Gaty v. Phœnix Ins. Co.

• Decision Date: 31 March 1860
• Citation: 30 Mo. 56
• Parties: GATY et al., Plaintiffs in Error, v. PHŒNIX INSURANCE COMPANY, Defendant in Error.
• Court: Missouri Supreme Court

30 Mo. 56

GATY et al., Plaintiffs in Error,

v.PHŒNIX INSURANCE COMPANY, Defendant in Error.

Supreme Court of Missouri.

March Term, 1860.

1. A time policy of insurance on a steamboat, which authorized the boat to navigate the usual waters of the Mississippi, Ohio, Illinois, Tennessee and Cumberland rivers, contained this proviso: “Provided, that the steamboat shall not be employed in the cotton trade, unless the consent of this company be obtained and endorsed thereon.” Held, that the underwriters would not be responsible for a loss of the boat occurring while she was engaged in the cotton trade.

Error to St. Louis Court of Common Pleas.

Plaintiffs effected an insurance with the defendant to the amount of $5,000 upon their interest in the steamboat Mayflower against fire and perils of the river for one year from January 20, 1855. In the policy it was provided that it should be lawful for said steamboat, during the continuance of the policy, to navigate the usual waters of the Mississippi, Ohio, Illinois, Tennessee, and Cumberland rivers. It was further provided as follows: “And to proceed to and touch and stay at any places on said waters, if thereunto obliged by stress of weather or unavoidable accidents, or if the same be necessary for the transaction of any lawful business connected with the voyage, without prejudice to the insurance. Provided, that the said steamboat shall not be employed in the cotton trade unless the consent of the company be obtained and endorsed thereon.”

The cause was tried by the court without jury. The court made a finding of the facts, which, after setting forth the policy, proceeded as follows: “In the latter part of September, 1855, alterations were made on the Mayflower to make her more convenient for stowing cotton. On the 21st of September, 1855, the officers of the boat caused to be published in the newspaper at Memphis, Tenn., the following advertisements: ‘1855. Mayflower--Joseph Brown, master--Memphis and New Orleans regular Tuesday packet. This new and splendid steamer, built the past season at a cost of more than $100,000, has been placed permanently in the Memphis and New Orleans trade, and will remain the entire season, leaving Memphis on Tuesday, the 20th September, at four o'clock P. M., and every alternate Tuesday thereafter. Shippers may rely on the Mayflower running permanently in and becoming identified with the trade, as hereafter she will be principally owned in Memphis. The passenger accommodations are superior to any on the western waters, having larger rooms, with linen outfits, tables set restaurant style, &c. For freight or passage, apply on board, or to Duval, Algeo & Co.’=‘1855--1856. Memphis and New Orleans--regular Tuesday packet Mayflower--Jos. Brown, captain--Henry Filbrun, clerk. The middle deck of this magnificent steamer having been taken out for the purpose of making her suitable for the Memphis and New Orleans trade, she will commence her regular trips about September 25th, and continue during the season. Shippers may rely on her remaining permanently in the trade. Duval, Algeo & Co., Lavalette & Morris, agents. (Enquirer and Appeal copy.’) About the last of September, 1855, the Mayflower commenced running as a regular packet between Memphis, Tennessee, and New Orleans. Her regular day for leaving Memphis was every alternate Tuesday. From the time she commenced running in said trade she made five or six trips, and on each down trip she was loaded chiefly with cotton; and the last trip she made from Memphis to New Orleans she had on board about 3,700 bales of cotton. The principal article of export from Memphis, and from points below Memphis to Bayou Sara, is cotton. Cotton is the staple of the country between the points aforesaid, and constitutes the great bulk of all freights and cargoes carried by steamboats from Memphis to New Orleans, and a very large proportion of the cotton from Memphis down is carried by the boats running between Memphis and New Orleans, although transient boats from the Ohio river and from points above the mouth of the Ohio river sometimes carry cotton. Cotton trade, as applied to navigation, is the trade in which boats are engaged when cotton is the principal article shipped, and the trade from Memphis, and points as low down as the sugar region, to New Orleans is the cotton trade. On the 1st of December, 1856, the Mayflower, about 11 o'clock in the forenoon, arrived at Memphis from New Orleans, and on that day made a contract to carry to New Orleans from Bradley's landing, about sixteen or eighteen miles above Memphis, from 12,000 to 15,000 sacks of corn, to be carried in parcels of from 3,000 to 6,000 sacks a trip. Accordingly, on the day of her arrival at Memphis she went up to Bradley's landing, took on board about 4,800 sacks of corn, which were all that were ready for shipment, and returned to Memphis about 11 o'clock the night of December 1, 1855, which was Saturday, and on the next night, whilst lying at the port of Memphis waiting for Tuesday, her regular day for leaving, with no freight on board except said corn, she was burned and lost. The fire was communicated by the steamboat George Collier, which was also a boat engaged in the cotton trade. The last named boat had just arrived from New Orleans, but neither of the boats had any cotton on board at the time of the fire. The master of the Mayflower refused to contract for carrying cotton as the boat passed up the river to Bradley's landing, but the corn taken at Bradley's landing was not one-fourth of a cargo for the Mayflower, and her officers expected to complete her cargo with cotton, and would have carried, if the boat had not been lost, 3,000 bales of cotton. From the latter part of September to the 1st of December, 1855, the Mayflower was engaged in the cotton trade, and at...