Grossbaum Ceramic Art Syndicate v. German Insurance

Opinion by

Mr. Justice Mestbezat,

These two actions are assumpsit brought by the Grossbaum Ceramic Art Syndicate against the German Insurance Company of Freeport, Illinois, and the Potomac Insurance Company of the District of Columbia, on two preliminary contracts for the insurance of certain ceramic goods which are alleged to have been the property of the plaintiff company, and destroyed by fire at Atlantic City, N. J., on April 3, 1902. The cases involve the same questions and were tried together in the court below. Verdicts were rendered for the defendant companies, and from the judgments entered thereon the plaintiff company has appealed.

There .are two assignments, and they allege error in the charge of the court, that it was partial and inadequate. The contracts sued on were verbal and what are know in insurance parlance as “oral binders. ” Their purpose is to bind or cover the property against loss by fire from the time of the application until a written policy is issued. The plaintiff company alleges that on April 1, 1902, it wired Benswanger & Hast, its brokers, at Pittsburg, to place $5,000 “ floating ” insurance on its goods then at Atlantic City, and that in pursuancé of the message its brokers, on the same day, called on Logue & Brother, the agents of the defendant companies, who accepted a risk of $3,000 for the German company and one of $2,000 for the Potomac company. The plaintiff claims that this was a “ floater ” contract and was to cover the goods wherever they might be, whether in transit, or in hotels, railroad depots or stores. It is conceded that Mr. Hast called at the office of Logue & Brother on April 1, and informed them of his firm’s instructions from the plaintiff company and that a conversation ensued as to-placing the insurance. But it is denied by the .defendants that any contract was entered into at that time, and it is claimed by them that in this conversation Mr. H. A. Logue gave Hast the terms on which they would insure the goods in hotels and railroad depots and that Hast said his company would object to the rate, but he would write that night and advise the company what it would have to do to secure the insurance.

On the trial of the cause, the learned judge said in his charge that “ the main turning point is the question whether there was a contract executed here which bound these insurance companies to pay the insurance. There is no contest as to the amount of the loss, and no contradiction of the testimony showing exactly what the loss was. There is no dispute that proofs of loss were sent. ” As stated by the plaintiff company in its printed brief, “ the sole issue in the case was raised by conflicting testimony as to whether the contracts sued on had been entered into or not. ” This necessarily sent the case to the jury. The adequacy of the charge and its fairness are the only questions raised on this appeal.

We are not convinced that the appellant has convicted the learned trial judge of reversible error on either of the grounds laid in the assignments. We do not think the appellant’s claim of inadequacy in the charge can be sustained. There was but a single question for the jury, and that was whether the insurance companies had entered into the verbal contracts sued upon. The trial judge eliminated all other questions from the consideration of the jury and told them that their verdict would depend solely upon their finding on that question. After instructing them as to the manner of testing the credibility of the witnesses and defining a “ floater ” policy, he presented the claims of the respective parties on the question at issue. He told the jury what the plaintiff company must show to establish its contracts. The testimony on each side was partly written and partly oral, but the judge in his charge did not refer to any part of it, except the letter written by Benswanger & Hast to Grossbaum. After thus directing the attention of the jury to the issue, the claims of the parties, and what the plaintiff was required to show to sustain its contracts, the court said: “ In a general way, and by way of repetition, it is for you to say whether there was a completed contract, completed in the sense that there was no condition attached to it, Completed in the sense that Mr. Logue and Mr. Hast met and talked about it, and agreed that the insurance should be placed, and should be placed in the sense that it was absolutely binding and fixed, and no condition whatever attached to it, and that it covered the goods, in the floater sense, in stores. ” Immediately preceding this part of his charge, the judge said: “ if there is anything counsel would like to have us call the attention of the jury to, we would be glad to do it. ” The appellant’s counsel availed himself of this opportunity and at his request the court gave further instructions to the jury.

We cannot find, under the circumstances, that the charge was inadequate. If the appellant desired fuller instructions and that the attention of the jury should be directed specifically to any part of its testimony, counsel should have responded to the learned judge’s suggestion and requested such detailed instructions as he desired. The charge was already of sufficient length to furnish adequate instructions to the jury, and if the appellant company considered it deficient or lacking in presenting any part of the testimony, the judge’s attention should have been directed to the matter, when, as he suggested, he would have given additional instructions.

Nor can the charge be condemned for unfairness or partiality. . It is true the plaintiff claimed that the contract was closed at the interview between the agents of the respective parties, and that it contained a coinsurance clause, but this was strenuously denied by the defendants. They maintained that the contract was not closed, and that their proposition to insure the plaintiff’s goods was on the condition, yet to be accepted, that the policy should contain a coinsurance clause. It was, therefore, proper, and certainly not unfair, for the judge, in calling attention to the matter to refer to the correspondence between the plaintiff and its brokers, which bore directly on the question. This is what he did, and we do not sqe that his manner in presenting it to the jury was misleading or had any tendency to give any undue weight to it against the plaintiff. There is certainly nothing in the record or verdict that leads to such a conclusion. While the jury might have interpreted this correspondence as the plaintiff does, they certainly could not be convicted of clear error in sustaining the defendants’ construction of it, that, at the close of the interview between Hast and Logue, the proposed contract needed the confirmation of the plaintiff company to complete it. Whatever may have been the necessity for speedy action in securing the insurance, as suggested by the appellant’s counsel, the telegram and letter of Benswanger & Hast to the plaintiff are strongly corroborative, if not conclusive, in support of the defendants’ position that the contract was open and “ subject to conditions ” which required the acceptance of the plaintiff to complete it. It might have been error for the learned judge to have failed to advert to this correspondence in his charge, but it was unquestionably neither error nor unfairness for him to direct the jury to consider it in determining the question whether the contract between the parties had been fully completed.

The charge is not justly open to the objection that it is argumentative in favor of the defendants. In referring to the letter written to Grossbaum, the court did not, as claimed by the appellant, ignore the testimony of Benswanger and Hast. That testimony was before the jury and was commented on by counsel, and hence whatever support it gave to the existence of the alleged contract was presumably given due weight by the jury.

It was not error for the court to charge the jury that the plaintiff could not recover unless the contract included stores, nor did the court in adverting to stores raise an issue not in the ease, as contended by appellant’s counsel. The plaintiff claimed that there was a contract and that it covered goods in stores as well as those in hotels and railroad depots. The defendants not only denied the existence of a contract, but alleged, and introduced testimony to show, that in the conversation in which it was claimed the contract had been entered into, their agent had agreed to accept the risk on goods only in railroad depots and hotels on the condition that the plaintiff would carry full coinsurance. It was, therefore, contended by the defendants that if there was a contract it covered goods only in hotels and railroad depots and not those in a store where the plaintiff’s goods were alleged to have been when they were destroyed. Hence, it was not error for the court to tell the jury that to entitle the plaintiff company to recover, it was required to show a “floating” contract which covered goods in stores.

'The assignments of error are overruled and the judgment is affirmed.