65 A. 637 | Md. | 1907
This is an appeal from a judgment rendered against the appellant, in favor of the appellee, on a policy of marine insurance on a cargo of corn. The case was previously before this Court on the appeal of the Towing Company, when the judgment was reversed and a new trial awarded. Towing Co. v. AssuranceCo.,
1. There are two bills of exceptions in the record — the first presenting the ruling of the lower Court on a question of evidence and the second embracing the rulings on the prayers. Mr. Hilken, a member of the firm of A. Schumacher and Company, agents for the North German Lloyd, was asked whether his firm paid to the Insurance Company of North America the value of this corn, to which he replied; "Yes sir, we were sued for the value of this corn, and we paid the amount." We see no valid objection to the admission of that evidence. The record states it was objected to "because this testimony was not followed up by an offer of the record of the suit under which such payment was made." It is said on behalf of the appellant that unless the record was "produced and showed that it was binding on those who successively made *246
payment one to the other, these other payments were merely voluntary and could not be a loss under defendant's policy," but manifestly this was not correct. In the first place the record of the suit of the Insurance Company of North America against the North German Lloyd would not necessarily show that the plaintiff was bound by the decree in the admiraltv proceeding, as it was not necessary for it to be a party of record. But regardless of that, the Court could not control the order in which the plaintiff offered its proof. "A party cannot offer all his evidence at the same moment; and when he tenders evidence legal and material to the issue, it is the duty of the Court to receive it, and it cannot require him to state in advance what other proof he intends to offer." Patterson v. Crowther
2. In passing on the prayers we will follow the order adopted at the argument by the appellant and will now consider its first prayer which raises the question as to whether there was double insurance. It was to the effect that inasmuch as the corn was covered by a policy of insurance issued by the Insurance Company of North America to I.M. Parr Sons, and said policy was prior in date to that sued on in this case, and that company paid the owners of the corn its full value, therefore under the terms and conditions of this policy the plaintiff was not entitled to recover, under the pleadings.
This policy was issued "To Chesapeake Lighterage and Towing Co., on account of whom it concerns," and it is contended that as such a policy enures to the benefit of the owner there was double insurance. The clause in reference to other insurance is: "That if the said assured shall have made any other insurance upon the property aforesaid, prior in day of date to this policy, then the said Western Assurance Company shall be answerable only for so much as the amount of such prior insurance may be deficient towards fully covering the property insured;" etc. The appellant relies on the case of Fire Insurance Association v. Merchants'and Miners' Trans. Co.,
There can be no doubt that the appellee had an insurable interest in the corn for its own benefit — in order to indemnify itself against a possible liability for loss, as a common carrier. In Phoenix Ins. Co. v. Erie Trans. Co.,
By its second prayer the appellant asked that the jury be instructed to render a verdict for the defendant, because "by the uncontradicted evidence in this case the lighter in which the grain mentioned in the evidence was loaded was unseaworthy *250
at the time of the alleged inception of the risk under the policy sued on in this action." The Court rejected that prayer and submitted the question to the jury, as to whether the scow was seaworthy, and in doing so, there was, in our opinion, no error. The uncontradicted evidence did not show that the scow was unseaworthy, but on the contrary there was considerable testimony to show that she was seaworthy. The superintendent of construction and repairs of appellee's scows testified that the time of the accident "the scow was in perfect order as far as a scow of her age could be." The manager for plaintiff said that she met with an accident the fall before the loss of the corn and "after these repairs she was in first class condition," and other witnesses testified to the same effect. The Captain of the scow at the time of the accident said "she was perfectly in good order; perfectly dry, no water in her." The day before she had carried a load from the elevator at Canton to the H.H. Meier at Locust Point, the unloading of which was not finished until half past ten or eleven o'clock at night. The next morning she was towed over to Canton for another load and her captain and mate testified that "she was all right." After she was loaded she was pulled out to make room for another scow and when at the end of the wharf the line slipped from the bitt, when she got away and drifted out into the stream. No one was aboard of her then but the Captain called a tug which took him to her and he got aboard of her. The mate testified that "when Bennett (the captain) got aboard her she was rolling; this was caused by the passing of the steamboat `Louise' * * * as the `Louise' passed her, the scow was lying broadside to her, drifting up town; the swell from the `Louise' struck her broadside and started her to rolling; witness noticed her until she went over." He also said "it was a pretty fair morning with right smart easterly wind." His evidence, as well as that of others tended to show that the rolling produced by the swell of the "Louise" and the easterly wind caused the corn to shift, thereby upsetting the scow. So without quoting further from the testimony there was evidence *251
which tended to show that she did not sink by reason of her being unseaworthy. It is true there was some from which it could be fairly argued that she was not seaworthy, but it was a question for the jury. In Field v. Ins. Co. of North America,
The defendant's third prayer was also properly refused. It asked the Court to say that as it appeared from the uncontradicted evidence that the loss was occasioned by the capsizing of the lighter without any unusual occurrence to account for the same the presumption was that the lighter was unseaworthy, *252 "and inasmuch as the plaintiff has offered no evidence to rebut this presumption, it is not entitled to recover under the pleadings in this action." From what we have already said, it will be seen that there was, in our opinion, some evidence tending to show that the accident was caused by the rolling of the scow (produced by the wind and the swell made by the Louise) and the consequent shifting of the corn while the scow was adrift which caused it to upset, and this prayer was properly rejected.
The defendant's fourth prayer asked the Court to instruct the jury that the plaintiff had "offered no legally sufficient evidence that the loss of the grain mentioned was caused by reason of any of the perils insured against by the policy sued on in this action," etc. The adventures and perils which the defendant assumed were "of the seas, lakes, rivers, canals, railroad, fires, jettisons, barratry of the master and mariners, and all other perils, losses and misfortunes, occasioned by perils of the sea, that have or shall come to the hurt, detriment or damage of the said goods and merchandise, or any part thereof." There can be no doubt that the actual loss of the corn was sustained by reason of the capsizing of the scow — the only question being as to what occasioned that. In Merchants MutualIns. Co. v. Butler,
The sixth relied on a provision in the policy, that in case the insurance is made for the benefit of a carrier or bailee of *253 the property assured, other than the person named as assured, the company should not be bound to pay any loss, and asked the Court to instruct the jury that the plaintiff was not entitled to recover any amount by it paid to the North German Lloyd or to the Elbarge Company on account of the loss of the grain, as it appeared by the uncontradicted evidence that the North German Lloyd was a common carrier or bailee of said property. There was no liability on this policy to either of those companies, but it does not follow that the appellee could not recover for insurance taken out to indemnify itself against loss. After what we have already said in discussing the first prayer we do not deem it necessary to say more concerning this. It was properly rejected.
The seventh asked the Court to say there was no legally sufficient evidence of any loss payable by the defendant under the terms of its policy, and therefore the plaintiff, under the pleadings was not entitled to recover. The facts proven in the case show that the appellee was liable as carrier to the Elbarge Transfer Company and that it had paid that company for the corn. The appellant offered in evidence the account which was presented to the Insurance Company of North America by I.M. Parr Sons, the receipt of that firm to the Insurance Company for the amount and the policy under which it was paid. The account was for "mixed corn lost in transit on scow 154 between elevator and S.S. `H.H. Meier,'" was dated July 29th, 1899, the date of this loss, and gave the number of bushels and price per bushel together with elevator charges and inspection amounting in all to $2,290.47. Those papers were doubtless offered by the appellant as reflecting upon its defense of double insurance, but they were in evidence for what they were worth and furnished some evidence of the amount of the loss for the corn even if the plaintiff's evidence had been deficient in respect to that. The evidence shows that the corn was a total loss and there being nothing shown which would exempt the carrier, we cannot understand upon what principle this prayer could have been granted. The eighth prayer was not pressed in this Court, but we might add that there was evidence *254 that the plaintiff undertook to carry the grain, and hence it could not have been granted.
In discussing the defendant's prayers we have sufficiently considered the questions presented by those offered by the plaintiff, and granted by the Court, to relieve us of any discussion of them. It is only necessary to say that we find no reversible error in them.
Judgment affirmed, the appellant to pay the costs.