Western Assurance Co. v. Chesapeake Lighterage & Towing Co.

Boyd, J., delivered the opinion of the Court. This is an appeal from a judgment rendered against the appellant, in favor of the appellee, on a policy of marine insurance on a cargo of corn. The case was previously before this Court on the appeal of the Towing Company, when the judgment was reversed and a new trial awarded. Towing Co. v. Assurance Co., 99 Md. 433 .

Originally the declaration contained the common counts and a special count on the insurance policy, numbered 7. Before the second trial a new seventh and an eighth count were filed. The seventh alleges that the plaintiff (appellee) was engaged in the business of carrying merchandise on scows in the port of Baltimore and procured from the defendant (appellant) insurance on twenty-seven scows for the period of a year from May 13th, 1899; that on the 29th of July, 1899, while the policy was in force, the plaintiff received on board of one of the scows included in the policy (scow 134) about 6144 bushels of corn which was to be carried from Canton Elevator No. 1 to the steamship “H. H. Meier," lying at Locust Point, and after the corn was laden on said scow, it was by reason of the perils insured against overturned and the corn lost. It is then alleged that the Insurance Company of North America, as assignee of I. M. Parr & Sons, recovered of the North German Lloyd Steamship Company, which owned the “H. H. Meier,” and had contracted with I. M. Parr & Sons to carry the corn from Baltimore to Bremen, the value of the corn, under a decree of the United States District Court; that the Elbarge Transfer Company which had contracted with the North German Lloyd Company to carry the corn from the elevator to the steamship was required to pay the North German Lloyd Company the value of the corn, and that the plaintiff, which had contracted with the Elbarge Transfer Company to carry ²⁴⁵ the corn, was required on account of said decree to.pay that company the sum of $2,500.

The amount of the insurance on merchandise on this scow of the appellee was $2,000 and it sued for that amount, with interest. The eighth count is the same in substance as the seventh, excepting it does not refer to the decree of the United States Court. In addition to the general issue pleas, the defendant filed three special pleas to the seventh and eighth counts which are numbered 3, 4 and 5. The third alleged that “the loss in said seventh count of said declaration mentioned” did'not occur by reason of any of the adventures or perils in said policy of insurance mentioned and insured against, but by reason of the unseaworthiness of the said scow, which existed at the commencement of the risk and continued to the time of the loss; the fourth alleged that at the time of the loss the plaintiff had no insurable interest in the goods mentioned; and the fifth alleged that at the time of the loss the scow was not in the service of the plaintiff but had been hired to the Elbarge Transfer Company, which at the time was carrying the goods and the plaintiff was not responsible for the safe carriage of them and the loss is not such as is payable under the policy.

The trial resulted in a verdict for the plaintiff of $2,500 — being the amount of the insurance, with interest allowed by the jury. 1. There are two bills of exceptions in the record — the first presenting the ruling of the lower Court on a question of evidence and the second embracing the rulings on the prayers. Mr. Hilken, a member of the firm of A. Schumacher and Company, agents for the North German Lloyd, was asked whether his firm paid to the Insurance Company of North America the value of this corn, to which he replied; “Yes sir, we were sued for the value of this corn, and we paid the amount.” We see no valid objection to the admission of that evidence. The record states it was objected to “because this testimony was not followed up by an offer of the record of the suit under which such payment was made.” It is said on behalf of the appellant that unless the record was “produced and showed that it was binding on those who successively made ²⁴⁶ payment one to the other, these other payments were merely voluntary and could not be a loss under defendant’s policy,” but manifestly this was not correct.

In the first place the record of the suit of the Insurance Company of North America against the North German Lloyd would not necessarily show that the plantiff was .bound by the decree in the admiralty proceeding, as it was not necessary for it to be a party of record. But regardless of that, the Court could not control the order in which the plaintiff offered its proof. ‘‘A party cannot offer all his evidence at the same moment; and when he tenders evidence legal and material to the issue, it is the duty pf the Court to receive it, and it cannot require him to state in advance what other proof he intends to offer.” Patterson v. Crowther 70 Md. 132 . The payment of the money was one of the issues made by the pleadings, and in the eighth count, as we have seen, the decree was not mentioned, although it was alleged that the North German Lloyd Company had paid the value of the corn to the Insurance Company of North America, which was subrogated to the rights of the owner. But inasmuch as by the defendant’s ninth prayer the jury was instructed that there was no legally sufficient evidence that the plaintiff had paid any sum of money on account of the decree, and therefore the plaintiff was not entitled to recover under the seventh count of the declaration, it is not perceived how the defendant could have been injured' because the plaintiff did not offer to follow up the testimony of Mr. Hilken by introducing the record of that suit, especially as we said in the former appeal that “any recovery from the appellee (the assurance company) by the appellant would not be on the theory of reimbursing the latter for what it would have to pay as the result of the decree in the admiralty proceedings — there was no remedy over against the appellee by reason of that suit, but if liable at all it was on the contract of insurance.” It'was proper to prove that the owners of the corn had been paid for its loss and to trace the payments to the Towing Company, and the question objected to was one of the links of evidence on that subject.' ²⁴⁷ 2.

In passing on the prayers we will follow the order adopted at the argument by the appellant and will now consider its first prayer'which raises the question as to whether there was double insurance. It was to the effect that inasmuch as the corn was covered by a policy of insurance issued by the Insurance Company of North America to I. M. Parr & Sons, and said policy was prior in date to that sued on in this case, and that company paid the owners of the corn its full value,-therefore under the terms and conditions of this policy the plaintiff was not entitled to recover, under the pleadings. This policy was issued “To Chesapeake Lighterage and Towing Co., on account of whom it concerns,” and it is contended that as such a policy enures to the benefit of the owner there was double insurance. The. clause in reference to other insurance is : “That if the said assured shall have made any other insurance upon the property aforesaid, prior in day of date to this policy, then the said Western Assurance Company shall be answerable only for so much as the amount of such prior insurance may be deficient towards fully covering the property insured;” etc. The appellant relies on the case of Fire Insurance Association v. Merchants' and Miners' Trans.

Co., 66 Md. 339, as conclusive of the question, but we do not so regard it. The Transportation Company had stored cotton in the freight sheds of a railway company, awaiting vessels to carry it on to its destination and insured it against loss by fire. A fire occurred which destroyed or injured a large part of it. It was shown that by the terms of the bill of lading under which the Transportation Company received the cotton, it was expressly exempted “from loss by fire, from any cause on land or water,” and, as was said in the opinion, “consequently they were not liable over to the owners for this loss.” Before that suit was brought all charges and expenses due the Transportation Company had been paid and it had no interest of its own in the. cotton, except to the extent of those charges and expenses.

This Court held that the insurance of the Transportation Company “for account of whom it may con ²⁴⁸ cern’ ’ enabled it to recover the money for the benefit of the owners of the cotton, upon their adoption of the insurance, and said “that extrinsic evidence may be adduced to show who was in fact the party concerned, and any one having title to the property at the time of loss may, by adoption of the contract, avail himself of its advantages, provided it be shown that his interest was within the contemplation of the party procuring the insurance.” That being an insurance against loss or damage by fire, and the Transportation Company not being liable for loss by fire, and not owning any of the cotton, the Court said it would be difficult to believe that the Transportation Company would have insured the cotton to an amount not exceeding $50,000, “for account of whom it may concern,” without intending to protect thereby the interest of the owners, and held that there was sufficient evidence to warrant a jury in finding such intent. The Court also found that there was enough in the record to authorize the lower Court to submit to the jury the question of the adoption of the policy by the owners of the cotton. It will thus be seen that the facts of that case differ radically from those in the one now being considered, for here the Towing Company was responsible, as a common carrier, for the loss of the corn, and there is no evidence whatever to show that I. M. Parr & Sons ever adopted this policy of insurance, or made any claim to it, or that it was “within the contemplation of the party procuring the insurance” that any owner of the property was to receive the insurance while the appellee was itself liable as a common carrier. There can be no doubt that the appellee had an insurable interest in the corn for its own benefit — in order to indemnify itself against a possible liability for loss, as a common carrier.

In Phœnix Ins. Co. v. Erie Trans. Co., 117 U. S. 312 , it was said “a common carrier, a warehouseman or a wharfinger, whether liable by law or custom to the same extent as an insurer or only for his own negligence, may, in order to protect himself against his own responsibility, as well as to secure his lien, cause the goods in his custody to be insured to their full ²⁴⁹ value, and the policy need not specify the nature of his interest. ” See also Crowley v. Cohn, 3 Barn. & Ad. 478; Home Ins. Co. v. R. R. Co., 71 Minn. 296 ; Savage v. Corn Exchange Ins.

Co., 36 N. Y. 655 ; 19 Am. & Eng. Ency. of Law, 946. The cases show that it is not necessary for the policy to state that it was one of indemnity, and there is no reason why it should under such circumstances as we