Leftwich v Royal Ins. Co. of Liverpool

• Decision Date: 16 June 1900
• Citation: 46 A. 1010,91 Md. 596
• Parties: LEFTWICH v ROYAL INS. CO. OF LIVERPOOL.
• Court: Maryland Court of Appeals

46 A. 1010

91 Md. 596

LEFTWICHvROYAL INS. CO. OF LIVERPOOL.

Court of Appeals of Maryland.

June 16, 1900.

Appeal from superior court of Baltimore city; Henry Stockbridge, Judge.

"To be officially reported."

Action by Alexander T. Leftwich, surviving partner of Ricards, Leftwich & Co., against the Royal Insurance Company of Liverpool. From a judgment in favor of defendant, plaintiff appeals. Reversed.

Argued before McSHERRY, C. J., and PAGE, FOWLER, PEARCE, BRISCOE, JONES, BOYD, and SCHMUCKER, JJ.

William L. Marbury and Carroll T. Bond, for appellant. George Whitelock and Edward I. Koontz, for appellee.

BRISCOE, J.This is a suit brought in the superior court of Baltimore city by Alexander T. Leftwich, surviving partner of Ricards, Leftwich & Co., of Baltimore city, against the Royal Insurance Company of Liverpool, a corporation doing business in the state of Maryland, upon a policy of fire insurance, to recover for the loss of 36 hogsheads of tobacco while stored in the warehouse of the Baltimore Steam-Packet Company, at the foot of Union Dock, Baltimore. The tobacco was received at the warehouse on or about the 13th of May, 1898, and remained in storage until the 17th day of same month, when the warehouse and tobacco were entirely destroyed by fire. The tobacco had been shipped and consigned to the appellants from North Carolina under three bills of lading, and was intended for shipment to Kobe, Japan. The declaration states that on or about the 28th day of March, 1898, the Royal Insurance Company of Liverpool, for good and lawful consideration, executed a policy of insurance in favor of the plaintiffs, covenanting and agreeing to insure and indemnify the plaintiffs, up to an amount not exceeding $1,000, against all direct loss or damage by fire to goods and merchandise while contained in the said warehouse of the Baltimore Steam-Packet Company, or on a wharf, street, or pavement during process of storage or delivery, subject to certain exceptions and conditions in said policy expressed, and subject to an abatement in case of other insurance upon the same property in the proportion which the amount of its policy bears to the whole amount of insurance on said property; that the said property was insured in an additional amount of $4,500 in the Insurance Company of North America. The provisions of this policy (New York standard form) relating to the property destroyed by fire are in these words: "Royal Insurance Company of Liverpool, in consideration of the stipulations herein named and of fourteen and 3/100 dollars premium, does Insure Mess. Ricards, Leftwich and Company for the term of time from the 28th day of March, 1898, at noon, to the 28th day of October, 1898, at noon, against all direct loss or damage by fire, except as hereinafter provided, to an amount not exceeding one thousand dollars, to the following described property, while located and contained as described herein, and not elsewhere, to wit: On tobacco and tobacco stems, and packages for and containing the same, their own, or held by them in trust or on consignment, or sold but not removed, contained in the frame warehouse of the Baltimore Steam-Packet Company, situate foot of Union Dock, Baltimore, Md. To cover, also, on wharf, street, or pavement during process of storage or delivery. Other insurance permitted without notice until required." By the terms of the policy the proofs of loss were required to be furnished the company within 60 days after the fire. And there was a further stipulation that "the company shall not be held to have waived any provision or condition of this policy, or any forfeiture thereof, by any requirement, act, or proceeding on its part relating to the appraisal, or to any examination herein provided for; and the loss shall not become payable until after the notice, ascertainment, estimate, and satisfactory proof of the loss herein required have been received by this company, including as award by appraisers when appraisal has been required." The appellants also held open marine insurance in the Insurance Company of North America, dated the 9th of May, 1898, to cover about 100 hogsheads of tobacco, including the 30 hogsheads destroyed by fire, to be shipped from North Carolina to Kobe, Japan. There was no policy issued to cover this tobacco, but, according to a course of dealings between the appellant and the company, the tobacco was insured upon the same terms as those contained in a policy of marine insurance previously issued by the company to the appellants. The original policy was dated October 22, 1879, and was to cover shipments of tobacco on board of "vessels and steamers at and from Richmond and Norfolk, Virginia, and other ports and places, to Baltimore." The policy was not to continue in force longer than one year, unless by agreement; but by a subsequent indorsement on this policy on the 1st of July, 1880, it was extended to cover shipments to New York as well as Baltimore. It also contained what is known as the "American Clause," providing that "if the said assured shall have made any other assurance upon the premises aforesaid, prior in date to this policy, then this insurance company shall be answerable only for so much of the amount as...