66 Md. 339 | Md. | 1887
delivered the opinion of the Court.
This appeal is from a judgment for $47|77.49, recovered hy the appellee against the appellant in an action on an insurance policy, issued hy the latter to the former on the 1st of November, 1883. The case was tried before the Court without a jury, and two exceptions were taken, one to the admissibility of evidence, and the other to rulings upon propositions of law. Of the two main questions which these exceptions present for review, one goes to the right of recovery to any extent, and the other raises the
The written part of the policy is that the Eire Association “ in consideration of $30, to them paid by the insured hereinafter named, the receipt whereof is hereby acknowledged, do insure, the Merchants and Miners Transportation Company, for account of toliom it may concern, against loss or damage by fire to the amount of $5000, on merchandise, being chiefly cotton in bales, its own, or in its care or custody as carriers, and for the amount of earned freight and charges, if any, thereon, stored in the frame metal roof freight shed of the Norfolk and Western Railroad Company, situate nearest the water front of its wharf and dock, at the lower end of Main street, in Norfolk, "Virginia, and marked No. 1 on diagram; loss, if any, payable to Geo. J. Appold, Treasurer Merchants and Miners'Transportation Company, for account of whom it may concern. Other insurance permitted.” By the printed terms immediately following the insurer agrees “to make good unto the said assured, their successors, executors, administrators and assigns, all such immediate loss or damage, not exceeding in amount the sum or sums insured as above specified, nor the interest of the assured in the property, except as herein provided, as shall happen by fire to the property so specified, from the 31st day of October, 1883, to the 31st day of December, 1883; the amount of loss or damage to be estimated according to the actual cash value of the property, and to he paid sixty days after due notice and proofs of the same shall have been made by the assured and received at the office of the company in Philadelphia.” It is not necessary to state, at present, any of the other provisions or conditions of this instrument.
The circumstances which led to this insurance are substantially as follows: The Merchants and Miners Transportation Company is a common carrier by water, and in
1st. Upon these facts the question arises can the suit be maintained ? In our opinion it can, and we shall state briefly the grounds of that opinion. It has been decided by this Court, and upon abundant authority, that a person having goods in his possession as consignee, or on commission, may insure them in his own name, and for their full value, and in the event of loss, recover the full amount of the insurance, and after satisfying his own claim hold the balance as trustee for the owner. Hough, Clendening & Co. vs. Peoples’ Fire Ins. Co., 36 Md., 432. The law as thus stated is, of course, based upon the assumption that the assured had an insurable interest in the property at the time of the insurance, and we are inclined to the opinion that this transportation company had such interest, at least in respect to “charges” and freight expected to he earned, notwithstanding it had no pecuniary interest in or ownership of the cotton itself, .and was not liable over for its loss by fire. But however that may he, the law goes further, and it is now well settled that where a person has the custody, care or possession of property for another and bears the relation to it of consignee, carrier, factor, warehouseman or bailee, he may, though he has no pecuniary interest therein and is not responsible for its
But counsel for the appellant contend that by the terms of this policy the obligation of the insurer to' make good the loss insured against is expressly limited to the interest of the assured. The argument in support of this position is ingenious, and is founded upon what counsel insist is the true grammatical construction of that part of the printed portion of the policy above quoted. . According to this construction they contend that the terms “ except as herein provided ” refer to the “loss or damage,” in the previous part of the sentence, and that their office is simply to exclude therefrom such loss as by subsequent conditions the insurer was exempted from paying, and that they in no wise modify the preceding terms which limit the amount to be paid to a sum “not exceeding the interest of the insured in the property.” But this reading would, as it seems to us, be in conflict with the intention of the parties as expressed in the loritten part of the instrument, and we have already said that this part read in connection with the surrounding .circumstances, manifests an intention to insure more than the mere interest of the insured carrier. There is ample authority, as well as good sense, for the position that where the written and printed portions of a policy conflict, effect must be given - to the former, because being incorporated into the contract at the time it was made, it is - presumed that it expresses the actual agreement of the parties, and that they intended thereby to override that portion of the contract expressed in type which is inconsistent therewith. 1 Wood on Ins., (2nd Ed.,) sec. 58. But it is not necessary in this case, to
We regard this policy as an insurance upon specific goods stored in a specified place, under which the interest of the owners, if properly asserted, can he protected. If therefore a jury, or'a Court acting as a jury, should find in their favor the facts which we have said must, under the proof in this record, he left to such finding, the action can be maintained; and from this it follows that the Court below was right in rejecting the defendant’s first and seventh propositions or prayers. We are also further of •opinion that, under the circumstances disclosed in the record, the plaintiff was in no default in furnishing the preliminary proofs of loss, and that there was evidence in -the case which afforded sufficient means of determining the amount, if any, the plaintiff was entitled to recover-. 'There was consequently no error in the rejection of the defendant’s second and tenth prayers.
“ In case of any other insurance upon the property hereby insured, whether made prior or subsequent to the date of this policy, the assured shall be entitled to recover of this company no greater proportion of the loss sustained than the sum hereby insured bears to the whole amount insured thereon ; and it is hereby declared and agreed that in case of the assured holding any other policy in this or any other company on the property insured, subject to the conditions of average, this policy shall be subject to average in like manner. Any floating policy attaching, in whole or in part, to the property covered by this policy, shall, as between the assured and this company, be considered as contributing insurance for the full amount of such policy, and liable as such to pay pro rata any loss, total or partial, on the property hereby insured.”
The latter paragraph seems to have been framed to meet precisely such a case as the present. As we read it the stipulation is plain that any floating policy attaching to the property, whether effected by the assured, or the owner, or any other party interested, shall as between the insured and insurer under this policy, be brought under the rule of contribution. In this case the owners had such floating policies which purported to cover this cotton, and whether they attached to it depends, -so far as the parties to this suit are'concerned, upon the construction they are to receive by this Court on this appeal. We do not agree in opinion with the learned Judge of the Superior Court, that it was not proper for him to determine the construction of these policies because the companies
They are thirteen in number, and were issued hy four different companies. There are some features common to all of them, and it may he said generally that they all insure cotton against loss hy fire from any place of purchase in any southern State, hy any route to the mills of the owners in the New England States. They also contain stipulations accepting a risk of fire on those for a certain number of days before shipment. As illustrating this, we take the policy of the Phoenix Insurance Company, insuring the Whittenton Manufacturing Company of Taunton, Mass., where the provision is : “also to cover the risk of fire on shore for ten days prior to shipment.” A literal reading of this stipulation would make it not only ineffectual but nonsensical, for cotton destroyed hy fire cannot afterwards he shipped. The evident meaning of it, however, is that if the cotton is burned while on shore and aioaiting shipment, and the loss occurs within ten days after the insurance upon it is effected, then the policy covers the loss, but if the fire occurs after the lapse of such ten days then the risk does not attach. In this particular case the insurance was from Norfolk to Taunton, and the cotton had been for some time stored in the freight shed awaiting shipment. The insurance upon it was effected on the 7th of November, and the fire occurred on the 14th of the same month,,less than ten days thereafter, and it seems to us too plain for argument that the loss is covered
Such being our construction of these policies, we entertain no doubt but that they are contributing insurances within the meaning of the seventh condition of the policy in suit. In our opinion, therefore, there was error in granting the plaintiff’s eight prayers which deny the defendant’s right to such contribution, as well as in rejecting the defendant’s fourth prayer which asserts that right. Being of opinion that this is a case in which there must be such contribution, provided the plaintiff shall eventually succeed in maintaining the action and in recovering, we approve the rejection of the defendant’s eighth prayer which throws the whole loss upon the marine policies.
We are also further of opinion that the Court below committed an error in admitting in evidence the contract referred to in the first exception. It is an agreement executed after this suit was brought, and to which the defendant is not a party. It seems to us to be clearly res inter alios, and inadmissible.
Judgment reversed, and neio trial atoarded.