Stilwell v. Commercial Ins. Co.
| Decision Date | 10 April 1876 |
| Citation | 2 Mo.App. 22 |
| Parties | SAMUEL STILWELL et al., Respondents, v. COMMERCIAL INSURANCE COMPANY, Appellant. |
| Court | Missouri Court of Appeals |
1. Freight is insurable and recoverable while the goods are so situated as to create a well-grounded expectation of freight.
2. Where a marine insurance is “against a total loss of any part of said boat or barge's freight, at and from St. Louis to New Orleans,” the policy covers freight contracted for and to be shipped on the way, as well as that on board when the vessel leaves port.
3. Where the insurance was against total loss of freight of a boat and barge, and the barge was lost and her cargo transferred to the boat, and freight earned upon it, held, that this fact did not prevent a recovery for the loss of freight which would have been earned but for the destruction of the barge.
4. Where some of the plaintiffs became bankrupt after the commencement of the suit, and before judgment, the fact that the assignee was not made a party is no ground for reversing the judgment.
APPEAL from St Louis Circuit Court.
Affirmed.
Samuel N. Holliday, for appellant, cited: Amis v. Steamboat Louisa, 9 Mo. 621; Gleim v. Steamer Belmont, 11 Mo. 112; Clark v. United Ins. Co., 7 Mass. 365; Williard v. Millers', etc., Ins. Co., 24 Mo. 561; Buchanan v. Ocean Ins. Co., 6 Cow. 318; Ridyard v. Phillips, 4 Blatchf. 443; Lord v. Neptune Ins. Co., 10 Gray, 109; Davy v. Hallett, 3 Caine, 16; Forbes v. Aspinwall, 13 East, 327; Watson et al. v. Ins. Co. of South America, 3 Wash. 1; McGaw v. Ocean Ins. Co., 23 Pick. 405; 2 Ph. on Ins. 20-21; 2 Pars. Mar. Law, 69.
Rankin & Hayden, for respondents, cited: Thewing v. Ins. Co., 10 Gray, 457; Lord v. Neptune Ins. Co., 10 Gray, 113; American Ins. Co. v. Curtis, 4 Wend. 45; 15 Mass. 324; Tenscolt v. Christie, 2 Brod. & B. 320; Davidson v. Willasey, 1 M. & S. 321; Warre v. Miller, 7 D. & R.; s. c., 4 B. & C. 538; Devaux v. J'Anson, 7 Scott, 507; In re Clark, 3 B. R. 123; Samson v. Barton, 4 B. R. 1; Foster v. Hackley, 2 B. R. 131; Manson v. Horrick, 100 Mass. 323.
This was action to recover $2,000, and interest, on a policy of insurance upon freight of steamer “Commonwealth” and barge “W. B. Dance,” against total loss of any part of said steamer's or barge's freight, at and from St. Louis, Mo., to New Orleans, La., in December, 1871.
The petition alleges that plaintiffs were owners of the steamboat ““Commonwealth,” and charterers of the barge “Dance;” that plaintiffs, Samuel and Enoch Stilwell and Daniel R. Powell, were partners, and as partners, and on account of the owners, they, on December 19, 1871, made a contract of insurance with defendant, according to the terms of the contract set out in full below; that, at the time this insurance was made, the boat and barge were about to start on a voyage from St. Louis to New Orleans and intermediate points; that the steamboat and barge had each a partial cargo on board, and the rest of their cargoes, to the full extent of their carrying capacities, contracted and agreed for; that the freight on that part of said barge's cargo loaded at St. Louis was $2,298.22 in value; that the freight on all of said barge's cargo was over $4,000; that said boat and barge left St. Louis on or about December 19, 1871; that, on December 20th, and while navigating the Mississippi river on said voyage, said barge met with an accident of navigation, by which she was sunk so that she could not be raised, but became a total loss; that by said accident the voyage was, so far as the barge was concerned, broken up; that, owing to a peril insured against, the barge did not and could not earn any freight, and that the whole amount of the barge's freight, which was the property of the plaintiffs, was totally lost to them, by which they suffered a loss of over $4,000.
The answer denied nearly all the allegations of the petition except that the contract of insurance was made as stated by the plaintiffs. The defendant set up, however, that the barge was chartered by the owners of the steamboat ““Commonwealth,” and was by her towed to Cairo, with a possibility of taking the barge to New Orleans; and claimed that the policy did not cover any specified amount on either said boat or barge, but covered $2,000 of freight on both the boat and barge, and that, whether the freight was all on the boat or all on the barge, or partly on each, it was equally covered by the policy; alleged that the cargo of the barge was on deck, and was saved and transferred to the boat, and by the boat conveyed to its destination, and that the freight thereon was earned by the boat and barge, and was collected by the owners of the boat. The defendant further alleged that the freights on the boat and barge were insured in the Home Insurance Company, and that the plaintiffs were endeavoring to collect double insurance.
The reply denied the allegations in the nature of new matter contained in the answer, and alleged that both boat and barge started on the voyage to New Orleans, and at the time of the accident were bound thither; admitted that a part of the barge's cargo was, on the sinking of the barge, transferred to the boat, and by it carried to New Orleans, but denied that the freight on such cargo was earned by the boat and barge, or collected by the owners of the boat; admitted that there was a policy on the same freights in the Home Insurance Company, to the amount of $1,000, but denied that there was any double insurance. The policy is in the form common in cases of insurance on freight, and reads as follows:
“ St. Louis, December 19, 1871.
To Commercial Insurance Company, of St. Louis:
Insurance is wanted by Stilwell, Powell & Co., for account of owners of steamer ‘Commonwealth,’ loss, if any, payable to assured, upon freight of steamer ‘Commonwealth’ and barge ‘W. B. Dance,’ against the total loss of any part of said steamer's or barge's freight, at and from St. Louis, Mo., to New Orleans, La., by the dangers of navigation or fire, with the privilege of lightering, towing, and reshipping, in the sum of $2,000; rate, 1-4 per cent., $25.00.””””
The application was signed for the plaintiffs, and across the face of it is the printed word “accepted,” and this acceptance is signed, “John B. McDowell, jr., sec'y.”
The evidence showed that, when the above insurance was taken out, the ““Commonwealth” and the barge “Dance” were at St. Louis partially loaded, and about to start to New Orleans; that the river was very low, and that the barge ““““Dance,” which had been a steamboat, and was of large carrying capacity, was taken by the master, to enable him to comply with numerous engagements he had made for freights; that, on December 20, 1871, when the boat and the barge left St. Louis, the boat had from 100 to 150 tons of cargo, the freight on which amounted to $1,054.71, and that the barge had from 225 to 250 tons on board, the freight on which amounted to $2,298.22; that the boat had capacity for about 100 tons of cargo more than what she had on board, and that the barge had capacity for about 350 tons in addition to her cargo shipped at St. Louis; and that, in arranging for cargo to be taken on at way points between St. Louis and Cairo, calculations were made by the agents at St. Louis with regard to the above facts, and to the additional fact that, as the barge drew much less water than the boat, the principal part of the engaged freights would have to be taken on her, and not on the boat. As usual in times of low water, freights were very plenty, and shippers at points between St. Louis and Cairo, anxious to get their goods to market, were making contracts at St. Louis, by which they secured transportation beforehand. Thus, while the boat and barge were “up” for New Orleans, shippers below contracted with the agents of the boat and barge at St. Louis, and the master had agreed with them, before he left St. Louis, to take on that trip, at Kaskaskia, 1,200 barrels of flour; at Rockport, 300 barrels; at Willard's, from 800 to 1,000 sacks of corn, and, at Cape Girardeau, between 1,400 and 1,600 barrels of flour, at rates which were fixed, on 'Change at St. Louis, between the agents of the owners and these shippers or their agents. The engaged freight, according to the rates thus fixed, amounted to about $4,500. In making these contracts for goods thus to be taken at points below St. Louis, the master states that specific engagements were made for the barge, and specific engagements for the boat. Thus, from 350 to 400 tons were engaged especially for the barge, the master calculating that she could, in view of her capacity, carry that amount in addition, at the then stage of the water.
On December 20th the boat and barge left St. Louis for New Orleans. When near Ste. Genevieve Island the barge met with an accident of navigation, and sunk in such a manner that it could not be saved nor repaired. No other boat or barge could be procured to take its place, and, in consequence of this, the master was forced to put the barge's cargo--that is, the cargo the barge had on her when she left St. Louis--on board of the steamboat “Commonwealth.” For this cargo so received by her, the boat gave to the barge a bill of lading, which was read in evidence, the boat agreeing to transport the barge's cargo from the place of disaster to its destination, at the same rate of freight at which this cargo was to have been transported from St. Louis. This was the usual rate; the testimony showing that rates of freight from points between St. Louis and Cairo to Vicksburg and New Orleans were the same as from St. Louis to Vicksburg and New Orleans. The “Commonwealth” then started down the river, but, being overloaded by having the barge's cargo aboard, she was forced to wait two weeks for water. The river rising, she went on her way. Owing to the accident to the barge, all the freight-money on merchandise engaged to be...
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