Hough v. President of the People's Fire Insurance

| Md. | Jun 20, 1872

Grason, J.,

delivered the opinion of the Court.

At the trial of this qause in tlie Court below, the appellants, for the purpose of showing what goods and merchandize w'ere intended to be covered by the pplicies issued to the'Warehouse Company by the Associated Firemen’s Insurance Company and the Home Insurance Company, offered to prove by the president of the Warehouse Company that, at the time he applied for the insurances, he informed the agents of the insurance companies that he desired to obtain insurance to protect his company from loss or damage, not covered by-policies taken out by those who had deposited cotton or other merchandize in the warehouse, and in which the Warehouse Company had an interest. Upon objection made by the appellees, the evidence was ruled to be inadmissible, and to this ruling the first exception was. taken. When a contract is reduced to writing and is couched in plain and unambiguous language, Courts must look to it alone to find the intention and meaning of the parties, and parol proof is inadmissible. Balto. Fire Ins. Co. vs. Loney, 20 Md., 36; Henderson vs. Mayhew, 2 Gill, 409. There was therefore no error in the ruling of the Court below in this respect.

The appellants then offered to prove, that before the issuing of the policies sued on in this case, and before the deposit of their cotton in the warehouse, they were informed by the Warehouse Company that the latter would not insure the cotton so deposited, but that the appellants must insure for themselves, and that said notice was acquiesced in and not objected to by them, and that they did, thereupon, insure for themselves. This proof was objected to and ruled out by the Court, and this forms the ground of the second exception. We concur in this ruling as the evidence offered was totally irrelevant. Notice from the Warehouse Company that it would not insure cotton, stored in its warehouse and belonging to the appellants, was unnecessary, and could not, in any manner, affect the rights or liabilities of the parties to this suit.

The third exception was taken to the rejection of evidence offered for the purpose of showing what was meant by the insurances of the respective lots of cotton procured by the appellants.

Bernard Hough had testified that it was the habit of the appellants to take out policies on each additional lot of cotton as it came in. He was then asked to explain whether he meant to say that it was the habit of the appellants to effect insurance on each specific lot of cotton, or to effect insurance generally on an additional number of bales equal to the lot deposited. The evidence, sought to be elicited by this question, was intended to show what was the intention and purpose of the appellants in taking insurance, and the effect of the policies taken out by them; and, as we have already stated in considering the first exception, this could only be shown by the terms of the policies which were issued. They constituted the contracts between the parties, and being free from ambiguity, parol evidence was not admissible to explain them.

The appellees’ prayer, which was granted, instructed the jury that there was no proof upon which they could allow damages for any injury by fire to the cotton insured by either of the policies sued on. This prayer assumed that the policies sued on were specific as to the fifteen and thirteen bales respectively, as well as an absence of evidence to show whether the two specific lots so insured were included in the seventy-five 'bales, which sustained partial injury only, and were identified as belonging to the appellants, or whether they were included in the mass which was destroyed. We have no doubt that the policies are specific and not general. The appellants began to deposit cotton in the warehouse mentioned, on the 5th day of February, and continued to deposit, at intervals, until the 15th of July, 1870, only three .days before the fire occurred, and for each lot deposited, received from the Warehouse Company a receijjt, warrant or certificate therefor, which specified the number of bales and the date of the deposit, and also the mark on the bales, the letters X. Q. being marked on each bale deposited by the appellants. These receipts or certificates were all numbered, and that for the fifteen bales deposited on the 20th of June was numbered “1221” and the one for the thirteen bales deposited on the 27th June, was numbered “1238.” Policies of'insurance were at once taken out to cover the particular number of bales deposited, and on their face the loss, if any, is made payable to the Warehouse Company, and the policies and ■warehouse receipts were delivered to the Warehouse Company to secure advances made by it. On the policy on the fifteen bales, dated 21st of June, there is endorsed in pencil the number in figures, “1221,” and on that on the thirteen bales dated 27th of June, also in pencil, “ 1238.” It does not appear in proof by whom these'numbers on the-policies were endorsed, but it seems clear that they were endorsed thereon for the purpose of corresponding with the number of the Warehouse receipts given for the particular cotton insured, so that the same might be more readily identified.

It is also shown that at the time of each deposit, the depositor reserved a sample of the particular lot deposited. All these facts go to show that the intention of the contracting parties was to effect a specific insurance on each particular lot of cotton as it was deposited in the warehouse. But independently of these facts, and looking to the terms of the policies alone, it is manifest that each policy is specific and covers no cotton but the specific bales to which it refers. The amount of the liability of the insurance company is limited in each policy to a specific sum, and the policies bear date on the day, or the day after, the cotton is deposited. Gan it be pretended that a policy issued on the 27th of June, to cover thirteen bales deposited on that day, is to be held to cover thirteen other bales deposited long before, and which had been previously insured, or that the policy issued the 5th of February on thirty-eight bales can be said to apply to the same number of bales deposited in July thereafter, when, for aught we know to the contrary, the appellants had not on the 5th of February a bale beyond the thirty-eight bales first deposited? The true construction of each policy issued is that it covers, and was intended to cover only the specific number of bales in each deposit, and the insurance on which was effected at the time of the deposit; the policy of the 21st of June, 1870, covering only the fifteen bales deposited on the 20th of June, and the policy of the 27th of June the thirteen bales deposited on that day. But while we are of opinion that the policies sued on are specific and not general, we think that there was evidence in the cause to show damage to the cotton deposited in the warehouse on the 20th and 27th of June respectively, and covered by the policies sued on. It is true there is no evidence to show whether this particular cotton was among the seventy-five bales which were identified after the fire, as belonging to the appellants, or was among that which was destroyed;' but the proof leaves no room, for doubt that it was included in one or the other class, and was damaged, if not destroyed.

It was incumbent upon the appellants, in order to recover for a total loss, to show that the cotton insured was wholly destroyed, and having failed to show this, it must be assumed, that it was only partially damaged. Proof was offered that these two lots of cotton were weighed at the ‘time they were stored in the warehouse, the fifteen bales weighing six thousand two hundred and sixty-one pounds, and the thirteen bales five thousand four hundred and eighty-two pounds, making in the aggregate eleven thousand seven hundred and forty-three pounds, and that a fair class of “ low middling ” cotton was worth in the market eighteen and three-quarter cents per pound. It was also proved by Mr. Rhett, that he had examined the several samples of the cotton stored by the appellants in the warehouse, and that they graded from “ good middling” to.“low middling” and “ordinary,” the whole averaging a fair class of “ low middling,” thus showing that the market value of the cotton insured, and injured by the fire, was eighteen and three-quarter cents per pound. Proof of the extent of the damage was also furnished by the list of the sales of the cotton which was partially damaged and identified, so that the extent of the loss of the appellants could have been easily ascertained by the jury. It was therefore error to grant the prayer of the appellees and thus to take the case wholly from the jury.

As we have shown that the policies sued on were specific and not general, it follows that the second and third prayers of the appellants were erroneous, and were properly rejected.

The Court below, having granted the appellees’ prayer, refused the fourth prayer of the appellants as unnecessary. But as we have shown that the appellees’ prayer ought not to have been granted, because there was evidence of loss upon which the jury should have been permitted to pass, the appellants’ fourth prayer ought to have been granted, as it states the correct measure of damages to be recovered.

The appellants’ first prayer asked an instruction that the jury are not to make any abatement from the damages, (if the verdict should be for the plaintiffs) on account of the two policies of insurance by the Home Insurance Company, and the Associated Firemens’ Insurance Company, to the Baltimore Warehouse Company.

The policies in the “ Home ” and “Associated Firemen’s ” companies were taken out by the Baltimore Warehouse Company, while the policies in the company of the appellees were issued to Hough, deadening & Co., loss, if any, payable to the Baltimore Warehouse Company. In the case of The Nat'l Fire Ins. Co. vs. Crane, 16 Md., 293, a policy had been issued to James L. Gray & Bro. against damage by fire to property in Baltimore city, “ the loss, if any, payable to William Crane & Co.,” and the Court of Appeals held that this language was an admission that Crane & Co. had an interest in the contract and were to receive the benefit of it, and that the policy might be regarded as having been, at its inception, assigned to them with the assent of the company. See also Brown vs. The Roger Williams Ins. Co., 5 Rho. Isl. R., 394. In the case before us, the proof shows that the Warehouse Company had advanced to Hough, Clendening & Co. over forty-eight thousand dollars upon the cotton belonging to them and stored in the warehouse, and the Warehouse Company had therefore a lien upon it for such advances, as well as for storage, which constituted an insurable interest in the cotton. The policy in the Associated Firemen’s Company was for ten thousand dollars, and insured the Warehouse Company against loss by fire for one year “ on merchandize generally, hazardous or extra-hazardous, held by them or in trust, contained in that part of No. 2 Warehouse, used by them, &c., to cover whilst on the street¡or pavement around said warehouse.” The policy in the “Home” Company is nearly in the same language, but is for twenty thousand dollars, and “ on merchandize, hazardous or extra-hazardous, their own, held by them in trust, or in which they have an interest or liability.” In the policies to the appellants, as well as to the Warehouse Company, are stipulations that, in case of loss, the insured shall not recover any greater proportion of the loss or damage sustained to the subject insured, than the amount thereby insured shall bear to the whole amount insured.

The law seems to be well settled that a person having goods in his possession as consignee, or on commission, may insure them in his own name, 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. Story on Ag., sec. 111; Ætna Insur. Co. vs. Jackson & Co., 16 B. Munroe, 258; DeForrest vs. Fulton Insur. Co., 1 Hall, 126; Lee vs. Adsit, 37 N. Y. Rep., 90; Waters vs. Assur. Co. 85 E. C. L. Rep., 879; London and North West. R. W. Co. vs. Glyn, 102 E. C. L. Rep., 660; North British Insur. Co. vs. Moffitt, Law Rep. for Jan., 1872, p. 31; Siter, et al. vs. Morrs, 13 Penna. State Rep., 219.

The policies issued to the Warehouse Company by the “Home” and “Associated Firemen’s,” cover not only the property belonging to the Warehouse Company, but also all which was held by it in trust or in which it had an interest. By goods “ held in trust ” are meant goods with which the assured is intrusted; “ not goods held in trust in the strict technical sense — so held that there was only an equitable obligation in the assured, enforcible by a subpoena in chancery — but goods with which they were intrusted, in the ordinary sense of the word.” Waters vs. Assur. Co., 85 Eng. C. L. Rep., 879, It seems clear therefore that the cotton of the appellants was insured by the two policies issued to the Warehouse Company, and that it can recover not only to the extent of its interest in the property insured, but to the extent of the loss, unless the right of recovery to that extent is limited by some provision or condition of the policies. The policies sued on having on their face been made payable to the Warehouse Company, they inured to the benefit of that company, and may be considered as in favor of the same assured, on the same interest in the same subject, and against the same risks, as the policies which were issued directly to the Warehouse Company by the “ Home ” and “Associated Firemen’s ” companies. They are therefore what are termed double policies, (Sloat vs. Royal Ins. Co., 49 Penna. State Rep., 18,) and the insurance companies issuing them aré bound to contribute their respective proportions of the loss. Merrick vs. Germania Fire Insurance Company, 54 Penna. State Rep., 282; Flanders on Fire Insurance, 40; Ætna Fire Insurance Co. vs. Tyler, 16 Wend., 396, 400; Baltimore Fire Insurance Co. vs. Loney, 20 Md., 38. The appellants’ first prayer was therefore properly refused.

(Decided 20th June, 1872.)

As the Court below erred in granting the appellee’s prayer, and in rejecting the fourth prayer of the appellants, the judgment appealed from must be reversed, and a new trial awarded.

Judgment reversed and nevj trial avjarded.