American Insurance Co. v. Insley

• Decision Date: 25 January 1847
• Citation: 7 Pa. 223
• Court: Pennsylvania Supreme Court
• Parties: AMERICAN INSURANCE COMPANY <I>v.</I> INSLEY.

7 Pa. 223

AMERICAN INSURANCE COMPANY v. INSLEY.

Supreme Court of Pennsylvania.

December 16, 17, 1847.

January 10, 11, 1847.

January 25, 1847.

Dec. 16, 17 — Jan. 10, 11.

IN error from the District Court of Philadelphia.

COPYRIGHT MATERIAL OMITTED

F. W. Hubbell, for plaintiffs in error.—The court misconceived the point taken below. There is no doubt that a loss by stranding is a loss by the perils of the sea; but a loss by design, of which there was evidence, was not by the perils insured against. The eighth point is the main one to be argued, and a stronger case of negligence cannot be shown. The weather was pleasant, so that all sail was set before daylight, and yet she bilged. The old cases are uniform that the insurers are not liable for a loss which is the result of ignorance or carelessness of the master: Goix v. Low, 1 Johns. Ca. 347; Tatham v. Hodgson, 6 Term Rep. 659; Gregson v. Gilbert, Park on Insurance, by Hilyard, 138; S. C., 3 Doug. 232; Vos v. Insurance Co., 2 Johns. Ca. 187; where it is decided all losses by acts of the master less than barratry, must be borne by the owners. Here there could be no barratry, since the owner was on board: Grim v. Phoenix Insurance Co., 13 Johns. 457. The same rule is uniformly applied to deviations when, from any motive, not barratrous; when the insurance is discharged: Marsh. Ins. 518; Siordet v. Hall, 4 Bing. 607; Phyn v. Royal Ass. Co., 7 Term Rep. 505; 1 Philp. Ins. 593; Brazier v. Clap, 5 Mass. 1; Ellery v. N. E. Ins. Co. 8 Pick. 22; Tanner v. Bennett, 1 Ry. & Moo. 182; Hodgson v. Malcom, 5 Bos. & Pul. 336; Carruthers v. Sydebotham, 4 M. & Sel. 77; Parkin v. Tunno, 2 Campb. 59. Tait v. Levi, 14 East, 481, is a strong case to the point; the insurers were not to be liable higher up than Tarragona. The captain, through ignorance of the coast, put into Barcelona, and it was held to be either a deviation or a breach of the implied warranty that the captain would have sufficient skill to get into Tarragona. In Cleveland v. Union Insurance Co., 8 Mass. 308, the negligence of the captain in leaving the ship's papers behind, which was the probable cause of her capture, was held to discharge the underwriters. 14 Mass. 1, and Stone v. Nat. Ins. Co., 19 Pick. 34, are to the same effect. Here was, then, an unbroken series of authorities down to 4 Maule & Selwyn. The new authorities have gone on a mistaken application of the rule in fire insurances. There the very object is protection against carelessness. This innovation was first applied to fire in cases of marine risk, and then expanded to include barratry, as defined by continental jurists. The English courts, and the Supreme Court of the United States, have adopted these views. New York and Massachusetts adhere to the old rule, as in England they still do in cases of deviation by ignorance.

In Busk v. Roy. Ex. Ins., 2 Barn. & Ald. 73, a loss by fire, owing to negligence, was held to be covered by a marine policy against fire, while it was admitted that a loss by perils of the sea, occasioned by negligence, was not within the rule. In Walker v. Maitland, 5 Barn. & Ald. 171, the loss by perils of the sea, though occasioned by negligence, was held to be covered by the policy: 14 E. C. L. R. 33, 130; Green v. Elmslie, Peake, 212. In the Patapsco Insurance Co. v. Coulter, 3 Peters, 222, this rule was followed, based upon a false definition of barratry, viz. carelessness of the master; and there, Baldwin and Thompson, Js., dissented. In Columbia v. Lawrence, 10 Peters, 517, it was said there could be no barratry on land; and, in Waters v. Merchants' Insurance Co., 11 Peters, 221, that a clause against barratry was not essential to protect the insured from negligence. The question is, therefore, whether we will adhere to the common-law rule, which is the law of the two principal commercial states, or fall in with the new cases which are shown to stand upon a definition of barratry not known to our law.

The witness was incompetent, for liability on account of his negligence: Gardner v. Small, 2 Hayw. 349; Jordan v. White, 4 Martin N. S. 335; The Hope, 2 Gall. 48; Bird v. Thompson, 1 Esp. 339; Fuller v. Jackson, Bunb. 140; Ibid. 203; 4 Term Rep. 589; 3 E. C. L. R. 53.

It was essential to the right of recovery to show an authority to insure: De Bolle v. Penna. Ins. Co., 4 Whart. 68. But here one of the owners disclaimed all interest in this policy: Higginson v. Dall, 13 Mass. 96; Gordon v. Mass. Ins. Co., 2 Pick. 249; Williams v. Smith, 2 Caines's Ca. in Err. 110.

The mortgage was evidence of fraud, where the insurance was to the full value, or else that owner could not recover more than his interest Columbia Insurance Co. v. Lawrence, 10 Peters, 507; Carpenter v. Prov. Wash. Ins. Co., 16 Peters, 495; Murray v. Columbia, 11 Johns. 302.

Cadwalader, contrà.—The question is no longer open on principle or authority. In looking at the cases, the broad principle must be borne in mind that the proximate cause of the loss must be insured against. This disposes of all the cases of deviation. The case in Parke was not a peril insured against, and it is disposed of by the report in 3 Doug. 232. The case of the sugar-house, 4 Camp. 360 and 362, shows that it was distinctly understood that negligence was no defence, if the proximate cause was within the policy: Holt's N. P. Ca. 126. Walker v. Maitland, ut sup., was a loss through all hands going to sleep. In Bishop v. Pentland, 7 Barn. & Cress. 219, there was a stranding for want of sufficient cable; Shore v. Bentall, Ibid. 798, n.; in Phillips v. Headlam, 2 Barn. & Ad. 380, through not taking a pilot, the vessel being inwardbound. In Dixon v. Sadler, 5 Mees. & Welsb. 405, affirmed in 8 Mees. & Welsb. 895, in error, the plea was that the vessel was rendered unseaworthy by the captain throwing the ballast overboard, and judgment on demurrer was given for the plaintiff. The civilians hold the same doctrine: Henderson v. Western Marine, 10 Robin. La. 164; 2 Magen, 323, 334. On these subjects, they are authorities here; for the law merchant, like the law of nations, is of universal application, and there must be uniformity: Swift v. Tyson, 16 Peters, 18; Miller v. Bartlet, 15 Serg. & Rawle, 139. The supposed conflict of authorities in America does not exist. The decision in Patapsco v. Coulter, 3 Peters, 222, had been preceded by an award of five merchants in this court in an action for the same loss: December Term, 1824, 97, 102. In Waters v. Merchants, 11 Peters, 213, the rule was held to prevail, though there was no clause against barratry. The Massachusetts cases were explained in Copeland v. New Eng. Mar. In., 22 Pick. 135. The case in Ohio was overruled in Perrin v. Protection, 11 Ohio, 170, 172; Georgia v. Dawson, 2 Gill. 370. In Pairo v. The Am. Ins. Co., MS., this court decided the same rule. Mr. J. Rogers said to the jury, "Whether the loss arose from the fault of the captain or the unskilfulness of the pilot, is wholly immaterial. The company are liable," and the judgment was affirmed. Supposing the New York cases to have been the other way, the doctrine is there considered as exploded. In 3 Hill, 253, 255, 256, the judge below (Kent) condemned the old doctrine of their courts and Cowen, J., in reviewing the decision, avoids noticing that remark.

As to the witness, it is unnecessary to cite cases. Unless the action is grounded on the negligence, the agent is always competent; 3 Barr, 342.

The owner need not specify the encumbrance; 10 Pick. 40, 43; Columbia v. Lawrence, 10 Peters, 512; 2 Phil. Ins. 660; Findlay v. Franklin, 6 Whart. 483, 496, 498. The form of the policy, "for whom it may concern," has been adopted since a doubt was expressed as to a lender on bottomry being protected; Kinney v. Clarkson, 1 Johns. 386; Crowley v. Cohen, 3 Barn. & Adol. 478. A carrier's interest was held protected by a general insurance; Wells v. Philada. Ins. Co., 9 Serg. & Rawle, 103; Traders v. Robert, 9 Wend. 409.

It is doubtful whether the affidavit would have been material, if before the insurance was made; Curry v. Commonwealth Ins. Co., 10 Pick. 535. As it was, it could only be used as an argument to the jury.

It is admitted all the counts are good, and that defendants did not ask to have the verdict confined to any particular count. In such cases, there must be a technical misjoinder to be recognised by a court of error; Bridges v. Raymond, 2 W. Bla. 800. And since the plaintiff in error has brought up all the evidence, thus showing that a verdict was proper on one of the counts, this court would either remit the record to have the verdict amended, or treat it as already amended; McCredy v. James, 6 Whart. 568. The practice is to allow such an amendment after error; Harrison v. King, 1 Barn. & Ald. 163; Lee v. Muggridge, 5 Taunt. 37; Swinburn v. Jones, 1 Mood. & Rob. 322; Eliot v. Skip, Cro. Chas. 338; Descamps v. Dutihl, 4 Yeates, 442; 2 Dowl. P. C. 76; Petrie v. Hannay, 3 Term Rep. 659; Richards v. Mellish, 3 Bing. 334.

Rawle, in reply.—The master was undoubtedly an agent of the owners; Adonis, 5 Rob. 256; Livie v. Janson, 12 E. 648; and the general rule is undoubted, that his principal is concluded by his acts. The cases cited have been shown to proceed on the erroneous definition of barratry, and they are considered, by Phillips, a deviation from the ancient doctrine. The cases in New York support our position, and the definition of barratry is settled here to mean a loss through the fraud of the captain or crew. 2 Wash. C. C. 66; 2 Binn. 574, 579.

Jan. 25. GIBSON, C. J.

On the subject of loss remotely occasioned by negligence, the law of insurance has undoubtedly been altered in England, to bring it to the law on the continent of Europe, which treats such negligence as barratry. That it is now treated so by the English courts, is proved by the fact, that though the proximate cause be one of the perils insured against, yet if the remote cause be negligence, they...