Rӧlker v. Great Western Insurance

Headnote

1. A policy, which insures the plaintiffs, “on account of whom it may concern for outward shipments, and homeward, to be for account of themselves, and to be consigned to them by invoice and bill of lading," and which declares; “no outward shipment to be considered insured until approved and indorsed on this policy by this company." Homeward shipments to be reported as soon as ascertained. Also, to cover such other risks as may be approved and indorsed on this policy. It is agreed that this policy shall also cover shipments consigned to the plaintiffs, and addressed to Veuve A. Merentie & Co.,” will not cover a homeward shipment consigned to the plaintiffs, it not being addressed to Veuve A. Merentie & Co., and being consigned by third persons, owners thereof, to the plaintiffs for sale as factors, and the plaintiffs not being otherwise interested therein.

Exception by the plaintiffs, August Rolker, August Mollman, Alphonse Eerier and Felix Cheteaux (comprising the firm of “ Utilizer, MtiTlman & Co.,”) to a decision in favor of the defendant, The Great Western Insurance Company, dismissing the complaint.

The defendants, by a policy of insurance dated January 17, 1857, insured the plaintiffs “ on account of whom it may concern for outward shipments, and homeward to be for account of themselves and to be consigned to them by invoice and bill of lading,” for voyages specified, “ on specie and merchandise, or either. * Ho outward shipment to be considered insured until approved and indorsed on this policy by this company. * * Homeward shipments to be reported as soon as ascertained. * * Also to cover such other risks as may be approved and indorsed on this policy.” * * It is agreed that this policy shall also “ cover shipments consigned to A. Bolker, Mollman & Go., and addressed to Yeuve A. Merentie & Go., upon all kinds of lawful goods and merchandises, laden or to be laden on board the good vessel or vessels,” &c. The parts of the policy above quoted were written in the blanks of its printed parts. The-goods, for the loss of which the plaintiffs in this action claim to recover under said policy, were shipped at Port au Prince on the 18th of December, 1856, on the ship Delafield, and were by the bills of lading to be delivered “ unto Messrs. A. Bolker, Moll-man & Go., or to their assigns,” and consisted of 825 bags of coffee, which were so consigned “ for the account of Edward Lloyd & Go.,” and of 275 bags which were so consigned “ for the account of Mr. Maunder,” and the “ consignment was to them (the plaintiffs) for sale as factors.” The Delafield sailed from Port au Prince on the 21st of December, 1856, and was not heard from after that. On the 6th of February, 1857, the plaintiffs presented to the defendants a written statement and notice of the fact and particulars of such shipment, including the date of . the bill of lading, the names of the vessel and of the master, with a request that it might be entered on said policy; and the defendants declined, stating that they would not take the risk. This statement or nolice was presented and application made, as soon as the plaintiffs heard of such shipment.

The complaint, on a trial had December 15, 1859, before Judge Pierrepont and a jury, was dismissed, on the ground “ that it appeared from the evidence that the plaintiffs were not interested in the coffee shipped by the brig Bélafiéld, otherwise than that the same was coming under consignment to them, and that the policy did not cover such homeward risk.”

The plaintiffs excepted, and the court then ordered that the questions of law be first heard at the general term, and the entry of judgment, in the meantime, suspended.

I. The plaintiffs, as consignees, had an insurable interest in the goods to their full amount, and might effect insurance thereon in their own names and on their own account. (Arnould on Ins., I, p. 229, ch. X, and pp. 245,246 ; Phil. on Ins., I, p. 176 ; De Forest v. The Fulton Fire Insurance Company, 1 Hall, pp. 133, 134, 135 ; Lucena v. Crauford, 3 Bos. & Pull., 95 ; 2 Bos. & Pull., N. R., 302, 321 ; S. C., 5 Bos. & Pull., 289 ; Craufurd v. Hunter, 8 T. R., 13 ; Hancox v. Fishing Insurance Company, 3 Sumn., 132 ; Wiggin v. Mercantile Insurance Company, 7 Pick., 271 ; Carruthers v. Sheddon, 6 Taunt., 14 ; S. C., 1 Marsh. R., 416 ; 3 Kent Com., p. 271 ; Putnam v. Mercantile Marine Insurance Company, 5 Metc., 386 ; French v. Hope Insurance Company, 16 Pick., 397 .

The words “on account of whom it may concern” must relate to both outward and homeward shipments.

It would be an arbitrary interpretation to refer these words to outward shipments alone.

If it refers to neither “outward and homeward” shipments, then the words would have no effect whatsoever.

The Court will give a meaning to all words contained in an instrument.

The plain intention of the parties was to have the policy apply to all goods which might come to them, either for account of themselves, or that might be consigned to them, and to insure them for whom it might concern.

The sentence, if put in proper English, would be: The plaintiffs make insurance for such outward shipments and homeward, as shall be for account of themselves and such as shall be consigned to them by invoice and bill of lading. (Wiggin v. Mercantile Insurance Company, 7 Pick., 271 ; Buck v. Chesapeake Insurance Company, 1 Pet., 151 , 162, 163 ; Columbian Insurance Company v. Lawrence, 2 id., 25, 46, 47 ; Hancox v. Fishing Insurance Company, 3 Sumn., 132 , 140.)

XL The policy attached to and covered the cargo of the brig Delafield. Upon the evidence, its loss by the perils of the seas was presumptively established. The plaintiffs were entitled to recover under the policy. The decision of the Court by which the case was taken from the jury, and the complaint was dismissed, is erroneous. A new trial should be ordered;

I. The interest in homeward cargoes, intended by the parties to be protected by the insurance, is clearly and unequivocally described in the policy as limited to “homeward shipments, to be for account of the plaintiffs themselves, and to be consigned to them by invoice and bill of lading.” A manifest distinction is made between outward shipments and homeward. Ko outward shipment was to be considered insured, unless approved and indorsed on the policy; and any outward cargo might be so applied upon the policy, for account of whom it might concern, whether the plaintiffs had any interest therein or not, and whether the same should be shipped by themselves or other parties; -but in each outward risk the Company retained the power of approval or rejection. As to homeward shipments, nothing is left open for subsequent adjustment between the parties, the company being bound to apply upon the policy the class of homeward shipments therein described, and the assured being entitled to no others'. The homeward shipment reported in this instance was not for account of the plaintiffs themselves, and they

had no interest in it at or before the time of the loss. It was not therefore within the policy.

1. The reason for the distinction made between outward and homeward shipments is obvious. As to outward shipments, whether made by, or for account of, the plaintiffs or other parties, the company retained complete control over the contract, by means of its right to notice, and power to approve or reject. As to homeward shipments, which were, of course, made abroad, and by unknown parties, and under undisclosed circumstances, the company limited the risks it was willing, in advance and without the possibility of particular judgment on the risks, to assume. It required the determinateness of ownership, and the guaranties which the ascertained ownership gave as to the unknown circumstances of the risk, as fixed elements in the open contract it was ready to make. As the company was contented to make, so the plaintiffs were contented to take this insurance.

2. The remaining written portion of the policy sanctions the construction of the first clause, contended for by the defendant. “Also, to cover such other risks as may be approved and indorsed on this policy.” As to outward shipments the same provision had already been expressed. This clause, therefore, must have been added in reference to homeward shipments only; and by this clause it was left open for the plaintiffs to cover any consignments to them, for account of the consignors or other parties, which they might desire to insure, and which, when reported, the company might see fit tó cover. “ It is agreed that this policy shall also cover shipments consigned to A. Rolker, Mollmann & Company, and addressed to Veuve A. Merentie & Company,” &c. Obviously, if the preceding words of the policy operated to cover all shipments from the West Indies consigned to the plaintiffs, and also all shipments from there consigned to other parties for the plaintiffs’ account, these words would be unnecessary and superfluous.

3. Some force must be given to the words in the policy “on account of whom it may concern,” of which the essential part is written and not printed. That these words apply to outward shipments is agreed on both sides, and such application satisfies then use. That these words do not apply to homeward shipments is clear, for if they did, the addition of the words “for account of themselves,’ as limiting the class of homeward risks to be taken, would be utterly insensible.

H. There is neither obscurity nor ambiguity in the terms of the policy which describe the classes of risks to be covered. Had there been, it might have been competent to give evidence of the dealings of the parties under the policy, or of the usage among underwriters under similar policies. Ho such evidence having been offered, the case must stand upon the distinct and certain terms of the .contract.

III. The plaintiffs’ exception must be overruled, and judgment directed to be entered for the defendant.