Merchants' Mutual Insurance Company v. Baring

ERROR to the Circuit Court for the District of Louisiana; in which court Baring Brothers & Co. sued the Merchants' Mutual Insurance Company, of New Orleans, for advances made by them, as the declaration in the case alleged, to the master and owners of the British bark Fanny, for the purposes of her equipment and to procure a cargo for the vessel, in a voyage from Cadiz, in Spain, to the port of New Orleans. The plaintiffs also alleged that through their agents they had obtained a policy of insurance, dated December 6th, 1867, from defendants. The insurance company above named insuring the hull of the bark for $9000, in the name of the said agents, containing the clauses, 'on account of whom it may concern' and 'lost or not lost,' for the protection of those advances.

They further alleged that the bark, though well officered, manned, and equipped, suffered so much on the voyage, from the violence of weather, that the master found it necessary to put into a port of Cuba for such repairs as would enable him to prosecute the voyage; that their agents gave due notice of those facts to the president of the insurance company; that the company sent an agent to the port to take charge of the interest of all concerned; and that from the moment the agent arrived there he took exclusive charge of the repairs of the vessel and caused such work to be performed as he thought necessary; that he obtained from their agent there the funds necessary to pay for all such repairs; that the bark completed her voyage; that after her arrival at the port of destination an adjustment of averages was made by the adjusters of averages in that port for costs, charges, and damages in making such repairs, and that in the said adjustment they, the plaintiffs, were awarded $3507 on the said policy of insurance.

The defendants filed an answer (equivalent to the general issue in an action of assumpsit) and a special plea that the bark was unseaworthy.

The insurance company made three prayers for instruction:

(1.) That if the evidence showed that the insurable interest of the plaintiffs was a bottomry bond on the bark, and that the vessel arrived in safety at the port of destination, the jury should find for the defendants.

(2.) That it is only when the vessel insured is lost that the assured on a bottomry bond can recover, and that if the proof was that there was no loss or destruction of the bark, the jury should find for the defendants, if the plaintiffs had insured on a bottomry bond.

(3.) That the defendants were not bound to tender back the premiums of insurance before availing themselves of any defence against the validity of the policy of insurance, or for its avoidance by a subsequent cause.

Verdict and judgment went for the plaintiffs for the amount awarded by the average adjusters. Exceptions were taken by the defendants to the rulings of the court in refusing to instruct the jury as they requested.

Nothing appeared in the record except the declaration, the answer, the verdict and judgment, the three bills of exceptions to the rulings of the court in refusing to instruct the jury as requested, neither of which contained any report of the evidence, and the motion for new trial, which merely stated that the verdict of the jury was contrary to law and the evidence, without giving any statement of the evidence which was submitted to the jury.

Evidence to show that the action was founded upon a bottomry bond, or that such a bond was offered in evidence, or introduced at the trial, was entirely wanting, nor was there evidence, direct or circumstantial, to show that such a question as that involved in the third prayer for instruction arose or could have arisen in the case, or that the instruction was a proper one, in any view of the controversy, for the consideration of the jury.

Viewed in the light of these facts (as this court said that the case should be viewed), the several rulings of the court below in refusing to grant the three prayers for instruction were considered by this court together.

Mr. W. M. Evarts, for the plaintiffs in error; Messrs. P. Phillips and D. G. Campbell, contra.

Mr. Justice CLIFFORD, having stated the case, delivered the opinion of the court.