Adams v. Pittsburg Insurance

Mr. Justice Gordon

delivered the opinion of the court, November 16th 1874.

The court below permitted the defendant, part owner of the steamboat Glasgow, to be charged with the amount of a premium-note, executed to the plaintiff by the captain, under the direction of another part owner, for the insurance of the boat. This insurance was made and the note given without the knowledge or consent of the defendant. It is conceded that under ordinary circumstances this could not be done. But the plaintiff was permitted to go to the jury on evidence of a custom or usage of the port of Pittsburg, warranting the captain thus to bind the owners of vessels navigating the Ohio and its tributaries. It is possible that a usage such as this, though derogatory of the rights of such owners, and not required for the advancement of commerce and trade, might he established by proper proof.

But in order to establish such custom, the evidence by which it is proposed to prove it, must be clear, uncontradictory and distinct. Custom is usage so long established and so well known as to have acquired the force of law. It is obvious, therefore, that a custom not only can, but must be so proved as to leave no doubt upon the mind with reference to its nature and character.

Doubt must.be wholly eliminated from the evidence adduced, or the usage is not well proved. In view of these principles, we cannot agree that the evidence in this case was such as the court should have submitted to the jury for the purpose proposed. Four witnesses gave their evidence upon this subject. One testifies that the custom is for an owner and the captain to insure for all the owners; the captain signing the premium-note. Another states simply that it was customary for the captain to execute the note, but whether .under authority of one or all of the owners he does not say. The third, that it was customary for the captain to insure for the boat and owners, but adds upon cross-examination that he knew of no case where the captain was not directed by the owner. The fourth, that it was the custom for the captain to insure for the owners, as in this case. From this testimony it is impossible to say what the custom or usage is, if indeed any such exists. Has the captain power upon his own motion to insure, or does it require the joint action of a part owner and the captain ? May he insure the boat when there is but a single owner, or is he confined to cases where there are several joint owners?

These are questions which are legitimately raised from the evidence ; and as that evidence does not clearly and definitely answer either of them, the court'should notiiave permitted it to go to the jury.

The judgment is reversed, and a venire facias de novo awarded.