Petrie v. Phenix Insurance — 43 N.Y. St. Rep. 478

Majority

p. 478

Jerry Petrie, Resp’t, v. The Phenix Ins. Co. of Brooklyn, App’lt.

(Court of Appeals, Second Division,

Filed March 8, 1892.)

Headnote

1. Insurance (Marine)—Construction of policy—New York harbor.

Plaintiff held an open policy, accompanied by a book to contain the risks proposed and taken. A proposal, instead of stating that the boat was to run from Brooklyn to Tarrytown, contained the words “New York Harbor,” under the heading “ from,” and the column “to” was blank except that the word “ Harbor ” extended into that column. The book was

p. 479

sent to tlie agents of defendant, who wrote “Harbor” in the approval column and returned the book. The boat sunk on a bar at Tarrytown. Held, that the contract was not void because the duration of the risk was. not fixed by time, nor for a voyage between specified places, as a number of cargos had been previously insured by defendant for plaintiffs in a. similar way, and that the question as to whether New York harbor included Tarrytown was properly submitted to the jury.

3. Same—Loss insured against.

The boat being seaworthy, was moored alongside the dock, grounded when the tide went out, and broke and the cargo was destroyed. Held,. ■ that this was a loss insured against by defendant.

Appeal from a judgment of the general term of the supreme court of the second department, which affirmed a judgment entered on verdict, and also affirmed an order denying a motion, for a new trial made on the minutes.

April 26, 1886. the defendant issued to Sherman Petrie an. open uniform canal cargo policy, by which it undertook to “ insure the several persons whose names are hereafter endorsed hereon as owner, advancer or common carrier, on goods * * *' on his own boat, or boats belonging to others, loaded on commission or charter. From place to place, as endorsed hereon, or in a■ boolc Jcept for that purpose, at the rate, and on the goods, * * *' as specified in the said endorsement." “ No risk considered as insured under this policy until said endorsement is approved and. signed by this company or its duly authorized agents at New York, unless with special agreement with the company, and endorsed hereon.

“ Beginning the adventure upon the goods * * * from and immediately following the lading thereof, at the port or place endorsed as aforesaid, and continuing the same until the said goods * * * shall be safely landed at the port of destination as aforesaid. rj

“ Touching the adventures and perils which the said insurance company is contented to bear and take upon itself on said trip or voyage, they are of the seas, canals, rivers, and fires, and all other-perils, losses or misfortunes that shall come or happen to the hurt, detriment or damage of the said goods * * * laden on board of said boats on the voyage or trip aforesaid.” Excepting certain perils and losses which do not include the misfortune which happened to the boat in question.

. It was provided in the policy that in case of loss, “ and within thirty days from the time the same may happen, the said insured shall deliver to said company as particular an account thereof as the nature of the case will admit.” Also : “ That no suit or action against this company for the recovery of any claim upon, under or by virtue.of this policy shall be sustainable in any court of law or chancery unless such suit or action shall be commenced within the time of twelve months next after such loss or damage, shall occur.”

With this policy a book was delivered to the insured ruled in. columns and having the following printed headings: “Date; Account of; Vessel or boat; From; To ; Cargo; Amount; Premium ; Signature of Approval.”

p. 480

Sherman Petrie was a forwarder engaged in business at 142 Broad street, New York. W. M. Onderdonk & Co. were insurance brokers, agents of defendant and engaged in business at Nos. 1 and 3 Beaver street, New York. By the course of business between Petrie and W. M. Onderdonk & Co. the cargoes laden on boats were entered by Petrie or his clerk in this book, which was sent daily to W. M. Onderdonk & Co., and they approved or disapproved of the risk so offered. Their approval was indicated by entering in the column headed “ Signature of Approval ” the number of the page of their own book in which the risk was entered. This was the usual form of approval, but when risks were taken for “ The Harbor of New York ” the approval of the agents • was denoted by the word “ Harbor ” written in the column headed “ Signature of Approval.’’

The premiums were fixed by the insurance agents and charged to Petrie, who paid them monthly. October 17, 1887, Petrie loaded the canal boat “ C. L. Abel ” with one' thousand barrels Portland cement, and on that day entered in the columns of his insurance book: “ Date, Oct. 17, 1887, Account of, Sherman Petrie ; Vessel or Boat, C. L. Abel; From, New York Harbor; To, Blank,” except as the word “ Harbor ” extended into that column; “ Cargo, Cement; Amount, $2,500 ; Premium, no entry; Signature of Approval, no entry and sent the book to W. M. Onderdonk & Co. on the same or the next day, and thereupon they wrote the word “ Harbor ” in the column headed “ Signature of Approval ” and returned the book to Petrie. The boat left Brooklyn October 19, 1887, and reached Tarrytown, its destination, the next morning, where later in the day it sank at its dock. The sinking was caused by the tide going out and grounding the boat at about its center, which caused it to break in two, so that it filled with water and destroyed the cargo. This action was brought December 1, 1888, to recover this loss. The defenses interposed were: (1) That the defendant did not insure the risk, (2) that a valid contract to insure was not entered into because the duration of the risk was neither measured by time nor termini of the voyage; (3) that the.loss was not occasioned by the perils insured against; (4) that proofs of loss were not furnished within thirty days ; (5) that the action was not begun within twelve months after the happening of the loss.

Edwin G. Davis, for resp’t; Joseph F. Mosher, for app’lt.

The question which meets us at the threshold of this discussion is, was the evidence sufficient to justify the submission of the question, whether the defendant’s agents approved of the application for this insurance ? ' The authority of W. M. Onderdonk & Co. to bind the defendant by endorsing in the book in any form their approval of the risk proposed, is not denied. Six days before the entry in question the insured entered on the same book an application for insurance on the boat “ Delia McKeever” for $2,500 on cement, New York harbor, which was approved by writing the word “ Harbor ” in the column desig

p. 481

mated “ Signature of Approval.” The insured testified that other risks were approved by the entry of the word “ Harbor ” in the approval column. A clerk of the insurance brokers, who was ■sworn in behalf of the defendant, testified that he wrote the word ■“ Harbor” opposite this application and the same word in the same book against other applications for insurance, and that it indicated an acceptance of the risk by insurers other than the defendant. The witness also testified that he never informed the insured that the word “ Harbor ” indicated that the risk was not taken by defendant, but by some other company, and that the insured had no other open policy and book, except these issued by defendant. The assured testified that these brokers did all of his insurance, that he always applied for it in the same way by •entering the proposed risk in this book and sending it to the agents for their approval, who usually returned certificates of insurance ■executed by the defendant and that he never had received any from any other company. This state of the evidence justified the court in submitting the question of the acceptance of the risk by the defendant to the jury and its verdict must be regarded as •final upon this question.

Was the contract of insurance void because the duration of the risk was not fixed by. time nor for a voyage between specified ■places? Ordinarily marine contracts of insurance not specifying the duration of the risk either by time or by the places at which the voyage insured is to begin and end, are void for uncertainty. Molloy, Bk 2, chap. 7, § 14; 2 Par. Mar. L., 311; 1 Phil. Ins., § 918; 1 Arn. Mar. Ins., 6th ed., 236; Manly v. United M. & F. Ins. Co., 9 Mass., 85 .

The undisputed evidence is that during the season of 1887 the assured had been engaged in forwarding cargoes of Portland ■cement to the contractors engaged in extending the Croton water supply, which were delivered at various points in the upper part ■of the harbor of New York, on the Harlem river, and at Tarry-town. It was the custom of the contractors to direct the assured to load five or six thousand barrels on boats and subsequently designate the places at which they should be unloaded. That in such cases the place of destination could not be entered in the book, and that the words “From New York to harbor” indicates such shipments. The assured also testified that all of these cargoes had been insured through these agents by the defendant under the policy put in evidence and by entries on the book made as in this instance. Under such a practice an insurance on a cargo to be delivered at some place in the same port would not be so indefinite and uncertain as to render the contract void, both parties understanding what was meant by the term. Did the loss •occur in that harbor ? It was competent to receive evidence as to the meaning in the business of insurance of the term, “ Harbor of New York.” Nelson v. Sun Mutual Ins. Co., 71 N. Y., 453 , Upon this issue there wa's evidence that the term “Harbor of New York,” as used in the business of marine insurance, included and other within the New York custom house

p. 482

district. Other witnesses testified that the harbor of New York did not extend above Spuyten Duyvil, and did not include Tarry town. This question was submitted to the jury and found for the plaintiff. No available error is presented by the ruling on the. question put to the witness Baker, because he was subsequently permitted to testify as to the meaning of the words “New York to harbor ” and fully as to all facts called for by the question.

It is insisted that the loss was not within the perils insured against. The evidence is that the “Abel” was loaded at the-Anglo-American Stores, Brooklyn, N. Y., October 19, 1887, and left that place at 8 o’clock p. m. of that day in a tow bound for Tarrytown, where it arrived at 1 o’clock the next morning. The; boat was moored alongside of the dock, and when the tide went out it grounded and was so broken or strained that it sank, and. the-cargo was destroyed. It was testified that the boat was seaworthy when laden, which evidence was not disputed. This case, does not fall within the class of cases of which Berwind v. Greenwich Ins. Co., 114 N. Y., 231 ; 23 St. Rep., 93 , is a type. In that, case the boat sprung a leak and sank ‘without any known cause. It was held that this raised a presumption that it was unseaworthy, but that this presumption might have been rebutted by showing that the loss was occasioned by some other cause than the. unseaworthiness of the boat This was precisely what was done, in this case.

Whether the defendant had waived the requirement in the policy, that formal proofs of loss should be furnished within thirty days, and an action brought within twelve months after a loss,, was submitted to the jury and was found for the plaintiff. No point is made by the learned counsel for the appellant that the evidence was insufficient to sustain the verdict on these issues.

But two exceptions were taken to the instructions given by the court, and neither of them was argued by the learned counsel for the appellant.

I think the judgment should be affirmed, with costs.

All concur.

Footnotes

1 Affirming32 St. Rep., 965.