Orient Mutual Insurance v. J. Reymershoffer's Sons

Stayton, Associate Justice.— This suit was brought by Reymershoffer’s Sons for the use of Fernando Chao, against the Orient Mutual Insurance Co., to recover the value of eighty barrels of honey, alleged to have been insured under the company’s open policy, and to have been lost in a storm at sea from the vessel on which the same was shipped, while in transit from Tuspan, Mexico, to Galveston, Texas. There was no question made as to the execution of the policy, and memorandum applying the cargo of which the honey was a part, nor as to the loss; but it was claimed that the honey was carried upon the deck of the vessel, and on that account liability therefor was denied. The loss occurred in August or September, 1819. The policy was in the usual form, and contained no stipulation as to the particular manner in which the goods should be stowed, but in terms applied to the property lost, which was specified in the bill of lading and application as “goods laden or to be laden on board,” etc. There was a trial by a jury, and a verdict for plaintiffs, from w;hich this appeal is prosecuted. On the trial the appellant asked the court to instruct the jury as follows: “If you find from the evidence that honey is carried on deck and under deck in the trade between Tuspan and Galveston, you are instructed that this does not constitute a valid usage binding on the defendant under its open policy for goods carried on deck. The fact that it is frequently so carried is not sufficient, unless it is shown to your satisfaction that the defendant or its agent knew the fact; ” to which the court added the [237] following words: “or that the usage was so general as to raise a presumption of such knowledge by all persons engaged in that trade,” and then gave the same with the addenda. This is assigned as error. There was testimony tending to show that vessels carrying between Tuspan and Galveston were small and generally carried honey on deck, for several reasons given by the witnesses, among which were: First, that in the summer time honey could not be carried under deck because of leakage and fermentation, which did not occur when carried on deck. Second, because access could not be had to .it under deck, and by leakage it did damage to other freight which it was necessary to carry under deck. There was testimony to this effect by masters of vessels and others engaged therein, which were in the trade between Tuspan and Galveston, as well as by persons in Galveston engaged in insurance and other business, which gave them opportunity to have knowledge upon the subject; but there was conflict in the evidence. The general rule is that a policy on property in general terms, “laden or to be laden on board,” would not cover property laden upon deck; but if the property or goods are named, and are such as are usually carried on deck in the particular trade, either because it is necessary for the preservation of the named property or for the safety of the other cargo, passengers on the vessel, or even for convenience, this will be presumed to have been known to such persons as are doing an insurance business in the particular trade, and that the same was contemplated by the parties when the insurance contract was made; and hence it will be as binding upon the parties as though the policy contained an express stipulation that the property should be stowed and carried on deck. Meaher v. Lufkin, 21 Tex., 391; 1 Phillips on Insurance, 238, and citations; 2 Parsons on Marine Insurance, 222, and citations. [238] “When, from the nature of the articles, they can properly be carried only on deck, it is as much a condition that they shall be so carried as in other cases it is a condition to store in the hold.” 1 Phillips on Insurance, 237. If a general usage to carry goods on deck exists, underwriters who are doing business in the particular trade must take notice of it, and their contracts must be construed with reference to such' usage. 1 Phillips on Insurance, 235; 20 Wall., 492; 6 Wait’s Actions and Defenses, 628, and citations. The rule is thus stated by Mr. Arnould: “Every usage of a particular trade which is so well settled or so generally known that all persons engaged in that trade may be fairly considered as contracting with reference to it, is considered to form a part of any policy designed to protect risks in such trade, unless the express terms of the policy decisively repel the inference.” Arnould on Insurance, 65. It is contended that the court erred in admitting testimony tending to show that it was usual, in the trade between Tuspan and Galveston, to carry honey on deck in the summer time. This objection goes rather to the sufficiency of the evidence than to its admissibility; for if the evidence tended, as it did, to show such usage, it was admissible. If a course of business is so constant and general that all persons engaged therein cannot, with a due regard to their own interests, be ignorant of it, they are presumed to have knowledge of it, and it may then be looked to for the purpose of determining the intention of the parties when contracting within the line of such business. A course of business which brings such knowledge is within the meaning of the law, certain, uniform and general, for those elements of usage are only required to authorize from the common experience of men the presumption that the party pursuing the given pursuit has knowledge [239] of the usual course of business. Notoriety of a course of business is the true inquiry, and this is presumed if it be established and general. Lawson on Usage, pp. 40, 41, 45, 53. The testimony objected to consisted of statements of experienced persons as to how the business in question had been conducted for a series of years past, 'and not as to their opinions whether a custom existed to carry honey on deck between the places named; and we cannot say that it was not sufficient to establish such a usage or even custom to carry on deck, as to make the same a part of the contract between the parties. [Opinion delivered February 10, 1882.] The matter having been fairly submitted to a jury, their finding under the evidence cannot be disturbed. It was not incumbent upon the appellees to show a custom among underwriters to pay losses on goods carried on deck; the usage so to carry being shown to exist at the time the insurance contract was made, the contract covers the loss occurring in the course of the contemplated voyage. There being no error in the judgment, it is affirmed. Affirmed.