St. Louis Ins. Co. v. Glasgow

• Decision Date: 31 July 1844
• Citation: 8 Mo. 713
• Court: Missouri Supreme Court
• Parties: ST. LOUIS INSURANCE COMPANY v. GLASGOW, SHAW & LARKIN.

8 Mo. 713

ST. LOUIS INSURANCE COMPANY

v.GLASGOW, SHAW & LARKIN.

Supreme Court of Missouri.

July Term, 1844.

APPEAL FROM CIRCUIT COURT OF ST. LOUIS.

SPALDING and TIFFANY, for Appellant.

H. R. GAMBLE, for Appellees.

NAPTON, J.

This was an action of covenant on a policy of insurance, brought by Glasgow, Shaw & Larkin against the Insurance Company. The policy was for $6,000 on one-fourth of the steamboat Pizarro, for one year, against the ordinary perils of “rivers, fires, enemies,” &c., and the assured agreed, “that the steamboat aforesaid should be competently provided with master, officers and crew.” The declaration contains no averment of a compliance with the agreement, that the boat should be competently provided with “master, officers and crew,” but avers the loss to have happened within the year, and by fire, whilst the boat was lying at St. Louis.

The defendants filed several pleas, five of which were demurred, to, and the demurrer sustained. These pleas are numbered on the record, the 5th, 6th, 7th, 8th, and an additional plea. The fifth plea alleges, that the loss in the declaration mentioned was occasioned by and through the mere carelessness, negligence and misconduct of the plaintiffs, their servants and agents, then and there in the possession, charge and control of said boat. The sixth plea avers, that, “just before the loss in the declaration mentioned, the plaintiffs, their servants and agents, caused the said steamboat to be put on a dock, called a floating dock, by means of which dock the boat was raised out of and above the surface of the river, and so continued until the loss; and while the boat was in that situation, the plaintiffs, their servants and agents, caused a fire to be made and kept in a stove on the deck of the boat, and caused large quantities of picked oakum to be placed and spread upon the deck of the boat, about and near the fire so made and kept by the plaintiffs, their servants and agents, whereby and by means whereof the peril and danger of consuming, burning and destroying said boat by fire, was enhanced and increased, without the knowledge, privity or consent of the defendants, contrary to the tenor and effect, true intent and meaning of the policy.” In the seventh plea, it is alleged, that “before and at the time of the loss, the steamboat wason the floating dock, above the surface of the Mississippi; and just before the loss, certain workmen and laborers in the retainer of the plaintiffs caused a fire to be made in a stove on board the boat, and then and there, near and about the fire, picked a large quantity of combustible material, called oakum, and spread the same oakum about and near the fire, whereby the peril and danger of burning said boat was greatly increased, and, by the mere carelessness, negligence and misconduct of said workmen and laborers, the said oakum was set on fire, and by the fire so occasioned the said boat was burned,” &c. The eighth plea states, “that just before and at the time of the loss, the said steamboat was not in possession, nor under the care or control of the plaintiffs or other owners, the master, officers, and crew, or the servants and agents of the owners, or any of them, but the said boat, at the time when, &c., was in the possession of certain workmen and laborers, with the knowledge, privity and consent of the plaintiffs, and without the knowledge, privity and consent of the defendant, contrary to the intent of the policy, and while said boat was so in possession, and under the care and control of said workmen and laborers, the said boat was burnt, consumed and destroyed, by the mere carelessness, negligence and misconduct of the said workmen and agents, which is the same loss,” &c.

The additional plea alleges, “that just before the loss, the plaintiffs and their servants and agents, without the knowledge or consent of the defendants, caused the boat to be put and placed on the floating dock, and raised above the water, and so kept until at and after the loss; and while the boat was so lying on the dock above the Mississippi river, and just before the loss, the workmen engaged in the retainer of the plaintiffs, in repairing the boat, did, unnecessarily and improperly, without the knowledge or consent of the defendant, cause a fire to be made and kept on board said boat, in a stove there, and did then and there, unnecessarily and improperly put, place and spread, near and about said fire so made and kept, and at other places in and about said boat, a large quantity of a certain combustible material, called picked oakum, whereby the danger and peril of fire, and the burning of said boat, became and was improperly and unnecessarily greatly increased and enhanced, contrary to the duty of the plaintiffs, their servants and agents in that behalf, and the meaning of the policy; and afterwards, while the said boat was so on the said dock, above the surface of said river, and while the said picked oakum was so kept and spread on and about the said boat, was then and there set on fire, and burned, and by the burning of said oakum, and the fire so occasioned, the said steamboat was burned,” &c.

The only question presented by the record is, the propriety of the action of the Circuit Court in sustaining the demurrer to the above pleas. Upon this question several points have been made, but the most important one arises out of the fifth, sixth and eighth pleas, in which the loss is averred to have been occasioned by the negligence, carelessness and misconduct of the agents of the assured. As the point is also involved in the consideration of the other pleas, it will first be disposed of. It has been admitted in the argument of this case, and the adjudged cases fully sustain the admission, that where the misconduct amounts to barratry, and there is no express insurance against barratry, the underwriters will not be responsible for a loss occasioned by barratrous conduct of the agent of the insured. It is also agreed, that where the insured have not complied with their express warranty, that the vessel shall be competently provided with master, officers and crew, a loss occasioned by such non-compliance is not covered by the policy. Some of the pleas demurred to are referred to this principle, and their sufficiency will be considered hereafter.

The question is, whether, when the assured have provided competent officers and crew, and the boat has been furnished with the necessary tackle and appurtenances, in compliance with the express warranty in the policy, the underwriters are discharged from a loss occasioned by a peril insured against, by showing that such peril was brought about by the negligence or mismanagement of the agents of the insured. Upon this question the counsel for the appellant has presented, in his brief, a critical review of all the authorities, reaching back to some of the earliest English cases. We shall not attempt to reconcile the cases thus arrayed, nor to defend the opinions and course of reasoning which have given occasion to the comments, and in some instances to the censure of the learned counsel.

An examination of the case will, we think, show, that since the case of Burk v. Royal Exchange Company, decided in 1818, nearly every court in which this question has arisen has manifested a decided inclination to hold the underwriters responsible for losses occasioned by a risk insured against, notwithstanding such loss may have been attributable to the negligence or misconduct of the assured or his agents. Walker v. Maitland, 5 Barn. & Ald., 171; Bishop v. Pentland, 7 Barn. & Cres., 219; Patapsco Insurance Company v. Coalter, 3 Peters' R. 222, Columbia Insurance Company v. Laurence, 10 Peters, 507; Waters v. Merchants Insurance Company, 11 ibid. 213; Perrin's Adm'rs v. The Protection Insurance Company, 11 Ohio R. 147.

The doctrime established by these cases, we consider founded on principles of sound policy. It does not depend upon the insertion of barratry, as one of the risks assumed, but it arises from the fact, that the loss happens by a risk aimed against, and that to permit the insurer, in such cases, to show that it can be traced, either immediately or remotely to some negligence, carelessness, inattention or misconduct of the owner or his agents, would be to raise an implied warranty, not of the general competency of master, officers and crew, but of their diligence at all times, and under all circumstances. To adopt this construction of the policy would certainly tend to great embarrassment in the recovery of claims clearly understood to be secured by the contract of the parties. It would be imposing upon the assured a liability which is certainly not to be found in the words of his contract, and not, as we think, justified by its spirit. He is bound to provide competent officers, and to have his vessel seaworthy, but he does not stipulate that these officers shall be exempt from the frailties incident to men in all situations; that they shall exercise such diligence as shall prevent all losses from mistakes, carelessness and negligence. If the negligence be what is called crassa negligentia, which is by some writers considered synonymous with fraud, the case is different, and the underwriters are exempt upon another principle, unless fraud also is expressly insured against Indeed, there are few of the risks contained in the common marine and river policies, which might not be traced to some act of negligence or oversight in those having charge of the vessel. In the case of fire, especially, we cannot readily conceive of any loss by this element, unless in cases of lightning, where it must not necessarily have been the result of some mismanagement on the part of those in command or their servants. To say, in such cases, that though the vessel has been insured against fire, yet the underwriter has not insured against a fire happening by negligence, would be to “keep the the word of promise to the ear and break it...