Greenleaf v. St. Louis Ins. Co.

• Decision Date: 31 October 1865
• Citation: 37 Mo. 25
• Parties: DAVID N. GREENLEAF, DUNCAN S. CARTER, AND WILLIAM P. WILCOX, Appellants, v. THE ST. LOUIS INSURANCE COMPANY, Respondent.
• Court: Missouri Supreme Court

37 Mo. 25

DAVID N. GREENLEAF, DUNCAN S. CARTER, AND WILLIAM P. WILCOX, Appellants,

v.THE ST. LOUIS INSURANCE COMPANY, Respondent.

Supreme Court of Missouri.

October Term, 1865.

Appeal from St. Louis Circuit Court.

T. T. Gantt and J. H. Rankin, for appellants.

In 1839 a policy of a similar character came before Mr. Justice Story, and was construed by him in the case of Palmer v. Warren Ins. Co., 1 Stor. 360 et seq. * * * The appositeness of the remarks of Mr. Justice Story in the case of Palmer v. Warren Ins. Co., and the authority of the Supreme Court of the United States in the case of Yeaton v. Fry, 5 Cranch, 335, render it unnecessary to say anything. It is submitted, that

I. The exception of the Missouri, Red, White, Arkansas and Yazoo rivers in the policy does not amount to a warranty, or a condition that the A. McDowell should not, during the time covered by that instrument, enter any of these rivers; but,

II. That exception did have the effect of suspending the liability of the underwriters during any navigation of those rivers, and of exempting them from any liability for loss or damage consequent upon such navigation.

III. That the loss stated in the petition having been in no respect caused or contributed to by the trip to Kansas, the underwriters are liable therefor.

Glover & Shepley, for respondent.

I. The voyage up the Missouri river being on waters not covered by the policy, and a voyage not provided for therein, is a deviation and the insurers are discharged.

1. To constitute a deviation it is not necessary that there should be an increase of risk. The risk may be actually less than that permitted by the policy. It is enough that it is not the risk insured. The insured has no right to substitute other risks, and a deviation instantly results the moment another and different risk is taken from the one insured. (2 Par. Mar. Law, 276; Kelsell v. Wiggins, 13 Mass. 68; 2 Par. Mar. Law, 283; Ellcott v. Mason, 4 Bro. P. C. 469.)

2. Any deviation, however slight, or for however short a time it may exist, discharges the insurer. (Coffin v. Newburyport, 9 Mass. 436-39; Walsh v. Homer, 10 Mo. 6.; Natchez Ins. Co. v. St. bt., 2 Sm. & M. 340; Gazzam v. Ohio Ins. Co., Wright, 204; Jolly's Ex'rs v. Ohio Ins. Co., Wright, 540.)

3. The fact that this is a time policy in no manner effects this case, as the waters in which the vessel was to run during the risk insured were specified in the policy, and there could be no departure from these without it being a deviation.

4. But in fact this is no time policy. A time policy is when the insurance extends from one time named to another time named, on a vessel, without confining her, or naming any particular ports or seas in which the vessel shall run. These are called mixed policies, illustrations of which will be found in 1 Arn. on Ins., 412-15.

5. The plaintiffs voluntarily took the chances as to what effect this would have upon their insurance when they declined to insure for the voyage, and took the risk themselves, and did not obtain any permission from the defendant. Therefore, they voluntarily incurred, with full knowledge, all the consequences of the act.

II. The words used in the policy are a warranty on the part of the insured that during the period for which the boat was insured she would not go into the Missouri river. So that here is not only a deviation, but the same act is a breach of a warranty on the part of the insured. The elements and effects of a warranty in a policy are these:

a. It must appear on the face of the policy itself.

b. It must relate to the risk.

c. It is immaterial whether a loss can be traced to the breach of the warranty or not. (1 Arn. Ins., 581.)

d. A warranty is part of the contract, and must be performed whether material or immaterial. (1 Arn. Ins., 584; Gaty v. Phœnix Ins. Co., 30 Mo. 56.)

1. The clause in the policy is a warranty on the part of the insured that the boat will not, during the continuance of the policy, run in the Missouri or other excepted waters.

A warranty is an expression or stipulation inserted in a contract of insurance, (Wall v. East River Ins. Co., 3 Seld. 370; 6 Wend. 488; Wright, 202 & 539; 1 Arn. on Ins. 577, 579 & 581; 2 Par. Mar. Law, 106-31; 30 Penn. 315; 6 Gray, 221; Ogden v. Ash, 1 Dall. 162,) and it makes no difference though it was known to the insurer that the warranty was false at the time the insurance was made. (30 Penn. 315.)

A breach of warranty touching a future fact avoids the policy, (1 Arn. on Ins. 583.) Thus an insurance of “the American ship M.,” the “Spanish brig M. C.,” the “Swedish brig S.,” is a warranty that the vessel is as stated. (1 Phil. on Ins., 416.)

WAGNER, Judge, delivered the opinion of the court.

This was an action on a policy of insurance for five thousand dollars effected in the St Louis Insurance Company on the hull of the steamer A. McDowell.

The insurance was for one year beginning on the 4th day of April, 1862, and ending on the 4th day of April, 1863. The policy contained the following clause: “With permission to navigate the Mississippi and Ohio rivers and their tributaries, usually navigated by boats of her class, the Missouri, Arkansas, White, Red, and Yazoo rivers excepted.”

At the trial the following facts were agreed upon by both parties:

1. That the policy described in the petition was executed by the insurance company.

2. That on the 24th of May, 1862, the McDowell left St. Louis on a voyage to Leavenworth, Kansas, and returned to St. Louis on the 1st day of June, 1862.

3. That said voyage was undertaken entirely for the United States Government, the vessel having no freight except 300 soldiers and 200 mules and horses.

4. That full notice of her arrival and departure on this trip was given by advertisement in the Daily Missouri Republican, a paper taken daily by defendant.

5. That no damage was done to said vessel, by said voyage, and that she returned in a good and seaworthy condition to the port of St. Louis.

6. That no other act of the plaintiffs, except said voyage, is set up by the defendant to defeat this action.

7. That before the McDowell went into the Missouri river on said voyage the owners had a consultation about the expediency of obtaining insurance on said vessel, in the Missouri river, during said voyage, but they finally concluded to take the risk themselves for that voyage. It is insisted in support of the judgment of the court below, that the policy contained a warranty that the vessel should navigate none of the excepted streams; and also that in going into the Missouri river the boat had been guilty of a deviation.

If either of these positions be true, it is fatal to the appellants. Every affirmation of a fact contained in a policy, in...