Reliance Marine Insurance v. Herbert

Headnote

Insurance—Marine—Submission.

The submission of the question whether the company knew, when the risk was taken, that the insured were charterers of the barge containing the property insured, was held erroneous under the evidence.

Appeal from a judgment for defendants, and an order denying a motion for a new trial

The action was brought to recover back moneys paid by plaintiff under a mistake of fact for a loss under a marine insurance policy. The policy was issued March 1, 1891, to the Lehigh & Wilkesbarre Coal Company, on account of whom it might concern, insuring coal laden on board vessels, boats, or barges against perils of the sea, etc. Thereafter, and about March 5, 1891, the coal company shipped 461 tons of coal on board the barge Macy, to be carried from Port Johnson across the bay to Fifty-Third street, East river, and there delivered to defendants. The defendants, from the time the coal was loaded on the barge, were to be the owners of the coal. March 6, 1891, plaintiff accepted this coal as one of the risks covered by the policy, and insured the same in the sum of $1,900 ; and on the same day, while the barge was being towed across the bay in New York, it capsized and all the coal excepting thirty-four tons wms lost. Only thirty-four tons were delivered to defendants. About November 18/1891, the coal company made proofs of loss of the coal; and thereafter, and on March 2, 1892, the plaintiff paid to the coal company, on

account of the loss, $1,786.14, and the coal company paid the money so received to the defendants. At the time the plaintiff paid the money to the coal company, the coal' company assigned and transferred to the plaintiff all their right, title, and interest in the coal lost, and the proceeds thereof, and all that could in any way be made, saved, or realized from the damage or loss, with full power to take and use all lawful ways and means to so make and save and realize said property or its proceeds. At the time the coal was shipped, and at the time it was lost, the defendants-were the charterers of the barge which carried it. It is claimed by the plaintiff that it was not informed at the time the risk was taken that the owners of the coal were also the charterers of the barge on which it was shipped, and that the policy was therefore void. It is claimed by the defendants that the plaintiff was informed of this fact immediately after the loss, and that the payment of the money was therefore a voluntary payment, and made with knowledge of this fact; and the money cannot therefore be recovered back, on the ground that it was paid under a mistake of fact. The court charged the jury that the fact that the owners of the coal insured were also the charterers of the barge was a fact material to the risk, and that the plaintiff was entitled to be informed of this fact at the time the risk was taken ; and if such information was not given, but the fact was suppressed, then the plaintiff had the right to repudiate the policy. The agent of the plaintiff who issued this policy testified that this information was not given him at the time the risk was taken. No evidence was given in the case tending to show that such information was given, to the agent The court, nevertheless, left to the jury, under the objection and exception of the plaintiff, the question of fact whether such information was given, or whether the fact was suppressed. There was conflicting evidence as to whether this information was given to the plaintiff after the loss, and before the money was paid.