Platho v. Merchants & Manufacturers' Ins. Co. of St. Louis

• Decision Date: 31 March 1866
• Citation: 38 Mo. 248
• Parties: HENRY F. PLATHO, Respondent, v. THE MERCHANTS AND MANUFACTURERS' INSURANCE COMPANY OF ST. LOUIS, Appellant.
• Court: Missouri Supreme Court

38 Mo. 248

HENRY F. PLATHO, Respondent,

v.THE MERCHANTS AND MANUFACTURERS' INSURANCE COMPANY OF ST. LOUIS, Appellant.

Supreme Court of Missouri.

March Term, 1866.

Appeal from St. Louis Circuit Court.

Hill & Jewett, for appellant.

This was not a question of waiver, but is an attempt to hold the company on a verbal insurance. This policy is a special open policy; nothing is insured under it till it is entered on the policy. When the plaintiff produces his policy only, he has got no case; the goods are not insured by it; and he then attempts to show by parol that the secretary insured his goods on a verbal contract, or in some other way than the one pointed out in the contract existing between Gray, and his agent, and the company. It is not a case where an officer of the company undertakes to waive some condition in a contract as to the insurance of the particular goods or property insured. There are no cases which go the length asked in this, that when the company have contracted with a man that they will insure his property in writing, the secretary may insure it verbally. The case of Daws v. N. B. Ins. Co., 7 Cow. 462, holds that an officer of a company cannot bind the company by doing what he is not authorized to do by the charter and by-laws of the company--1 Hoffm. Ch. R. 172-4.

In the case at bar, Plahto was no party to the contract when made. He would only become so, under this policy, by an insurance for him. The application is in writing; shows who the insurance was for, and cannot be contradicted; and plaintiff cannot recover on that application.Cline & Jamieson, for respondents.

There was no evidence showing or tending to show that either plaintiff or defendant, or any of their agents, had any knowledge or suspicion of the loss prior to the insurance.

The second objection made to a recovery, is on the ground that the risk was not entered on the policy. It was shown to be the custom of the company to enter the risk on their cargo book, and when the value of the shipment could be fully ascertained, to have the risk charged upon the policy book, which was often done at some future time. In this case, the risk was entered on the books of the company by their secretary, who requested the agent to bring in the open policy, and have this risk entered thereon. The policy does not say when the risk shall be endorsed upon it; and if at the time it is received by the company, then the secretary had power to waive it, as it clearly falls within the scope of his authority. In this case, the proof is that he received the risk and waived the entry on the policy in the hands of Gray until some future time, when this and another risk could be entered--25 Barb. 189; 2 Dutcher, 268, 275. The object of entering the shipment on the policy, or on a policy book, is to indicate the fact of the intention to insure the goods under the policy. This can be done by the holder of the policy as well as the officers of the company or the insurance may be indicated by writing it across the bill of lading, which is often done. Any act on the part of the shipper which shows his design to have the cargo insured on an open policy, and which purpose is thus indicated before he gets any knowledge of the loss, is a good insurance. There can be no trouble on this point in this case, as the insurance was actually effected, and the entry made by the secretary of the defendant on it, as being an insurance under the open policy sued upon; and if there was anything further required to complete the contract, it was expressly waived by the secretary of the company.

Defendant claims that this policy was issued to Gray alone, and that under it plaintiff could not support this suit; and that the words ““agent,” &c., gave the contract of insurance no enlarging operation, and hence that this suit could not be maintained either in the name of the plaintiff, because the contract was not made with him, nor in the name of Gray, for the reason that he had no insurable interest in the goods at the time of the loss, and cites Wise v. St. Louis Ins. Co., 23 Mo. 80. Here the policy is issued to Gray, agent, thereby clearly showing that some one else was covered by its provisions; that some one else was meant; that Gray was without interest, either in the contract or the subject of the risk. We are unable to reconcile some parts of the opinion of Judge Scott, in the above case, with the authorities he cites in its support. 1 Phillips on Ins. 210, relates to quite a different subject; and 1 Phil. § 409, is quite to the contrary; and in 8 Metc. 348, the Chief Justice, in delivering the opinion of the court, expressly states, that where the policy was intended to cover others than those named, extraneous evidence can be introduced to show who was meant to be covered by the policy. In this case, the proof shows clearly that Gray was the mere agent or broker, and that the plaintiff was the sole party in interest; and this can be shown by extraneous testimony--Tanner v. Commonw, Ins. Co., 18 Pick. 56; Jeff. Ins. Co. v. Cotheal, 7 Wend. 82. “If (says Buller Justice,) one person makes a promise to another for the benefit of a third, that third may maintain an action upon it--3 Bos. & Pul. 149; per Bailey, J., Sargent v. Morris, 3 Barn. & Alderson, 281.

Why should the defence on this point be permitted to prevail? The goods were insured; the goods are lost by a peril insured against; the broker interposes no objection to the recovery, and the defendant does not show that it has any matter of off-set against the agent which would be unavailing against his principal--1 Phil. Ins. 409; 18 Pick. 53; 20 Id. 259; 5 Id. 76; 1 Metc. 166; 2 Sumn. 471-80; 7 Wend. 72; 23 Mass. 83; Sto. Contr. 671; 2 Duer Ins. 10, 271, 277; R. C. 1855, p. 1217; 33 Mo. 417, 420; 12 Mass. 80.HOLMES, Judge, delivered the opinion of the court.

The plaintiff sues as the party insured, on a policy by which the defendant caused “S. M. Gray, agent,” to be insured “in such sums on property from and to such places, and on board such vessels as shall be specified by application, and mutually agreed upon and written on this policy.” It appears that S. M. Gray effects this policy as the agent of the plaintiff. The usual policy book was annexed to it, in which the declarations of the vessel's voyages and property insured were to be written under this clause. The goods, which are claimed to have been insured in this instance, were shipped by the plaintiff's agent on board the “Asa Wilgus,” at St. Louis, consigned to the plaintiff at Boonville, on Saturday, the first day of September, 1860. Early on the morning of Monday following, the vessel and cargo were lost in the Missouri river. About four o'clock in the afternoon of the same day, the agent made application at the office of the defendant for insurance on these goods. He had not brought the policy with him. The secretary entered the application on his cargo book, under the heading, “S. M. Gray, agent of the Great Western Dispatch Company,” of which, it appears, Gray was also agent. The practice was to write up the insurances on policies of this kind and pay the premiums at the end of each month. There was evidence tending to show that the agent was reminded by the secretary, at the time, that he would have to bring in his policy and have the proper entry made in his policy book. A few minutes after the agent had left the office, the secretary, on taking up the evening newspaper, saw the announcement of the loss of the vessel and cargo. This fact was unknown to either party at the time of the previous transaction. The secretary immediately addressed a note to the agent, informing him that the goods were not insured, and, when afterwards the agent applied, with the policy, to have the goods entered thereon, the officer refused to do so.

The court instructed the jury for the plaintiff, as follows:

1. That the secretary of the company, within the scope of his general authority, had power to waive the conditions of the policy as to the endorsement of goods on the policy; and if he did so waive, the company are holden, though the goods were not insured.

2. That, as the policy was issued to S. M. Gray, “agent,” the word agent in the policy is a sufficient indication that others are interested in the goods, to justify the admission of parol evidence to prove property in the goods in the plaintiff; and if the plaintiff owned the goods, an action on the policy may be maintained in his name.

Instructions were refused for the defendant to the effect that, if the loss were known to the agent at the time of the application, or if the application was understood to be made by him as agent of the Great Western Dispatch company, or if the goods were not endorsed on the policy, and there was no waiver of the terms and conditions of the policy by the secretary, with a knowledge and assent of the board of directors, the defendant was not liable; and further, that on the face of the policy it did not appear that the insurance was made for the benefit of the owner, whoever he might be, so as to enable him to sue in his own...