Delaware State Fire & Marine Insurance v. Shaw

Bartol, C. J., delivered the opinion of the Court. It appears by the record that five prayers were offered by the appellant, the defendant below. The fifth was granted; all the others were refused. Two instructions were given by the Court to the jury. “The defendant then withdrew its second, third and fourth prayers, saying by its attorney, that the instructions of the Court covered the same points, and were satisfactory to him; but he reserved an exception to the rejection of his first prayer.” The first prayer denies' the right of the plaintiff to recover upon the writteu paper declared on as the cause of action.

No exception was taken by the appellant to the two instructions given to the jury. Consequently, they are not ¡subject to review on this appeal. They directed the jury, that the plaintiff was entitled to recover upon the finding of certain facts therein stated, and the appellee contends that these instructions constitute the law of the case, binding on the appellant which acquiesced therein, and that it cannot be heard to insist upon its first prayer, which was entirely inconsistent with the instructions •granted. We do not understand the statement contained in the bill of exceptions, above recited, as importing that the •appellant acquiesced in the instructions of the Court, as ■constituting the toholedaio of the case ; but only as covering ⁵⁵⁰ the same points presented by its second, third and fourth- prayers.

These are not set out in the record. It must be-understood, however, that the appellant’s counsel intended to accept the instructions granted in lieu of those prayers which were withdrawn, and not to waive or-abandon the position asserted in its first prayer. Especially when in terms, an exception was reserved to the rejection of that prayer. It is, therefore, properly before-us for consideration.

It asserts that “the paper for insurance declared on by the plaintiff in this action is not such a contract in law as. entitles him to sue upon it in this case, and that the verdict must be for the defendant.” The plaintiff was owner of one-eighth of the bark “ Palestina,” which was about to proceed on a foreign-voyage, and wishing to obtain an insurance thereon for $1200, his agents, Loud, Olaridge & Co., employed Forrest, an insurance broker, who obtained from Watkins, agent of' the defendant in Baltimore, the following paper : “No. 1002. $1200. Delaware State Eire and Marine Insurance Co., Wilmington, Del. This certifies that we have this day entered in the name of Loud, Olaridge & Co., for whom it may concern, on our open policy No. 1002, with the Delaware State E. & M. Insurance Company, a risk of twelve hundred dollars-on bark Palestina, at and from June 20th 1878, to June-20th 1879, loss if any, payable in current funds to Mess-Loud, Olaridge & Co., or order, according to the terms, and conditions of the policy. “ James S. Watkins “ Agent. “Valued $10,000. “Baltimore, June 20th 1878. “$1200 at 12 (00) per cent. $144.” ⁵⁵¹ This paper was delivered by the broker to Loud, 01a-ridge & Co., and by them assigned in writing to the plaintiff. The bark being lost, the plaintiff called on the defendant and demanded payment; but the defendant refused to pay the loss, alleging that it had never insured the bark.

Ho policy was ever prepared or issued by the Company. The paper signed by Watkins is declared on as the cause of action, or contract of insurance, and the question raised by the first prayer, is whether it constitutes a valid and binding contract of insurance, assuming that Watkins was the general agent of the Company, authorized to enter into contracts of insurance in its name and on its behalf. This depends upon the construction of the written paper, the Court below, having very properly excluded the evidence of the opinions of Forrest and Watkins upon the validity of the paper, to bind the defendant. Before considering the terms and effect of the paper declared on in this case, it may not be out of place to refer to what has been said in decided cases and by text writers on the subject of what are known in marine insurance as “Slips.” Mr. Arnold in his excellent work on Marine Insurance, page 246, (4th Eng.

Edition,) says: “ The broker when requested to effect an insurance, prepares a brief memorandum of the leading particulars of the proposed risk, such as to convey at a glance to those who are skilled in the business, a sufficient notion of the intended policy, to enable them to say whether and at •what premium they will underwrite it. This memoran-’ dum, called the Slip, is presented, if at Lloyd’s, successively to the underwriters there, who if they think well of the risk, and the premium at which it is either offered, or has already in part been taken, initial the slip, each for the sum he thinks proper to underwrite, and so on until the whole amount is subscribed. ⁵⁵² “ If the application be to the companies, a fresh slip is presented to each, and thé secretary or underwriter, in ■case the risk be taken, initiálá it for so much. The only purpose that such a slip can now serve, is that it shows the broker how far and at what premium he can provide for the insurance required. It enables him to draw up the policy on the proper stamp for signature at Lloyd’s, and each company to frame their own policy on the terms proposed. “As to whether there be an engagement by initialing the slip, that ought to be considered binding in honor, is not a question suitable to these pages.

All those questions which have, from time to time, been mooted at the bar, and even on the bench, as to the effect of this initialed memorandum, either at law or in equity, have at length been quieted by the statute so often referred to in the course of the last few pages. (30th & 31st Victoria.) It is enacted that every contract or agreement for sea