Allegre's Adm'rs v. Maryland Insurance , 2 G. & J. 136 ( 1830 )

Dorsey, J.

delivered the opinion of the Court.

The first exception presents the question, does that part of the order for insurance, which speaks of the time of the sailing of the Eugene, amount to a representation ? The inquiry is simply this ; is Allegre to be understood as asserting a fact or expressing an expectation or belief,, founded on facts of which he had knowledge ? Give to this order a literal interpretation, and it may well be regarded as the assurance or statement of the fact, that the brig would' sail’ some time during the month of May. But instruments or contracts of this kind are to be liberally construed, and; with reference not only to the situation and circumstances-of the subject matter of insurance, but also of the parties by whom the insurance is effected. There is nothing in the proof, presented by the record in this cause, to shew that the risk would have been increased by the departure of the vessel in July, instead of May. Had it been so regarded by the underwriters, it is probable that the time of sailing, would have formed one of the stipulations in the policy. In the absence then of any inducement to make a representation of such a character as that insisted on by the appellees : when too, the distance of the port of departure from the place of insurance, was so great as to render it most improbable, if not morally impossible, that the assured could know the precise time of sailing, would it not be more rational, more equitable, to regard the expressions of the insured, rather as the emphatic, confident statement of a matter of opinion or calculation, than as a representation in its technical sense. If this order for insurance under the circumstances in which it was drawn, will bear two interpretations, according to the case of Livingston and Gilchrist vs. The Maryland Insurance Company, 7 Cranch, 536, “ the insurers ought to have asked an explanation and not substitute their own conjectures for an alleged representation.” If the insurers, in this case, intended to exact a literal compliance with the statement of the time of sail» ing in the offer for insurance, they should have made it the subject of a warranty, or have informed Allegre that they relied on it as a representation. Had the statement been, that the vessel had sailed; and it were a fact of which its knowledge could be imputed to the insured, it might perhaps be regarded as a representation. Rut in this case a future event is spoken of, in its nature contingent, and of which the party speaking could not possibly possess any certain knowledge. As supporting the view here taken of this subject. Phil. Ins. 83, 84. Christie vs. Secretan, 8 T. R. 192. Hubbard vs. Gover, 3 Campb. 312. Bowden vs. Vaughan, 10 East 415. Brice vs. Featherstone, 4 Taunt. 869. and Jendivine vs. Slade, 2 Esp. R. 572, may be referred to. Also the very strong case of Rice and others vs. The New England Marine Ins. Com. 4 Pick. Rep. 439, where Chief Justice Parker, in delivering the opinion of the Court, emphatically states: “We think that the statement of the day on which a vessel will sail, is substantially nothing more than stating an- expectation that she will sail on that day.” “ The most positive intentions to sail on any future day, amount only to a strong expectation, for it must depend on the elements and other causes affecting the sailing of vessels, whether such intention shall be executed or not. And if the time of sailing be material to the risk, the insurer would be as likely to require a warranty, that the vessel would sail or had sailed on the day proposed, if it were stated positively, as if stated only as an expectation.”

In -opposition to the above references must perhaps be regarded the case of Dennistown and others vs. Little and others, recently decided on appeal to the House of Lords, and reported in 3 Bligh, 202. Rut of this case it may be said, that the grounds of the decision are unsatisfactory, and indistinctly stated: and that viewing it even in the light of conclusive authority in this case as to the question adjudicated, it is by no means decisive of the point now under consideration, as presented by the facts in this record. In that case the statement was, the Brilliant will sail on the 1st of May: the fact was that she had sailed on the 23d of April, preceding, and was at that time a “ missing vessel.” The assured there appeared as owner as well of the vessel as of the cargo, both being covered under the same policy. And upon this last ground the Lord Chancellor mainly rests his opinion : and draws the distinction between the case before him, and that of Bowden vs. Vaughan, the decision in which he recognizes and sanctions. In the case before us, the policy was solely on the cargo; and the underwriters had no reason to presume, that the owner of the cargo had any interest in or control over the vessel. The question now to be settled, therefore stands unaffected by the decision in 3 Bligh.

The order for insurance as regards the time of sailing being deemed no representation, the instruction of the Court to the jury, in the appellants first bill of exceptions, was wrong upon two grounds. First, because it was wholly immaterial to the issue in the cause whether the risk were materially increased or not, by the sailing of the brig at a different time from that stated in the order for insurance, such statement being no representation. Secondly, because the Court submitted it to the jury, to find the fact, that the risk had been materially increased, when no testimony whatever had been adduced on that subject, to warrant the jury in drawing such a conclusion.

To the opinion of the Court, in the appellants second bill of exceptions, but little opposition was made in the argument, and to the admissibility of the testimony there offered, we are aware of no well founded objection.

We concur with the County Court in their refusal of the prayers of the appellants, set forth in their third bill of exceptions. If proof of facts were requisite to demonstrate the far greater perils, to which a live cargo is exposed in a sea voyage than a dead cargo; the result of the adventure in controversy, and the testimony given in this cause, are most conclusive; 106 mules and 4 jackasses were shipped on board the Eugene. By tempestuous weather, which to a dead cargo would have occasioned no injury, 94 mules and all the jackasses were destroyed. On board the British brig Palmyra, 170 or 180 mules were laden, on a voyage from La Plata to Havana: on her arrival at the port of destination, but 33 were alive; 4 or 5 of which soon after died: a common cargo exposed to such perils would in all probability have escaped uninjured. In transporting, a cargo of live stock, a great portion of it is stowed upon deck, and consequently subjected to casualties, from which a cargo under hatches is wholly exempt. Indeed so much [ greater are the estimated risks to goods on deck, than to . those in the hold, that double the premium of insurance is demanded for the former, that there is for the latter: And on account of this great diversity in the amount of premium, a policy, on “ cargo,” or “ goods and merchandize,” will not cover articles which are stowed upon deck. If the vessel be wrecked or stranded, the chance of saving a dead cargo, is far greater than that of saving a live ■ cargo. In fact, the disadvantages to the assurer attendant on the latter risk, which are not incident to the former, are so numerous and obvious that they need not be enumerated. In compacts then of which good faith and fair dealing are the very essence; where it is said to be the duty of the assured to communicate “ every fact and circumstance which can ■possibly influence the mind of any prudent and intelligent insurer, in determining whether he will underwrite the policy at all, or at what premium he will underwrite it,” ought not the insured to be informed of it, where live stock are the subject of insurance? There is no rule of law or decision of any Court of this State or elsewhere, as far as our researches have extended, which excuses the insured from making such a communication: commercial policy enjoins it; justice demands it; as far as the testimony in this case goes, the usages of underwriters require it, and the highest judicial tribunal in a sister State, hath adjudged it to be indispensable. Should we then hesitate to adopt it? An uniformity of decision among the several States of the Union, on subjects of this nature, is of vast importance to the mercantile community; and that consideration alone, in the absence of all motive or obligation to embrace a contrary doctrine, should induce us to sanction the principle established in one of the most enlightened and commercial States in the Union, that a policy on cargo, goods or merchandize, will not cover live stock. The adjudication alluded to, is reported in 4 Pick. Rep. 429. Talcot Woolcol et al. vs. Eagle Insurance Company. If it had been in proof that mules or live stock were the only articles of exportation from La Plata to Martinico and the Havana, this would give a new aspect to the case. It would not then be necessary for the insured to notify the insurer of the character of the cargo. That fact having already been made known to him from the nature of the trade, of which the law presumes him to have knowledge. These remarks are made, as applicable to the prayers of the appellants, and with reference to the general principles of the law of insurance, not upon the rights of the appellants resting upon any usage of trade prevailing in the city of Baltimore.

Having approved of the Court’s refusal to grant the two instructions asked for in this third bill of exceptions, it remains to be considered whether there be any error in the opinion delivered by the Court, of which the appellants have cause to complain. That there is, to us appears obvious. The Court undertook to determine the question of fact, that the appellants were guilty of a concealment lata! to the policy, provided the jury believe that the risk was. materially increased by the cargo being of mules, instead, of a dead cargo, “and that this material increase of risk, was the only question open for the consideration of the jury.” In doing so, they threw out of the case the testimony offered by the appellants, “that the term cargo, in the aforesaid order for insurance, would, according to the mercantile understanding and usage of trade among the insurers, and merchants of Baltimore, be considered as covering mules and jackasses;” thus, in effect, determining a controverted matter of fact, of the truth of which contradictory evidence had been offered. If the facts had been left to the jury, as they ought to have been, and they had found that there did exist such a mercantile understanding and usage of trade in Baltimore, upon the whole evidence offered in the cause, it was competent for the jury to have rendered a verdict for the appellants, notwithstanding the shipment of mules materially increased the risk which would have been incident to a dead cargo.

We concur with the County Court in their opinion in the appellants second bill of exceptions, but dissent from their opinions in the first and third exceptions’

JUDGMENT REVERSED AND PROCEDENDO AWARDED.