Imágenes de páginas
PDF
EPUB

habit of transmitting checks drawn on other banks, to those banks for collection, as affecting the present question. That evidence hardly comes up to the requirement of this court in regard to proof of a common-law custom, as laid down in Turner v. Dawson, 50 Ill. 85, and subsequent decisions of like import; but if it did, that custom does not include cases in which certified checks are sent for collection to the banks by which they are certified. In the case to which the evidence relates there is no primary liability on the part of the bank to which the check is sent; but in the case of a certified check the bank is primarily liable for its payment. So far as affects the present question, its position is precisely what it is where it makes its promissory note, bond, or other evidence of original indebtedness. Bickford v. First Nat. Bank, 42 Ill. 242, et seq.

same

The same person cannot be both debtor and creditor at the same time, and in respect of the same debt. How then can he, who is debtor, be at the same time, and in respect of the debt, the disinterested agent of the creditor? Can it be said to be reasonable care, in selecting an agent, to select one known to be interested against the principal-to place the principal entirely in the hands of his adversary? The interest of the creditor, when his debt is failing, is that steps be taken promptly, and prosecuted with vigor, to collect his debt. But at such a time the inclination of the creditor quite often, and it may be, sometimes his interest too, is to procrastinate. The debtor may often be interested in bringing about a compromise with his creditors whereby his debts may be discharged for less than their face. But the creditor, whose debt can all be collected by legal proceedings can never be interested in producing that result. Surely it could not be held reasonable care and diligence in an agent holding for collection the promissory note given by one individual to another individual, to send the promissory note to the maker, trusting to him to make payment, delay it, or destroy the evidences of indebtedness, and repudiate the transaction, as his conscience might permit. If this would not be held to be reasonable care and diligence, why should the same conduct be held to be reasonable care and diligence when applied to a bank?

maker of the note. Its liability was solely that of an agent for collection.

In the recent case of Merchants' Nat. Bank v. Goodman, 2 Atl. Rep. 687, the Supreme Court of Pennsylvania however lay down the rule directly the opposite of that laid down by the New York Court of Appeals in Indig v. City Bank. The suit there involved the question whether the bank on which the check was drawn was a suitable agent to which to transmit the check for collection. And the court held that it was not. The court among other things said: "We think the principle may be stated as a true one, as the plaintiff's counsel have presented it, that no firm, bank corporation or individual can be deemed a suitable agent in contemplation of law, to enforce in behalf of another a claim against itself. The only safe rule is to hold that an agent with whom a check or bill is deposited for collection must transmit it to a suitable agent, to demand payment in such manner that no loss can happen to any party, whether he is depositor and indorser or the indorsee and holder. * We interpret the cases to which we have referred as establishing the rule of transmission to a suitable correspondent or agent, to mean that such suitable agent must, from the nature of the case, be some one other than the party who is to make the payment. By no other rule can the rights of indorsers be protected, if it is the interest of the party who is to make payment to hinder, postpone or defeat payment. This imposes no hardship on the institution undertaking to transmit for collection, which can always protect itself by stipulating that special instructions by the depositor shall be given, which will save the collecting bank from all risk or peril."

*

[blocks in formation]

SUPREME COURT OF INDIANA, JUNE 5, 1886.

It is to be borne in mind appellant was not compelled to accept this check for collection. It assumed the burden voluntarily, and it ought to have known that the certified check was not delivered to it merely to have it exchanged for the draft of Rice & Messmore on some other bank; for if this had been desired, it ought to have known that appellee would have obtained such a draft instead of the certified check. If appellant had no correspendent or agent at Cadillac, through whom to make collection, it should have so informed appellee, and then acted on the directions of appellee. This would have imposed no hardship, and APPEAL from Marion Circuit Court. The opinion

would have protected all. It is true that when appellee placed the check in the hands of appellant, it was to be presumed that it was intended that appellant should collect by the ordinary and usual mode of collecting in such cases; but neither from facts proved, nor as a matter of law, was it to be inferred that the check was to be surrendered to Rice & Messmore to use their pleasure as to the time and manner of payment and the disposition of the check. If appellant was willing to take the step without special stipulations, appellee was authorized to assume therefrom that it was able to collect, and that it had a proper agent through whom to do it promptly.

Indig v. City Bank, 80 N. Y. 106, cited by counsel for appellant, is entirely different it its material facts from that in the present case, as we conceive. There the bank owed no primary duty to pay. The note was sent to it for collection, not from itself, but from the

SANDERS V. WeElburg.* Where a surety pays a judgment against his principal, and upon execution sale procured by himself purchases the principal's property at a comparatively nominal price, his co-surety may show, in bar of an action for contribution, that such property, at its fair value, was more than sufficient to satisfy such judgment.

states the facts.

A. F. Denny, for appellant.
Ayres & Brown, for appellee.

HowK, C. J. This was a claim in favor of the appellant, and against the appellee as the executrix of the last will of Henry Weelburg, deceased. The claim was founded on a judgment which it was alleged that one Will F. A. Bernhamer, administrator, etc, recovered on the 29th day of January, 1879, in the Marion Superior Court, against one Frederick Weelburg, as principal, and against the appellant and the appellee, executrix, etc., as co-sureties, for the sum of $1,957.20, and bearing interest at eight per cent per annum. The appellant stated in his claim or complaint, that as one of such co-sureties, on and before the 9th day of April, 1879, be paid on said judgment the aggregate sum of

*7 N. E. Rep. 573.

$1.811.50, "in full of the balance of said judgment, interest and costs," and the execution then outstanding as to him was returned satisfied; that on the 10th day of April, 1879, an execution was issued on said judgment in favor of the appellant as such co-surety, and delivered to the sheriff of Marion county; that by virtue of said execution the sheriff, on April 16, 1879, levied on certain property of Frederick Weelburg, the principal in said judgment, which property the sheriff, on April 26, 1879, sold to the appellant for the sum of $378, of which sum, after the payment of costs, there was credited on the judgment the sum of $359.52; that | on May 1, 1879, by virtue of the same execution, the sheriff levied on certain real estate and leasehold interests of Frederick Weelburg, the principal in said judgment, which property the sheriff, on May 31, 1879, sold to the appellant for $50, of which sum, after the payment of costs, there was credited on the judgment the sum of $43.20; that on July 14, 1879, the sheriff sold, on the same execution, to the appellant, for the sum of $28.29, certain personal property of Frederick Weelburg, the principal in said judgment, of which sum $21 was credited on the judgment; and that on April 2, 1880, the execution was returned, "No other property found of Frederick Weelburg, principal in the judgment, whereon to levy."

Upon the foregoing facts, the appellant claimed that there was due him, by way of contribution from the appellee, executrix, etc., as his co-surety in the abovedescribed judgment, the sum of $700, and eight per cent per annum interest thereon after the 13th day of March, 1879. The cause was tried by a jury, and a general verdict was returned for the appellee, the defendant below. Over the appellant's motions for judgment in his favor on the special findings of the jury, and for a new trial, the court rendered judgment for appellee on the general verdict.

The appellant has assigned as errors the following decisions of the Circuit Court: (1) In permitting the cause to be tried by a jury, over his objections; (2) in overruling his motion for judgment in his favor on the special findings of the jury, notwithstanding their general verdict; and (3) in overruling his motion for a new trial. We will consider and decide the several questions presented by these alleged errors in the order of their statement.

[Omitting other points.]

3. The important and controlling questions in this cause arise under the third alleged error, namely, the overruling of appellant's motion for a new trial. In this motion many causes are assigned for such new trial, consisting chiefly of alleged errors of law occurring at the trial. There is but little, if any, controversy between the parties and their counsel, as we understand them, in regard to the actual facts of this case; but the controverted and disputed questions between them are, for the most part, in relation to the rules of law or equity which are applicable to such facts, and which must govern and determine their rights and liabilities respectively. We will consider and decide these controverted and disputed questions without special reference to any of the causes assigned by appellant in his motion for a new trial.

Appellant shows in his complaint, as we have seen, that he and the appellee were co-sureties of one Frederick Weelburg, as principal debtor, in a certain judgment rendered against all of them on January 29, 1879, in and by the Superior Court of Marion county; that on April 9, 1879, appellant paid the balance then due of such judgment, interest and costs, to-wit, the sum of $1.811.50; that on the next day, April 10, 1879, an execution was issued on such judgment in favor of the appellant, as such co-surety, and delivered to the sheriff of Marion county; that by virtue of such execution such sheriff offered and sold to appellant certain prop

[ocr errors]

erty of the principal debtor, on April 26, 1879, for $378, and on May 31, 1879, certain real estate and leasehold interests of such principal debtor for $50, and on July 14, 1879, certain personal property of the principal in such judgment for $28.29; and that on April 2, 1880, such execution was returned, "No other property found of Frederick Weelburg, principal in such judgment, whereon to levy." Ou such several sales to appellant his complaint shows that he paid the costs, and credited the remainder of his several bids on the judgment. After his several purchases of the property of Frederick Weelburg, principal in such judgment, and after he had credited the judgment with the net amounts of his several bids for such property, as stated in his complaint, appellant filed his claim herein to recover of the appellee, as his co-surety in such judgment, by way of contribution, the sum of $700, and in terest thereon at the rate of eight per cent per annum from and after March 13, 1879.

It is claimed on behalf of the appellant that he purchased the property of the principal in the judgment, at public sales thereof by the sheriff of the county, where all parties, the appellee included, had the right to appear and bid therefor; that he had the lawful right to purchase such property at such sales, and as no one would or did bid more therefor than he, to purchase the same at and for the amounts of his several bids, without regard to the actual value thereof; and that having so purchased such property, he cannot be required to account therefor, even to the appellee, as his co-surety, at its actual value, or at any greater value than the aggregate amount of his several bids. On the other hand, it is claimed on behalf of the appellee, that as she was the co-surety of appellant in such judgment, equity, good conscience, and fair dealing exacted of him the utmost good faith in his transactions with her in relation to the judgment, and in connection with the property of the principal in such judgment; that as the judgment was a common burden to her and appellant as such co-sureties, so the property of the principal in the judgment became and was a common fund for the benefit and protection alike of each and both of them; that by suing out and delivering to the sheriff of the county an execution on such judgment in appellant's favor, he acquired a security for the payment of the judgment by the lien of the execution on the property of the principal therein, which security inured to the benefit and for the protection of the appellee as his co-surety; that by appellant's acts in procuring forced sales of such prop erty of the principal in the judginent, and in becoming a purchaser thereof at prices relatively nominal, the value of such security became and was largely depreciated, if not wholly lost; and that by means of the premises appellant became and was justly chargeable with the fair and reasonable value of such security to the appellee, as his co-surety, in the equitable adjustment of appellant's claim herein to contribution.

These conflicting claims of the parties respectively. involve, as it seems to us, the entire merits of the controversy in this cause. If appellant is right in his claim or contention, as we have heretofore stated it, the general verdict for appellee is wrong, and the judgment thereon cannot stand, but must be reversed, because the record before us clearly shows that the case was tried below upon a theory which antagonizes and is irreconcilable with appellant's claim or contention. If, on the other hand, appellee's claim or contention, as it is heretofore stated, is the correct one, as we think it is, the general verdict is right upon the evidence, and the judgment below must be affirmed.

It is abundantly shown by the evidence in the record that the fair and reasonable value of the property of the principal in the judgment, which was levied upon and sold by the sheriff upon the execution in favor of

appellant, and of which he became the purchaser, as aforesaid, largely exceeded in the aggregate the full amount due him on such judgment, of principal, interest and costs. Appellant having fully paid and satisfied the judgment to the judgment creditor or plaintiff, by means of such payment, acquired at the time a cause of action against the appellee as his cosurety in such judgment; but in his suit on such cause of action it is clear, we think that under our law he could not recover of the appellee any more than she was "equitably bound to pay." Prima facie, appellee, as the co-surety of appellant, was liable to him for the one-half of the sum paid by him to the judgment plaintiff in satisfaction of such judgment; but this prima facie liability was subject to reduction by whatever sums could be realized from the property of the principal in such judgment. The property of the principal in the judgment was a common fund for the benefit and protection of both the sureties alike, the appellee as well as the appellant. By this payment of the judgment to the judgment plaintiff, appellant became and was practically at least the owner thereof. and was fully authorized to sue out execution thereon for his own use under the provisions of section 1214, Rev. Stat. 1881. The judgment was then a lien on the real estate and chattels real of the principal therein; aud when on the next day after his payment of such judgment, appellant sued out an execution thereon in his own favor, and delivered the same to the sheriff of the county, he thereby acquired a valid lien on all the personal property of such principal. These liens upon the real and personal property of the principal in the judgment were a security which appellant had acquired and held as aforesaid; but such security inured in equity to the benefit and for the protection of the appellee as the co-surety of appellant in such judgment.

In Sheld. Subr., § 143, the law on the subject under consideration is thus stated: "When one of two or more sureties obtains, in any manner, a security for the payment of the debt, he does this for the benefit of all the sureties. He is a trustee for his co-sureties as to such security, and is held for them to the duties which arise from that relation, and must do no act, nor voluntarily omit to do any act, by which such security will be depreciated or lost; but must faithfully apply it to the payment of the debt, or he will be chargeable to his co-sureties with the amount of the security in the adjustment of their proportions of the debt."

The language quoted and the doctrine declared are fully supported by the numerous authorities cited in the foot-notes by the learned author.

In Hall v. Robinson, 8 Ired. 56, it was held by the Supreme Court of North Carolina that an action for contribution is an equitable one, "in which nothing can be recovered but what, ex æquo et bono, the defendant ought to pay." The court say: "The relief between co-sureties in equity proceeds upon the maxim that equality is equity; and that maxim is but a principle of the simplest natural justice. plain corollary from it that when two or more embark in the common risk of being sureties for another, and one of them subsequently obtains from the principal an indemnity or counter-security to any extent, it inures to the benefit of all."

Is is a

In Owen v. McGehee, 61 Ala. 440, it was held by the Supreme Court, that whenever persons stand in such relation to a common burden that contribution between them may be compelled, neither can speculate on the common liability, and whatever benefits or advantages are acquired by one, in dealings with the common creditor, inure equally to the benefit of all.

In Schmidt v. Coulter, 6 Minn. 492, it was held by the Supreme Court of Minnesota that where one of two or more co-sureties obtains, in any manner, a security

for the debt, he holds it for the benefit of all the other sureties; and if by any act or omission on his part such security becomes depreciated or lost, he will be chargeable with the amount of such security in an adjustment with his co-sureties of their several propor tions of the debt.

So in Comegys v. State Bank, 6 Ind 357, it was held by this court that sureties are entitled to the benefit of all securities which have been taken by any one of them to indemnify himself against their joint liabili ties. Story Eq. Jur. (13th ed.), § 499, et seq.

Where one surety obtains a security, it inures at once to the benefit alike of himself and his co-surety. He cannot deal with such security to his own advantage, and to the prejudice of his co-surety, without consulting the latter and without his assent. He occupies the position of a trustee for his co-surety, and cannot deal with the fund, to the prejudice of the latter, without his authority or consent. In such case, where the surety has it in his power, for his own advantage, to sacrifice the common fund, which in good conscience he is bound to protect, the general doctrine is that he will be permitted to avail himself of any such advantage to his own profit, and to the loss and detriment of his co-surety. We do not decide in this case that appellant did not have the right to sue out execution on the judgment, and procure the sale by the sheriff of the principal's property, for this right he clearly had. What we do decide is, that if the appellant. at such sales, purchased the property of the principal at comparatively nominal prices, and then sued his cosurety for contribution, she had the right, in bar of such suit, to show, as she did, that such property, at its fair value, was more than sufficient to satisfy such judgment.

Applying the law as we have stated it to the case under consideration, as made by the evidence appearing in the record, we are of opinion that the jury reached a right conclusion in their general verdict. The cause seems to have been fairly tried on its merits, and a right result was arrived at, we think, in the Circuit Court. In such a case, errors in relation to the instructions, if any were committed, would not authorize the reversal of the judgment; for our statute imperatively requires "where it shall appear to the court that the merits of the cause have been fairly tried and determined in the court below," that the judgment shall not "be stayed or reversed in whole or in part." Sec. 558, Rev. Stat. 1881; Norris v. Casel, 90 Ind. 143; Ledford v. Ledford, 95 id. 283; Daniels v. McGinnis, 97 id. 549; Perry v. Makemson, 103 id. 300.

Our conclusion is that the court committed no available error in overruling defendant's motion for a new trial in this cause.

The judgment is affirmed with costs.

INSURANCE-MARINE-INJURY TO DONKEY

ENGINE.

ENGLISH COURT OF APPEAL, MAY 23, 1886.

HAMILTON V. THAMES & MERSEY MARINE INS. Co.* A steamer was insured by a policy in the ordinary form on the ship and her machinery, including the donkey engine. The donkey engine was employed in the ordinary course of navigation in pumping water into the boilers, and in consequence of a screw valve which should have been open, being either by negligence or by accident closed, the water was forced into the air chamber of the donkey engine, which was split open.

*17 Q. B. Div. 195.

Held, by Lindley and Lopes, L.JJ. (Lord Esher, M. R., dissenting), that the injury was a peril insured against, under the general words of the policy.

by being fired into by mistake. It was held that the loss was covered by the general clause. Lord Ellenborough, C. J., said: "The extent and meaning of the

CTION on an insurance policy. The head-note general words have not yet been the immediate subshows the facts.

AC

Sir C. Russell, A. G., and Sir R. E. Webster, Q. C. (French, Q. C., and Synnott, with them), for defendants.

ject of any judicial construction in our courts of law. As they must be considered as introduced into the policy in furtherance of the objects of marine insurance, and may have the effect of extending a reasonable indemnity to many cases not distinctly covered

Cohen, Q. C., Myburgh, Q. C. (J. Gorell Barnes, with by the special words, they are entitled to be considthem), for plaintiffs.

LOPES, L. J. This action was brought by the plaintiffs to recover from the defendants a sum of 61. 58. for a loss under a policy upon the steamship Inchmaree. The facts are set out in a special case.

In consequence of undue pressure of air and water the chamber of the donkey engine burst. This donkey engine at the time was being used for the purposes of the voyage and in the ordinary course of navigation. The question is whether the bursting of the donkey engine was a peril insured against by the policy.

We are unable to distinguish this case from that of West India Telegraph Co. v. Home and Colonial Ins. Co., 6 Q. B. Div. 51. In that case it was held that the explosion of the boiler of a steamer was a peril insured against by a marine policy similar in form to the policy in this case. The facts in that case are very like the facts here. The ship was lying in port, and her master having received orders to proceed to sea, weighed anchor. After making some fifteen revolutions the engine was stopped to allow of the vessel's head canting round, and within a few minutes of the engine being so stopped the port boiler burst, gutting | the middle of the ship and blowing up her decks. Upon examination it was found that the bursting was due to the reduction of the shell of the boiler, and that such reduction was due chiefly to the action of bilge-water upon its external surface, and to the accumulation of sediment in the inside. Lord Selborne and Cockburn, C. J., held that the explosion was a peril within the general words with which the specification of the risks insured against includes: "And all other perils, losses and misfortunes that have or shall come to the subject-matter of this insurance." The present master of the rolls came to the same conclusion, but not by the same process of reasoning. The ground of his decision was that "fire" being one of the enumerated perils, explosion was so much ejusdem generis with fire as to come within the general words. He says "unless the word 'fire' had been one of the particular terms in this policy, I could not have seen that the loss by explosion was like any of the other perils which are enumerated."

We entirely agree with the judgment of Lord Selborne and Cockburn, C. J., but we venture to doubt if the master of the rolls is right in attaching so much importance to the mention of "fire" in the enumerated perils. We are of opinion that if the word had been omitted, the explosion would have been within the general words. On principle and on authority the judgment of Lord Selborne and Cockburn, C.J., seems right.

We assume that the bursting of the chamber of the donkey engine is not a "peril of the sea," and that it is not within the meaning of any other of the enumerated perils, but the question is whether it is covered by the concluding words: "All the perils, losses, and misfortunes that have or shall come to the hurt, detriment, or damage of the aforesaid subject-matter of insurance, or any part thereof."

It is material to consider what is the true construction to be placed on these general words.

In Cullen v. Butler, 5 M. & S. 461, the vessel was lost

ered as material and operative words, aud to have the due effect assigned to them in the construction of this instrument, and which will be done by allowing them to comprehend and cover other cases of marine damage of the like kind with those which are specially enumerated and occasioned by similar causes."

[ocr errors]

In Phillips v. Barber, 5 B. & A. 161, damage done to a vessel in a graving dock for repairs, by being blown over by the wind, was held within the general clause, and damage by the explosion of the boiler in Perrin v. Protector Ins. Co., 11 Ohio, 147, so also injury sustained by the accidental breaking or giving way of the tackle and supports, whereby the vessel was supported, in being moved from a dock where she had been hauled up for repairs. Deveaux v. J'Anson, 5 Bing. N. C. 519.

Surely if the cases above cited come within the general clase, it would be unreasonable to hold that a bursting of a part of the machinery connected with the motive power necessary for the navigation of the vessel was not covered. Lord Selborne said in West India Telegraph Co. v. Home and Colonial Ins. Co., 6 Q. B. Div. 51: "What the winds are to a sailing vessel, steam is to a steamer; and it is as reasonable that marine insurers should bear the risks incident to a navigation by that kind of power, whether from excess of pressure on the boiler or from defect of safety valves, or from neglect or mismanagement, making that dangerous which otherwise would not be so, as that they should bear losses occasioned by excessive pressure of winds and defects or mismanagement of a ship's sails or tackle." Every word quoted is applicable to this case. We have no hesitation in holding that the bursting of the chamber of the donkey engine used for the purposes of the voyage in the ordinary course of navigating the ship is ejusdem generis with a peril of the sea and a loss covered by the general clause.

If the ship had been a sailing ship, and a spar, when she was getting under sail in port, had fallen on the deck and had been broken, surely it would have been a loss within the policy. We are unable to distinguish that case from the present.

We do not think that the general words include all losses that may happen during a voyage by accident, but we think the general words cover all losses incident to the navigation of a vessel during her voyage, inclusive of losses arising from negligence or improper management, because they are ejusdem generis with perils of the sea.

In our opinion the judgment of the court below was right, and the appeal must be dismissed. Appeal dismissed.

LORD ESHER, M. R. I have the misfortune, I understand, of differing from my brethren on the question of insurance law raised in this case.

There was an insurance on the ship and machinery separately insured, the policy being in the form of that in the case of West India Telegraph Co. v. Home and Colonial Ins. Co., 6 Q. B. Div. 61. An injury happened to part of the machinery, and it has been held that the plaintiffs are entitled to revover on the ground that there was a loss within the terms of the policy. It appears that there was a donkey engine, one employment of which was to work a donkey pump, to

pump water from the sea, or otherwise, into the boiler. Now the donkey engine was working the donkey pump, water was taken up into the water chamber of the pump, and by reason of a valve being stopped (whether by accident or negligence is wholly immaterial), the pressure of the water upon the air chamber split it. Nothing happened to the donkey engine, there was no escape of steam, there was nothing but the pressure of cold water splitting the air chamber, and that is the only damage done.

The question is whether that is a loss which can be brought within the terms of the policy. Now the policy is very much in the ordinary form, it has specially enumerated perils, the first of which is perils of the sea; it has a great many other enumerated perils, and then it has the ordinary general clause as to other perils. Now what is the true construction of such a policy in England? It seems to me that the rule of construction has been laid down and acknowledged and admitted to be clear law from the time of Lord Ellenborough downward. Lord Ellenborough construed the term "perils of the sea," and held that those words do not include in an English policy all accidents which may happen on the sea to the ship, or all accidents which may happen in the course of the navigation, but are confined to perils which are caused by more than usual force of the sea, or the wind, or the elements acting upon the ship. That is "perils of the sea;" and an accident to a ship or goods by "perils of the sea" must be the immediate result of some action of the elements. In order to cover other perils other words were added to the policy from time to time, and always at the end there was the larger clause.

The next rule of construction which was laid down by Lord Ellenborough was that those general words cannot be construed as if they stood alone, that they only include accidents, not precisely and exactly described by the particular words, but accidents of the same kind as one or other of those enumerated. That being so, the only question is whether as a matter of fact anybody can say that this accident is of the same kind as any of the accidents specifically mentioned in the policy.

Now in the case of West India Telegraph Co. v. Home and Colonial Ins. Co., 6 Q. B. Div. 51, the accident seems to me to have been materially different. The accident there was that the steam in the boilers burst them, and so the steam escaped into the ship, blew up the deck, and wrecked the ship. There, with considerable difficulty, I came to the conclusion that an explosion of steam getting into the ship and destroying the ship was sufficiently like the effects of fire upon a ship-and fire was one of the terms of the policy-to bring the case within the general words. I am perfectly willing to say, that in coming to that conclusion of fact I went to the verge of imagination. I should not be surprised, on the contrary, I think I should willingly acquiesce, if that view of that case were overruled. But this is no more like an explosion to my mind than if you were to kick a hole in the boiler. Here there is nothing but the force of the water pumped in, and there being no escape, bursting the chamber, and the injury to the chamber is just the same as if it were broken from the outside. The water might have been forced into the chamber without any steam being used at all; by a pump used with a handle or a wheel, or somehow by hand labor, and it would have had precisely the same effect. How that can, within the reasonable imagination of anybody, be likened to an accident happening to a ship by reason of the elements I cannot see. It seems to me to be wholly unlike the perils of the sea" as hitherto construed. If you construed the words "perils of the sea" to include any accident which may happen to a ship in the ordinary course of navigation, of course this case is

within those terms, but so to construe those words is to construe them in a way which has been over and over again overruled.

Then it was argued that the general words cover all Josses incident to the navigation of a vessel during the voyage. If that be true, then it seems to me that all the preceding words in the policy might as well be struck out as of no effect. I cannot accede to that view. Then it is said that the general words cover all losses incident to the navigation of the vessel during the voyage, because all losses incident to the navigation of the vessel during the voyage are of the same kind as losses by "perils of the sea." It seems to me that this is to break away from the recognized, decided meaning of the words "perils of the sea."

For these reasons I cannot agree in this case, which to my mind goes much further than the case of West India Telegraph Co. v. Home and Colonial Ins. Co., 6 Q. B. Div. 51, that there was a loss within any of the terms of the policy. In my opinion therefore that case does not cover the present, and the assured have suffered a loss which is not within the policy.

I will say one word as to what the court are being enticed into doing. It is well known that the underwriters and the assured are neither of them willing to alter the words of the policy, and they, doubting whether the words will cover any particular case, try to entice the court into altering the interpretation of the words of the policy by altering the rules of construction, which are as applicable to a policy of insurance as to every other contract. I decline to go one step in that direction. If parties want to cover new losses, it is their business to find the words which are to cover them, and they have no right to try to draw the courts into a process of interpretation which has been ignored and declined as long as I can recollect any thing about the law.

[See 33 ALB. LAW JOUR. 389.-ED.]

CARRIER-PASSENGER-BAGGAGE DELIVERED TO PORTER TO ACCOMPANY PASSENGER.

ENGLISH COURT OF APPEAL, APRIL 13, 1886.

BUNCH V. GREAT WESTERN RY. Co.* The female plaintiff arrived at a station on the defendants' railway forty minutes before the starting time of her train. She had a bag and two other articles of luggage, which a porter took into the station. She saw the two latter labelled. and told the porter she wished the bag to be put in the train with her, and asked if it would be safe to leave it with him. He replied that it would be quite safe, and she then weut to meet her husband and get a ticket. They returned together in ten minutes and found that the two labelled articles had been put into the van but that the bag was not forthcoming. At the trial the judge found that the porter had been negligent in not being in readiness to put the bag into the carriage on the return of the female plaintiff, and that the defendants were liable for its loss. Held (by Lord Esher, M. R., and Lindley, L. J., Lopes, L. J., dissentiente), that there was evidence to warrant the judge in finding that the bag was intrusted to the porter for the purpose of the transit, and not to be taken charge of while the journey was suspended, and that he was acting within the scope of his authority in taking charge of it.

ACTION for lost baggage. The opinion states the

case.

C. C. Scott, for plaintiffs.
R. S. Wright, for defendants.

*17 Q. B. Div. 215.

« AnteriorContinuar »