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 testimony from the consideration of the jury; after it has been admitted without objection made when offered, or within a reasonable time thereafter. But we are relieved from the necessity of deciding that question in this case, because according to our construction of the written contract, there was no deviation from the voyage covered by the memorandum of insurance. ’Where the course of •the voyage to he taken by the vessel is intended to bo restricted to a prescribed track, it must be so inserted. This was not done in this instance. By the words of the memorandum, the voyage covered hy the contract is described-simply as “ from Baltimore to New York,” without any restrictive words; it is clear that in such case the iter navis, the course of the voyage, is left free.

By the terms of the policy made on the 7th of May, the particular voyage thereby insured, was described ns “via the Chesapeake and Delaware Canal.to Delaware Bay, and from thence by sea to New York.” But the policy made on the 4th of June is a new and distinct contract, covering another and' different voyage. The effect of endorsing it upon the former policy and referring thereto, was to make the new contract subject to the terms and stipulations contained in the policy, except in so far as they varied by the *319 terms of the endorsement. And wo think it very clear, that the endorsement differs from the original policy in this essential particular. It describes merely the terminus- a quo, and the terminus ad quern, without any restrictive words prescribing the course of the voyage, or any reference to the restrictions in that respect imposed by tbe former contract.

In our opinion, therefore, there was no error in refusing the sixth and seventh prayers.

2nd. We now proceed to examine the second ground of defence, involving the construction and effect of the “steam boat clause,” incorporated in the contract of the 4th of June. This is presented by the fifth prayer, which asked the Court to say that under that clause tbe defendants were not liable under the policy upon the vessel, if the jury should find “that any breakage or derangement of the machinery of said steamer, or any part thereof, created a necessity for her being run ashore, and that she was, because of such necessity, run ashore and lost. ’ ’

This is the first time the appellate Court of this State has been called on to construe this clause in a policy of insurance, and after giving the subject our most careful consideration, we are of opinion that the construction put upon this part of the contract, by tbe Court bolow, was correct, and that the fifth prayer was properly refused.

The appellants claim that under this clause they are exempt from liability for tbe loss of the vessel, if that loss can bo traced back to the breakage of the machinery as its first cause, even though the immediate or proximate cause of the loss was the stranding of the vessel. To adopt this construction would, we think, as has been argued by the appellees, “be giving to the' language of the clause a broader meaning than the words used naturally import.”

It was conceded in the argument that the loss occurred from perils clearly covered by thegoneral terms of the policy, and the effort is, to exempt the underwriters from liability by force of the exceptions contained in the “steam boat *320 clause.” It must appear that the case presented by the prayer is within the terms and meaning of the exception, fairly and rationally construed according to its language, taking the whole clause together.

(Decided April 15th, 1864.)

On this subject we have been referred to a recent decision by the Supreme Court of Pennsylvania, in the case of The Western Insurance Company vs. Cropper, 32 Pen. Rep., 351, in which the same clause, in a policy of insurance, came before that Court for examination.

We refer to the very clear and satisfactory opinion of the Court in 'that case, delivered by Judge Strong, as containing a brief but complete argument showing the grounds upon wdiich the Court based its construction of the clause in question. We are thus saved the necessity of discussing the question at length, preferring to adopt the conclusion arrived at by that learned Court, as entirely consonant with our' own judgment, and which we consider is fully supported by the reasons stated in Judge Strong’s opinion.

Judgment affirmed,.