Eureka Insurance Co. v. Robinson

• Decision Date: 21 November 1867
• Parties: The Eureka Insurance Company <I>versus</I> Robinson, Rea & Co.
• Court: Pennsylvania Supreme Court

56 Pa. 256

The Eureka Insurance Company versus Robinson, Rea & Co.

Supreme Court of Pennsylvania.

November 11, 1867.

November 21, 1867.

November 11th 1867.

Before THOMPSON, STRONG, READ and AGNEW, JJ. WOODWARD, C. J., absent

Error to the Court of Common Pleas of Allegheny county: No. 22, to October and November Term 1867.

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J. Veech & Son and T. M. Marshall, for plaintiffs in error, referred to Klein v. Franklin Fire Ins. Co., 1 Harris 249; Carpenter v. Prov. Washington Ins. Co., 16 Pet. 495; s. c. 4 How. 185; Barrett v. Union Ins. Co., 7 Cush. 175; Forbes v. Agawam Ins. Co., 9 Id. 470; Pendar v. American Ins., Co. 12 Id. 469; Worcester Bank v. Hartford Fire Ins. Co., 11 Id. 265; 4 Zabr. (N. J.) 447; 21 Mo. 99; 6 Gray 169; 8 Id. 33; 17 N. Y. 609; Simpson v. Penna. Fire Ins. Co., 2 Wright 255; Dean v. Fuller, 4 Id. 474; Moore v. Patterson, 4 Casey 505; De France v. De France, 10 Id. 385; 2 Pars. on Mar. Law 335-6; 2 Phil. on Ins. pl. 1714; 1 Pars. on Cont. 201.

M. W. Acheson, for defendants in error, referred to Buckley v. Garrett, 11 Wright 204; Western Ins. Co. v. Cropper, 8 Casey 351; Simpson v. Penna. Fire Ins. Co., 2 Wright 250; Coursin v. Penna. Ins. Co., 10 Id. 323; West Branch Ins. Co. v. Helfenstein, 4 Id. 289; Franklin Fire Ins. Co. v. Updegraff, 7 Id. 350; Penna. Ins. Co. v. Bowman, 8 Id. 89; Atlantic Ins. Co. v. Goodall, 35 N. H. 328; Danville Bridge Co. v. Pomeroy, 3 Harris 151; Inland Ins. & Dep. Co. v. Stauffer, 9 Casey 403; Lycoming Ins. Co. v. Schollenberger, 8 Wright 259; Ins. Co. v. Slockbower, 2 Casey 199; Brown v. Commonwealth Ins. Co., 5 Wright 187; Phillips v. Merrimac Fire Ins. Co., 10 Cush. 350; Macomber v. Cambridge Ins. Co., 8 Id. 135; State M. Fire Ins. Co. v. Roberts, 7 Casey 443; Parsons' Mercantile Law 537-8, 488; Angell on Fire Insurance, § 7, p. 43, § 249; Trull v. Roxbury M. Ins. Co., 2 Cush. 267-8; Liscom v. Boston M. Ins. Co., 9 Met. 211; Sloat v. Royal Ins. Co., 13 Wright 20.

The opinion of the court was delivered, November 21st 1867, by STRONG, J.

The plaintiffs in the court below sued upon a contract of insurance, the evidence of which was an entry in the marine docket of the defendants as follows: "No. 6570, 1865 June 23d. William H. Churchill for account, &c., on steamboat River Queen, $6000. Total insurance inclusive, $12,000, against fire only, while finishing at the wharf at Pittsburg, Pennsylvania. Rate ½ per cent. per month from June 23d 1865."

Afterwards the following entry was made: "August 1st 1865. Loss, if any, payable to Robinson, Rea & Co. for benefit of creditors." "Burnt September 10th 1865." No policy was ever issued. At the time when the first entry was made there was an existing insurance for the same amount, effected in the same manner, in the office of the Citizens' Insurance Company. Subsequently, to wit, on the 20th of July 1865, there was a similar insurance for a like amount made in the office of the Monongahela Insurance Company. All these insurances were effected through Captain Atkinson, who had been acting as agent for the Citizens' Insurance Company. There having been no policy issued, and nothing more than the memorandum above quoted entered upon the docket of the insurers, the contract is to be regarded as made upon the terms and subject to the conditions contained in the ordinary form of policies used by the company at the time. Whether the contract in this case was one of marine insurance or of fire insurance, it is not necessary at this stage of our remarks to determine. The company was authorized to issue policies of both descriptions, and alike in the customary forms of both, it was made the duty of an assured to notify the insurers of any insurance subsequently obtained elsewhere, on penalty of forfeiting all right to recover against this company. In fire policies such notice was required to be given with reasonable diligence, and endorsed upon the policy, or otherwise acknowledged in writing by the company. In marine policies the form required the notice to be given at the office of the company, and that the same be approved and endorsed upon the policy by the secretary or other authorized officer of the company. As the defendants in fact issued no policy in either form in this case, literal compliance with the conditions was impossible. But it was doubtless incumbent upon the plaintiffs to show either that notice of the subsequent insurance in the Monongahela Insurance Company was given, or that these defendants had in some way dispensed with it. On the trial the plaintiffs accepted this obligation, and called as a witness Captain Atkinson, who, after testifying that he was an agent for the Citizens' Insurance Company in 1865, that he effected the three insurances of the steamboat, that he could not say whether he notified these defendants of the risk in the Citizens', or that he notified them of the risk when he took it in the Monongahela, added, "it was my custom to do so to avert any future trouble." He was then asked "Whether it was his custom to do so in a case like the present, viz., where he had effected an insurance in one office and subsequently a new or additional risk in another? To this question the defendants objected, but the court allowed it to be put, and sealed a bill of exceptions.

The witness then proceeded to testify that such was his custom, that he was always careful to have everything of this kind attended to, so that there would be no trouble afterwards, though he could not say whether in this particular instance he notified the Eureka office of the subsequent risk in the Monongahela.

In Schoneman v. Fegely, 2 Harris 376, it appeared that in the court below a witness had testified that he did not know whether he gave a receipt for the amount of a note received by him. He was then asked, "Did you not usually give receipts for notes received?" The question was overruled, and on removal of the case to this court, Bell, J., said, "the fact sought to be established could not be proved by evidence of a general practice after the witness had disclaimed knowledge in the particular instance." He added, however, "that if any error was committed (in rejecting the question), it was cured by something else in the trial." This, though an intimation, ought not to be considered of much authority. It is evident that the matter was regarded of no importance, as in truth it was in that case. No reasons were given for Judge Bell's remark and no authority in support of it was cited. We think it not uncommon in practice to corroborate the defective memory of a witness by proof of what was his habit in similar circumstances. Thus a subscribing witness to a will or a bond, if unable to recollect whether he saw the testator or obligor sign the instrument, or heard it acknowledged, is often permitted to testify to his own habit, never to sign as a witness, without seeing the party sign whose signature he attests or hearing that signature acknowledged. And it seems to be persuasive and legitimate supporting evidence.

The difficulty in this case is that the witness, when asked the question, had given very little, if any, evidence tending to show notice of the additional insurance in the Monongahela, and hence, to say the least, it is doubtful whether there was anything to be corroborated by an answer to the question propounded. And were it not for what was subsequently proved, we should probably feel it our duty to sustain the exception. But it was testified by another witness that on the very day when the new risk was taken by the Monongahela, the defendants acquired knowledge of it in some way. A person in their office habitually, and left in charge of the office in the absence of the secretary, a person who testified that he did receive notices of additional insurance, on that day told the sheriff, who applied for other insurance, that the River Queen was already insured in three offices, $6000 in each. It is true that when this clerk afterwards came to testify for the defendants, he stated that he acquired this knowledge from the Citizens' company and not from the assured. This was not until after the plaintiffs had closed in chief. As the case stood at that time, we think the answer of Captain Atkinson to the question put to him was corroborative of an inference fairly to be drawn from the testimony of the sheriff that the defendants having knowledge of new risk taken, had acquired it from the assured. If so, though the question may not have been admissible when it was proposed, the answer to it became proper evidence before the plaintiffs closed their case. At all events the error, if any, is not sufficiently manifest to justify us in reversing the judgment because of this exception, especially as it is quite plain compliance with the condition to give notice was waived, if the evidence is to be believed, and, therefore, the answer given by the witness became immaterial.

The 2d exception grew out of the following state of facts. The defendants called Robert Finney, their secretary, who, after stating that he personally never had any notice of any additional insurance in the Monongahela, and that the company had no notice, so far as he knew, until after the loss occurred, was asked whether "as executive officer of the company he would have consented to an additional insurance of $6000 in the Monongahela, or any other company, and if not, why?" The question was objected to and overruled, the defendants excepting. What was sought from the witness was the opinion entertained by him at the time of the trial, and his reasons for that opinion. It is not perceived upon what principle this should have been admitted. Had the inquiry been after facts existing when the new insurance was taken, facts that rendered it improbable consent would have been given, a different question would have...