170 F. 179 | 3rd Cir. | 1909
Lead Opinion
The plaintiff sued to recover the insurance on a quantity of cotton destroyed by fire while stored in certain warehouses in Brooklyn, N. Y. The fire occurred on June 8,. :l 905, breaking out in the morning, and, while it was under control by (> o’clock of the same day, it burned actively for several days after-wards, and the cotton could not be got at or removed for nearly a week. The policy limits the liability of the company to the actual cash value of the property insured at the time the loss-or damage occurs, according to which such loss is to be ascertained and estimated. A jury being dispensed with, the court found as a fact that the fire started on June 8tli, at 8:55 a. m., but that the damage to the cotton was not done until a later hour (just when is not specified); and (evidence having been admitted,, over the defendant’s objection, of the selling price of cotton on the day of the fire) that the actual cash value at the time when the loss or damage occurred was 8.55 cents a pound. The contention here is that the cotton should have been valued according
The actual cash value of the property insured when the loss occurred was a question of fact for the court to pass upon. But assuming that the time to which this is to be referred is a question of law, the rule that the loss has occurred within the meaning of the policy, as soon as the fire breaks out, is more or less arbitrary, and can only be adopted as a matter of necessity, not merely of convenience or policy. It is pressed upon us, however, by considerations of alleged necessity. The contract of insurance, it is urged, is one of indemnity, and the situation has therefore to be looked to. In the present instance, for example, the exact time when the fire reached the cotton, as it is said, is purely conjectural, as it must be in many similar cases. And smoldering along as it did for several days, just when the damage was done, and the loss was complete, cannot be fixed with any certainty. Meantime, the quantity destroyed being large — some 40,000 bales out of a total of 127,000 at the port of New York — the market rose sharply. And the holder of a commodity like cotton having to protect himself against a fall in the price by selling “short,” and being forced into the market by the fire to protect his contracts, and the insurance company being also compelled to buy on account of its policy, the market price at which it has to settle the loss is unduly enhanced, to its serious detriment, the fire being thus both the occasion oRthe loss and the means of aggravating it, unless, as it is claimed,. it can be referred, as it should be, as a matter of justice, to a time when the fire first broke out, before it was subjected to these adventitious circumstances. The invariable practice in insurance circles in the case of a continuing fire, as we are further told, 'is to adjust the loss with reference to the time of its outbreak. And in line with this also, as it is pointed out, where a fire starts just as a policy is about to expire, say 11:55 a. m., the policy running out at 12 noon, even though by far the greater part of the destruction takes place afterwards, beyond the actual term of the policy, yet the loss is regarded as having occurred within the life ,of it, and the company held liable accordingly. May, Fire Ins. § 401; Rochester German Ins. Co. v. Peaslee Gaulbert Co., 120 Ky. 752, 87 S. W. 1115, 89 S. W. 3, 1 L. R. A. (N. S.) 364; Jones v. German Ins. Co., 110 Iowa, 75, 81 N. W. 188, 46 L. R. A. 860.
But without denying the force of some of the considerations which are so urged, and however properly a policy is held to cover a loss to the risk of which the. property insured is initially exposed during its life, although, not fully consummated until afterwards, we do not see
The judgment is affirmed.
Rehearing
On Petition for Reargument.
The only thing that requires notice in the petition for a reargument is the suggestion that there is no evidence that the value of the cotton at the time the loss occurred, as found by the court below, was 8.55 cents a pound. It is a question whether there is any assignment of error which covers this; but, passing that by, the contention has no merit. The value so taken was the price of “spot” cotton the day of the fire, as fixed by the committee of the Cotton Exchange, from actual sales made at different calls of the market, which is clearly sufficient. It is true that the price the previous day was 8.40 cents, and the fire broke out before the market had opened. But we have rejected the idea that the price at the time the fire started, which was pressed upon us as an arbitrary rule on considerations of expediency, was the one to be followed; and, while the fire began at 8:55 in the morning, it did not reach the cotton, according to the evidence, until later, and, being under control at 6 p. m., the damage was probably done somewhere between those hours, which would bring it within the market day, the ruling price for which was thus not improperly taken.
The petition for a reargument is dismissed.