State v. Williams

• Decision Date: 01 May 1894
• Docket Number: 11,438
• Citation: 46 La.Ann. 922,15 So. 290
• Court: Louisiana Supreme Court
• Parties: STATE OF LOUISIANA v. J. HERBERT WILLIAMS

15 So. 290

46 La.Ann. 922

STATE OF LOUISIANA v. J. HERBERT WILLIAMS

No. 11,438

Supreme Court of Louisiana

May 1, 1894

APPEAL from the Civil District Court, Parish of Orleans Rightor, J.

E. H McCaleb, Jr., Attorney for Tax Collector, Plaintiff and Appellant.

Branch K. Miller, Attorney for Defendant and Appellee.

Thomas J. Semmes, for same.

OPINION

McENERY, J.

The defendant is a cotton buyer engaged in purchasing cotton and shipping it from the port of New Orleans.

The cotton so purchased, is insured in an open policy in the Atlantic Mutual Insurance Company, a foreign corporation having no agent, in the State of Louisiana appointed as the law requires.

The State Tax Collector proceeded, by rule, against the defendant to compel him to pay, personally, the license which it is alleged is due by said insurance company under the provisions of Sec. 7 of Act 150 of 1890.

This section graduates licenses on each and every insurance company, association, corporation, or other organization or firm or individual doing and conducting an insurance business of any kind * * * whether such company * * * or other organization, firm or individual is located or domiciled here, or operating here through a branch department, resident board, local office, firm, company, or corporation or agency of any kind whatsoever, shall pay a separate and distinct license on said business for each company represented * * * on all risks located within the State, and upon risks located in other States or foreign countries upon which no license has been paid. In the proviso to the section, there is a prohibition to any foreign corporation doing business in this State, except through an agent duly authorized and accredited for the purposes of said business, and for all purposes connected with licenses and taxation and service of process.

The agent is to be appointed by authentic act, a copy of which is to be deposited with the Secretary of State. The proviso further states that any person or firm who shall fill up or sign a policy or certificate of insurance on open marine or fire insurance policy for a corporation, association or persons not located or represented in this State shall be considered the agent of such corporation, firm, association or persons, and shall be liable for all taxes, licenses and penalties enforced by the provisions of this act upon such persons, corporation or association, as if represented by a legally appointed agent.

The open policy issued by the Atlantic Mutual Insurance Company is one in which an aggregate amount is expressed in the body of the policy, and the specific amounts and subjects are to be endorsed from time to time in the policy.

There is no dispute as to the fact, that this open policy was consented to in New York, and the policy issued directly from the domicile of the company. It was issued to the defendant, J. Herbert Williams, on account of himself, and to cover cotton in bales purchased and shipped by him, on which drafts are drawn for the purchase, upon whom it may concern.

The amount of the open policy is two hundred thousand dollars, covering shipments of cotton from 23d September, 1893, to September 23, 1894, "to ports in Great Britain direct or via New York for transhipment, and to ports on the Continent between Hamburg and Trieste inclusive, direct or via New York for transhipment; including the risk of fire at New Orleans, while in preparation for, or in process of shipment or awaiting shipment, but no fire risk prior to shipment to be covered, unless the vessel is in port loading or ready to load, or until the cotton is discharged from the railroad cars and at the risk of J. Herbert Williams, premium to be paid by the assured at the rates of this company.

"No risk is to be insured by this policy until a letter signed by J. Herbert Williams and addressed to the president of this company, detailing name of vessel, particulars of shipment, with description of the property and amounts to be insured, is deposited in the postoffice at New Orleans, which must be done, while the property is in good safety, in all cases prior to the departure of the risk from New Orleans; a duplicate letter to be sent by the following mail.

A new and separate policy to be issued for each risk, the premium on which is to be paid in cash upon the delivery of such policy in New York to J. Herbert Williams. Risks endorsed hereon and subsequently taken off and new and separate policies issued, not to exhaust this policy.

"The said goods and merchandise hereby insured are valued, including premiums, at the sums expressed in the letter of advice as provided for herein, but not to exceed the invoice cost and ten per cent." The policy requires the notice, or application as it is called in the testimony, to be mailed prior to the shipment, and on its receipt the company has a right to accept or reject the application for insurance on the particular shipment. We presume the notice is required to inform the company whether or no the conditions prescribed by the policy, previously issued in New York, have been complied with. The policy required the premium on the insurance of any particular shipment of cotton, to be paid on the presentation of the invoice or bill of lading and notice of shipment. The defendant, in pursuance of the terms of the policy, makes an application through his broker in New York, to insure prior to the shipment of the cotton. His broker pays the insurance.

In the case of Douville vs. Insurance Company, 12 An. 259, this Court interpreted an open policy similar in all essentials to the one under consideration.

In that case the plaintiff had failed to furnish the defendant company with an invoice of goods, purchased in Paris, which were lost under an open policy.

This Court said, "On a policy of insurance in this form there must necessarily exist as many contracts of insurance as there are, endorsements upon the policy of separate shipments of goods. The delivery of the policy four years previously did not constitute a contract of insurance...