Commonwealth Insurance v. Cropper

Bartol, J., delivered the opinion of this Court; This suit was instituted by the appellees upon two poli” cies of insurance effected by them with the appellant, an insurance company of Pennsylvania; one of the policies was upon the body, tackle, apparel and furniture of the steamer “Dupont,” and the other on her freight and cargo.. The policy on the vessel as originally issued, was delivered on the 7th day of May 1856, and was for §2,000, of a valued policy, and covered a voyage “at and from Baltimore to New York, via Chesapeake and Delaware Canal to Delaware Bay, and from thence by sea to New York.” That voyage was performed- in safety, and the vessel returned to Baltimore. Subsequently, another voyage being contemplated, the appellant made the contract of insurance upon the steamer, sued on in this case, by an endorsement upon the policy, in these words: “$27. — Baltimore, June 4th, 1856. It is hereby understood, that this policy shall cover §2,500 on steamer E. J. Dupont, from Baltimore to New York, at the rate of one and one-half per cent., subject to steamboat clause, on vessel, valued at $6,000. — §2,500 a per cent., $35.50 premium.’-’ It was proved that the words “ subject to steamboat clause,” embodied in the endorsement, meant subject to the following clause : “ It is understood that the company is not liable for any breakage or derangement of the engine, or bursting of the boiler, or any of the parts thereof, or for the effects of fire from any cause connected with the operation of the repair of an engine or boiler, unless the damage be occasioned, and the repairs rendered necessary, by the stranding or sinking of the vessel after her engine ³¹⁷ and boiler shall have been, put in successful operation.

It is also understood, that this company is not liable for fuel, wages and provisions, nor for any expense of any delay consequent upon repairs to the engine or boiler of any kind, or repairs to the vessel, if such repairs are rendered necessary by breakage or derangement of machinery, or bursting of boilers.” This clause has been inserted bere at length, because upon its true construction the decision of this appeal mainly depends. The policy on freight and cargo was dated the 6th day of June 1856, “ on a voyage at and from Baltimore to New York.” The steamer proceeded on her voyage, going hy what is usually called the outside course, passing down.the Chesapeake bay to the Atlantic, and on the 14th of June was stranded and lost. At the trial below two prayers were offered by the plaintiffs, which were granted with a modification to the second; and the defendant offered seven prayers, of which the first four were granted, and the other three were refused, and the exception was taken to the granting of the plaintiff’sprayers, and to the rejection of the defendant’s fifth, sixth and seventh prayers. In the argument of the 'cause in this Court, the appellant’s counsel did not insist upon the exception to the plaintiff’s prayers, thus leaving for our consideration only the ruling of the Superior Court upon the defendant’s prayers.

These present two questions or grounds of defence relied on by the appellant: 1st. That the limitation as to the course of the voyage contained in the body of tlie policy of the 7th of May, restricts the contract evidenced by the memorandum or endorsement thereon, and that consequently the voyage pursued was a deviation from that covered hy the contract. This point is raised by tbc sixth prayer. At the trial parol evidence was given to the jury, that at ³¹⁸ the time the insurance of the 4th of June was effected, the outside voyage was contemplated, and that an additional half per cent, premium was added “to cover the outside risk.” This evidence was given without objection, and without the right to except to it thereafter being reserved.

The point is presented hy the sixth prayer, “ that the liability of the defendant as to the voyage underwritten, depends upon the terms of the written contracts, without reference to any parol evidence as to the meaning thereof, or the meaning or intentions of the parties in entering into the same.” Certainly no rule of law is better settled than that here insisted on hy the appellant. But if it were a controlling question in the case, there would be some difficulty under the established practice in this State, in withdrawing such