Sorbe v. Merchant's Insurance

6 La. 185 | La. | 1833

Mathews, J.,

delivered the opinion of the court.

This is an action on an open policy of insurance, in which the plaintiffs claim the value of certain goods shipped to them, from Bordeaux in France, to New-Orleans, in pursuance of their contract of assurance, and which goods were lost on the voyage, &c. They obtained judgment in the court below, from which the defendants appealed.

The assurance was effected on goods of a certain description, to the amount of forty thousand dollars, to be shipped from Havre or any port of France, south of it during six months from and after the first day of August, 1832, in any French or American vessel or vessels, &c. The goods for the loss of which reparation is claimed in the present suit, were laden on board a French vessel called the Trinity, which sailed from Bordeaux about the 6th of August. There is no dispute as to many of the important facts of the case, viz: the sailing of the vessel, the value of the goods shipped for account of the plaintiffs, and their loss by a risk insured against.

We find on the record a bill of exceptions to the opinon of the judge a quo, expressed to the jury which tried the cause. In his charge he stated, that in his opinion, the word shipped did not mean as used in the policy, the puting on board or lading, but the despatching of goods and that in case of doubt the contract was to be construed strictly against the person contracting.

It is a matter of doubt from the evidence at what time the property in question, was put on board the vessel; whether on the 30th of July, 1832, the date of the bill of lading, or after the first of August, before which time the captain testifies that he did not sign any bill of lading.

On the part of the defendants, it is contended that the contract of insurance never took effect, in consequence of an implied warranty by the insured, that the goods should not be shipped or put on board the vessel, before the first of August. A philological contest is raised as to the meaningofthe word to ship or shipped. To ship goods at place, means to put them on board of a vessel at the place designated; but the expression to ship goods from a place, does not necessarily imply that they should be laden at the place from where they are to he shipped or carried, they have been put on board at some other place, and shipped from one different. It appears to us, that the word to ship as used in the transportation of merchandise, from one place to another, may signify whether the puling on board of a , , ° , , , vessel or ship, or the carrying of such merchandise on A «/cp voyage between two termini. We arc, therefore, of opinion that the judge below did not err in his charge to the respecting the meaning of the word shipped as used in the present policy. Neither do we beleive he erred, in relation to the opinion expressed as to the mode of interpreting the contract. The word stipulation was used by Roman jurists, to express all kinds of contracts, except such as had a x 7 x x > ticular denomination; it was done by question on answer; the obligation was imposed on himself by the person who answered. In the jurisprudence of France, from which our Civil Code is borrowed, the word stipulation means any engagement or condition, introduced in a contract, &c. See Merlin, Repertoire, Verbo, stipulation.

To goods a‘a atathe°piaoeedesüpatgóodsbfrom tliat they should laden at the place from which t0Tb| ofavefseC onthe S3! mT™ twoac™£ween in case of doubt , construed strictly against the person contracting. Jn a policy of insurance of cer*ain merchandise from a given mnetii\noi’ dr! ought™8 w2ghb S°tho"Ssáiíj»g”f the p«>perty is laden; ®j£0 p^jfe dfic period. spe‘

Tlie contract was made to insure goods to be shipped from Havre, or any port south of it in France, and to be consigned to the insured, during a period of six months ' to commence from the first of August, 1832. This policy stipulates for time and for places where the goods are to x x a carried. According to a fair construction of the contract the ° material circumstance which ought to accept most, is time of the sailing of the vessel on which the property ought to be laden, and this could have taken place so as to bind the insurers at any period, whether six months from the first of August, 1832. And as in our opinion the A did not take effect, until after the first day of the period stipulated; the circumstance of the goods having been put on board a day or two before, admiting it to be true, ought not to have such weight, as to annul the contract or prevent it from producing any effect. Any damage which the merchandise might have sustained previous to the first of August, would not have been embraced by the policy, and the probability of any such damage occuring in so short a period of two days is so remote; unless by some violent convulsion of nature, easily susceptible of proof; that it ought not to be taken into consideration in the discussion of the cause. This case differs from those cited by the counsel for the appellants," when goods were put on board at places different from those stipulated in the policy. In the present instance the policy would have protected goods shipped from any of the ports designated during six months, from the first of August, 1832. To show that the essential and substantial part of the contract, relates to the time of the vessel sailing from the port a quo, and not the time of lading; let it be supposed that merchandise had been put on board in January, 1833, which would be within the limitation of the six months, and the ship had not sailed until some time in February, it certainly could not be pretended that the underwriters would have been responsible for any loss happening in such a voyage.

The defendants in this case respectfully ask for a re-hearing, and that the judgment of Parish Court may be amended, by disallowing interest on the sum recovered from the day of the verdict, no interest having been allowed by the jury, nothing can be added to the verdict of a jury, and no interest either before or after judgment can be given on an unliquidated demand. This question has been settled by repeated decisions of the court, among the number I refer the court to Orleans vs. Denis. 7 JV. S. 225. Blair vs, Kelso. 7 JV. S. 263. Trimble vs. Moore, 2 L. R. 577. Pessas vs. Mendibrown. 4 L. R. 129.

Slidell, for appellants, applied for re-hearing. Strawbridge, contra.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Parish Court be affirmed with costs.

I. By the eighth rule of practice in this court, parties are -1 obliged to file with the clerk a note of their points, and authorities and “no re-hearing can be granted on any point which is neglected, to be furnished in compliance with this rule” 2, Interest is fairly due from the the time the sum was liquidated, and a slight error on one side is as much entitled to protection as in the other, the rule is positive and the re-hearing must be refused.

The motion for a re-hearing was overruled.