Flemming v. Marine Ins. Co.

• Decision Date: 21 January 1839
• Citation: 33 Am.Dec. 33,4 Whart. 59
• Parties: FLEMMING v. The MARINE INSURANCE COMPANY.
• Court: Pennsylvania Supreme Court

4 Whart. 59

33 Am.Dec. 33

FLEMMING v. The MARINE INSURANCE COMPANY.

Supreme Court of Pennsylvania.

January 21, 1839

1. To render an insurer of goods liable for damage done to them in the course of a voyage, it is necessary that some evidence should be given of such extraordinary disaster or injury in the course of the voyage, as would occasion damage in a seaworthy vessel.

2. Where a policy is for account of whom it may concern although no express evidence is given on the trial that the person making the insurance had any authority from the owner of the goods to enter into the contract, yet the jury may presume an adoption and ratification of it by such owner, if it be for his benefit.

3. Although a judge may be wrong in his charge to the jury, even in stating to them that there was no evidence upon a particular point, when in fact there was some evidence, yet if the jury find against the charge, a new trial will be granted.

THIS was an action of covenant brought by Joseph Flemming against The Marine Insurance Company of Philadelphia, on a policy of insurance, dated the 16th day of January, 1827, whereby the defendants insured the sum of $5000, on goods laden or to be laden on board the brig Seneca, on a voyage from New York to the Havanna.

The defendants pleaded non infregerunt conventionem, and upon this issue the cause came on for trial before KENNEDY J., at a Court of Nisi Prius held in Philadelphia, on the 6th of November, 1838.

The plaintiff having proved the execution of the policy, which was in the usual form, for Joseph Flemming " or whom it may concern," gave in evidence a bill of lading of certain goods, dated the 15th of January, 1827, shipped by Joseph Flemming, and consigned to B. Mitjans, at Havanna, and an invoice of the same signed by Flemming. Evidence was then given to show that one John Marcia, for whose benefit the insurance was alleged to have been made, and for whose use the suit was said to be brought, was actually the owner of the goods. This and other testimony given on the trial relating to the ownership of the goods, and the circumstances of the voyage, are sufficiently stated in the charge of the learned judge, which was substantially as follows.

" This action was instituted in the name of Joseph Flemming and at his request, for the benefit, as alleged, of John Marcia. It is founded upon a contract, usually denominated a policy of insurance; and, as is alleged, was made originally for the benefit of John Marcia. It is therefore necessary that you should be satisfied in the first place, that Joseph Flemming, who procured the policy, intended it for the benefit of John Marcia; that Marcia either authorised him to have the insurance made, or adopted and approved of it after it was made; and that Marcia was the owner of the goods insured at the time of the insurance. In regard to this last matter, that of Marcia being the owner of the goods, it would seem, if you believe the evidence, that he became the owner of them by purchase, on the 22d, 23d, and 24th days of February, 1826, nearly eleven months before the date of the insurance. There is no evidence that he afterwards sold or parted with them; and Mr. Mitjans, who appears to have been the consignee of the goods at the Havanna, to which place they were insured from New York, testifies that he received them as the goods or property of John Marcia. It is true that no evidence has been given on the part of the plaintiff showing where the goods were during the eleven months, from the time of the purchase by Marcia, until they were shipped on board of the brig Seneca, but still, if you accredit the evidence, showing Marcia to have been the owner of the goods the want of evidence showing where the goods were during that period, would not be sufficient, I would think, to warrant the conclusion that Marcia had ceased to be the owner of them. Then as to the question was the insurance effected by Flemming for Marcia, and so intended at the time. If it was so, the evidence, perhaps, is not so full and satisfactory to this point as could have been asked for, and might have been expected. But still as I am not prepared to say that there is no evidence whatever given to you tending to prove this fact, it is proper that I should submit it as a question of fact to your determination. No particular request or special authority from Marcia to Flemming to have the insurance made has been proved. Nor has it ever been proved, unless I have misapprehended the testimony of Mr. Pearce, that Flemming was either a general or special agent of Marcia, and employed by the latter to do business for him. Nor has it been shown that Flemming, when he procured the insurance to be subscribed, disclosed the name of Marcia, or declared it to be on his account. Had any of those things been proved, it would have aided the little evidence that has been given on this head very much. So, if it be true, that Joseph Flemming, as is alleged by the plaintiff's counsel, had no interest in the policy, or the suit founded upon it here, he might have been called as a witness, or his testimony have been obtained on behalf of the plaintiff, whereby it would have appeared, whether he caused the insurance to be made for Marcia or not; and under what authority he procured it. But it is said, that the defendants, seeing they knew that Flemming was here lately, might have procured his evidence. The defendants however allege, that Flemming had some interest in this case, and at all events he is the plaintiff on record, and that they are not willing to trust him, and take his account of the matter, which they would have been bound to do, had they called him, without being able to prove clearly the fact, otherwise than as he would have stated it. Under this view and belief, on the part of the defendants, it would, perhaps, not have been very wise or prudent in them to have made Mr. Flemming their witness. But it is obvious that if Flemming got the goods insured for the benefit of Marcia, the latter had not the slightest reason to distrust Flemming's being willing to prove it; and hence it is much more reasonable that the plaintiff, Marcia, should have made Flemming a witness, than that the defendants should have done so. If it be true that Flemming was employed by Marcia to transact business for him, it may seem strange that they should never have corresponded by letters in regard to it: if they did, and such letters are in being, they might have been produced to show the agency of Flemming, and the authority he had to do business for Marcia. It is said, however, that the absence of both Marcia and Flemming from the country, has not only prevented this, but likewise precluded the counsel for the plaintiff from knowing or ascertaining whether such letters ever existed, and if so, whether they are still in being. This, however, cannot be very well received as a satisfactory excuse on behalf of the plaintiff. If a plaintiff, after commencing his suit, will quit the country, or living out of it at the time he brings it, will not attend to it by advising his counsel of what he can prove, and furnish the proper proof therefor, he cannot expect, and has no right to claim, that presumptions shall be made in his favour to supply the want of such proof. Having thus noticed what might have been expected, and at least adduced in point as evidence showing for whom the policy was intended to be effected, but has not been, I will now call your attention to the only evidence adduced and relied on by the plaintiff, tending to show this fact. First, it is said the form of the policy shows that it was intended to be effected for the owner of the goods, whoever he might be; and it being shown by the evidence, that Marcia was the owner of them, it is contended, that it is but fair to infer therefrom that he was the person for whom it was intended; and more especially so, as Flemming, when he employed Mr. Binney to bring this suit, declared Marcia to be the owner of the goods, and the person for whose use the suit was to be instituted. Had it been further shown by the evidence that Flemming had acted as agent for Marcia, and been recognised by the latter as such in his commercial concerns, the inference would have been pretty strong, that the policy here...