for the company that: “An open policy may effect no insurance and embrace no risk at the date of its issue. It looks to the future and successive dates. Unlike the standard form, which in all its terms relates to effecting present insurance of a defined subject-matter, open policies are merely promises to insure.” Still, this presents no reason why the date of the instrument, or any other purely arbitrary date, can not be agreed upon between the insurer and insured as the time from which other policies are to be treated as subsequent. For instance, the date agreed upon might be Washington’s birthday, or some other legal holiday, occurring in either a past, the current, or a future year; and this express stipulation would be binding upon the parties themselves, though not, of course, upon third persons not assenting to such an arbitrary arrangement. Indeed, a company might agree that no insurance
To hold otherwise than we do in the present case would surety lead to absurd results. For illustration, suppose two open policies, each containing “the American clause,” were simultaneously issued on a given date by different companies, with a view to insuring the same property. In the event a particular risk was reported and endorsed upon one the following day, but a week or more elapsed before this risk became covered by the other, could not the company issuing the policy last referred to fairly claim the insurance effected under the other policy was “prior in day of date to” its policy? If so, occasion would soon arise, in the course of numerous like transactions, which would warrant a similar claim on the part of the other company, and so on indefinitely, one company hav
Judgment affirmed.