Schroeder v. Stock & Mut. Ins. Co.

• Decision Date: 31 March 1870
• Citation: 46 Mo. 174
• Parties: JOHN C. SCHROEDER, Defendant in Error, v. THE STOCK AND MUTUAL INSURANCE COMPANY, Plaintiff in Error.
• Court: Missouri Supreme Court

46 Mo. 174

JOHN C. SCHROEDER, Defendant in Error,

v.THE STOCK AND MUTUAL INSURANCE COMPANY, Plaintiff in Error.

Supreme Court of Missouri.

March Term, 1870.

Error to St. Louis Circuit Court.

Voorhies & Mason, for plaintiff in error.

I. This policy is not a time policy, and no proper construction can make it such, for the reason that no time is named or limited. (1 Pars. on Mar. Ins. 312; May v. Modigliani, 2 Dunn & East, 30; Wooldridge v. Boydell, H. Bl., C. B., 231; Robertson v. French, 4 East, 130.) Upon every fair and legal construction of the language of that policy, the risk was to begin when the barge was towed from the port of St. Louis. But the petition alleges that the cargo never got to St Louis. It was destroyed before it came within the terms of the policy. Nor was there any loading at St. Louis. This annuls the policy. (Hudgson v. Richardson, 1 W. Bl. 463; 3 Burr. 1477; 2 Pars. on Mar. Ins. 49; Homeyer v. Lushington, 15 East, 46; 4 East, 130; Grant v. Paxton, 1 Taunt. 463; Park v. Hammond, 6 Taunt. 495; Graus v. Marine Ins. Co., 2 Caines, 339; Scriber v. Ins. Co. of N. A., 2 Wash. C. C. 107; Richards v. Marine Ins. Co., 3 Johns. 307; 1 Pars. on Mar. Ins. 441, and cases cited, note 1.)

II. The policy on the cargo contains a warranty that the ice was, at the time of the issuing of the policy, loaded on board the barge. It is a declaration by the assured that the ice is loaded. (1 Pars. on Mar. Ins. 337; Williams v. New England Mut. Ins. Co., 31 Maine, 219; Stout v. City Fire Ins. Co., 12 Iowa, 371; Chaffee v. Cataraugus Ins. Co., 18 N. Y. 376.) The contract was avoided under the warranty, or, more properly speaking, there was no contract, since there was no subject-matter for a contract. (Blackhurst v. Cockrell, 3 T. R. 360; Newcastle Fire Ins. Co. v. Macmoran, 3 Dav. 255, 262; Duncan v. Sun Fire Ins. Co., 6 Wend. 488; Pawson v. Watson, Cowp. 785; DeHahn v. Hartley, 1 T. R. 343; 2 T. R. 186; Kirby v. Smith, 1 B. & A. 661; Fillis v. Bratton, cited in Park on Ins. 414; 1 Pars. on Mar. Ins. 337.)

Haeussler, and Jones & Davis, for defendant in error, cited 2 Duer on Ins. 689, § 31; N. Y. Firemen's Ins. Co. v. Walden, 12 Johns. 513; Mackwell v. Fraser, Doug. 260; Shirley v. Wilkerson, id. 396; Willes v. Glover, 1 New R. 14; Littledale v. Dixon, id. 151; Longstr v. Delafield, 1 Johns. 522; Margatroid v. Crawford, 3 Dall. 491; Marshall v. Union Ins. Co., 2 Wash. C. C. 357; Livingston v. Maryland Ins. Co., 6 Cranch, 274; Maryland Ins. Co. v. Rudens, id. 338; 1 Pet. 170; Hodgson v. Richardson, 1 Black, 289; Hull v. Cooper, 14 East, 479.

BLISS, Judge, delivered the opinion of the court.

Defendant's agent in St. Louis issued to plaintiff two policies of insurance for $2,000 each, one upon his ice barge and one upon the cargo. The policies were issued while the barge was lying at plaintiff's ice-house opposite Alton, ready to be loaded. It was loaded at once, and, while being prepared for its trip, took fire, and both barge and cargo were lost.

The chief controversy concerns the construction of the policies, the defendant claiming that they were not to operate until the barge reached St. Louis. The cargo policy causes the plaintiff “to be insured, lost or not lost, in the sum of $2,000 on his cargo of ice, seven hundred tons, more or less, contained in the barge Charles, of Alton; to be towed by steamboat from St. Louis, Missouri, to Helena,” etc., * * * “beginning the adventures upon said property from and immediately following the loading thereof on board of said boat,” etc.

The obvious intention of the parties was that the insurance should operate upon the ice when loaded, and to provide in the contemplated trip that the barge should be towed from St. Louis to its destination. If loaded above St. Louis, it might be brought down in any proper way, but when there it must take a steamer. If the written portion were inconsistent with the printed, the application of the well-known rule would be considered; but there is no inconsistency, and both are effective. In holding that the policy, by its terms, covered the cargo when destroyed, the court committed no error.

In the policy issued upon the barge the intention of the insurer is not so clear. The company causes “John C. Schroeder to be insured in the sum,” etc., “lost or not lost, upon the barge Charles, for the term of ____, wherver she is in safety at noon on the 26th day of March, 1868, and from thence to noon on the ____ day of ____, 18--, when this policy shall expire, unless,” etc.; “with permission to navigate the Mississippi river from the city of St. Louis to Helena,” etc., etc. The written portion of the policy is indicated by italics, and it will be seen that the date of the commencement of the risk is given in writing, the same as the points upon the river between which the barge was permitted to run.

The time of the commencement of the risk is so far made plain and unequivocal by filling the blanks left for that purpose, while others provided for inserting its...