Astor v. Union Insurance

Curia. The insurance was on fur. The title of the invoice was furs; under which were detailed bear and racoon skins, opossum, deer, fine fisher, cross fox, martin, wild cat, wolf, wolverine, panther and cub skins. The memorandum warrants skins and hides, and all other articles perishable in their nature, free from average unless general. The loss was not absolutely total; though the goods in question were so much injured in consequence of the wreck or stranding of the vessel, as to warrant the ^abandonment. This will not, however, entitle the plaintiffs to recover, if the subject insured is within the memorandum; for it is well settled, that, in such a case, to subject the underwriters, the loss, ii from sea damage, must be total in fact. (Phil. on Ins. 487, &c., and the cases there cited.), It is contended that the goods are covered by the memorandum ; 1. as being with the generic term, shins; or, if not, then, 2. within the clause, “ all other articles perishable in their own nature.” 1. There can be no doubt, that, taking the words skins and hides in their largest sense, they include every article of the invoice. But, to obviate this difficulty, which both parties seem to have been fully aware of, the plaintiffs offered evidence that, by the understanding of the trade in the city of New York, the articles are not considered to be within the terms skins and hides; skins being those where the skin constitutes the chief value, and furs were the value is constituted by the fur. It was conceded, both at the trial and at bar, that the policy might be thus explained by showing a known usage of trade, as it is expressed in Coit v. The Com. Ins. Co., (7 John. 385, 390.) But it was contended that the offer, and the evidence which followed, were too nar [214] row; being confined to the particular trade in fur or fur skins ; whereas the usage should be of trade generally. case was cited; nor do we think the argument warranted upon principle. - The phrase “usage of trade,” implies a restriction to that class of merchants who deal in the article. Beyond that circle there can be no usage, such as was sought to be established. To sustain the objection, would, therefore, be at once to overrule the cases which allow a usage to be proved at all. The evidence was properly received. [1] [2141] All the witnesses for the plaintiffs, who were traders in fur, of longer or shorter, standing, and to a greater or less extent, concur in the general and leading distinction, that skins, valuable chiefly on account of the fur, are, in the language of the trade, called fur; and that skins is a term appropriated to those which are valuable chiefly for the *skin. The word “hides” has been laid out of view as a term confessedly inapplicable to fur skins. The witnesses, when examined as to particulars, ran into some apparent discrepances ; but we think the judge was clearly right, in deciding that the evidence should go to the jury; and in refusing a nonsuit. The witnesses on the part of the defendants had generally been officers of insurance companies. One had been an insurance broker. So far, though well qualified to testify to the understanding of insurers, they were clearly not so well skilled as the plaintiffs’ witnesses in the nomenclature of the trade. There was one of them who had also been a dealer in fur. With the exception of this witness, none of them pretend an ability to speak much beyond the insurance offices. So far as their knowledge extended, they concur in supposing that the goods in question were covered by the term skins. Most of the witnesses appear to have been cross-examined; probably to an extent which we cannot see, much less appreciate, upon paper. It must be borne in mind, however, that we are not called upon to pronounce merely what conclusion we might have come to as jurors. All we can do is, to examine the evidence; and if it be such as plainly not to warrant the verdict, we ought to grant a new trial. But the question being confessedly proper for the jury, we cannot undertake to weigh the testimony in nice scales. When a number of commercial men concur in stating that a word used in their trade has acquired a certain sense, we cannot overturn a verdict founded upon such evidence, merely because they have given some particulars and illustrations disagreeing, either partially or wholly, with their general statement. Their credit has undergone the constitutional test. Notwithstanding the charge of the judge, [215] the jury may have" thought the case a very clear one. We , , . ,n were appealed, to on the argument by a very imposing illustration; and told that, to sustain this verdict, we must run í¿t0 the solecism of holding that bear skins are not skin's. Yet it is very easy to conceive how the" fur skins even of *bears may have acquired a technical commercial meaning. The enumeration in the invoice is of various classes of animals which are hunted in our northern forests, as valuable chiefly on account of their fur: (Ed. Encyclop. Am. ed. tit. Canada.) Others áre sought inainly for the use of their skins. The former áre the object of the American fur trade; and their skins, especially those used about garments, have come to be synonymous with fur in the popular sense. (Eng. & Class. Dict. Fur, ed. 1813.) The term seem thus very naturally to have acquired á sense among men engaged in this article of commerce, contra-distinguished from, and excluding the application of, the generic term skins. The testimony of the plaintiffs’ witnesses whs corroborated by several New York prices current, in which the kind of goods in question were ranked as furs; and invoices in the fur trade were spoken of at the trial as giving them the same rank. It is said the technical meaning should be clearly established. Be it so. Though we may think it clearly established in this case, we do not see enough to prevent a jury from coming to that conclusion. They must have been very strongly impressed with the plaintiffs’ evidence, or they would not have dissented from the charge of the judge. Insurers on furs are bound to know the import of the word, among men trading in that article. 2. The remarks made as to the weight of evidence, apply with still greater force, to the other question of fact decided by the jury ; that is, whether these furs are an article perishable in their own nature. Some of the witnesses for the plaintiffs spoke very strongly on this subject. They put fur skins on nearly the same footing with cloths. It is difficult to fix the precise extent of this clause in the mefndrandum. Taken in its broadest latitude, it covers [216] everything. It was probably intended of those articles not particularly enumerated, which are liable to perish of themselves, in the course of the voyage, without any external injury. *We are not warranted in disturbing this verdict, on the ground that it is against the weight of evidence. [1] [217] The defendants offered to prove that Roberts, who effected the policy as agent of the plaintiffs, urged the taking of the risk at low premium, on the ground that the articles would be free from particular average. This evidence was clearly inadmissible. In the first place, it was no more than the hearsay opinion of a third person. It was not a stipulation. It was not the representation of a fact. At most, it was the expression of an opinion as to the meaning of the memorandum. It is certainly not within the power of agent to fix by his opinion the meaning of a policy which he is authorized to effect. The plaintiffs, it is true, have adopted his acts; but not such a legal construction of them as he may have given, though at the time of executing his power. His opinion was not a part of the res gestee. It was said a latent ambiguity, being created by parol evidence, may, in all cases, be removed by parol. Hearsay, however, is no evidence. If the defendants wished to avail themselves of Roberts’ opinion, they should have sworn him. It is not necessary to say, whether such an opinion coming from the plaintiffs themselves might not, under the circumstances of this case, have been admissible. Perhaps it would, if expressed at any time, as weighing upon the question of commercial meaning, or the sense in which the memorandum was in fact understood between the parties. (1 Mass. Rep. 11, 12.)' But if this be so, it does not follow that the unsworn opinion .of a third person could not have any weight. The offer to prove insurances at a higher premium on non-memorandum articles, for the same voyage, at other offices, and that insurance offices commonly charge a higher premium on these, was properly overruled. It would not [2171] go even to show the understanding of this particular com- ° 0 t pany. The charging of a higher premium elsewhere, might have been the very reason why the plaintiffs made insurance at the office of the defendants. The custom of this office was not proposed to be shownand if the offer had been made, it would have gone merely to their own * understanding; not that of the plaintiffs, or of the trade generally. An inquiry into the relative amounts of premium any where, could determine nothing to the question. The judge being right in his legal decisions; and there not being, in our opinion, a preponderance of evidence in favor of the defendants sufficiently strong to warrant setting aside the verdict as against evidence, a new trial must be denied. ¡New trial denied. Footnotes [[1]] In respect to the quality or character of a usage, admissable to influence the construction of a contract of any sort, (for the rule in this respect seems to be the same wlaether the contract be written or verbal, sealed or unsealed,) it must appear to be so well settled, so uniformly acted upon, and of so long a continuance, as to raise a fair presumption that it was known to both contracting parties, and that they contracted in reference to, and in conformity with it. See the cases supra. Also Eager v. The Atlas Ins. Co., 14 Pick., 143, 4, per Wilde, J., Snowden v. Warden, 3 Rawle, 101, 107. Smith v. Wright, 1 Cain. Rep. 44. Van Hess v. Pacard, 2 Peters’ Rep. 148. Loring v. Gurney, 5 Pick Rep. 16. Renner v. Bank of Columbia, 9 Wheat. 581, 584, 5, et seq. Lawrence v. M’Gregor, 1 Wright’s Rep. 192. Kendall v. Russell, 5 Dana. 501. Barksdale v. Brown, 1 Nott & McCord, 517. Barber v. Brace, 3 Conn. Rep. 9. Lawrence v. Stonington Bank, 6 Conn. Rep. 529. Paull v. Lewis, 4 Watts’ Rep. 402. Thomas v. O'Hara, 1 Rep. Const. Ct. So. Car. 308. Collings v. Hope, 3 Wash. C. C. Rep. 149. Hayward v. Middleton, 3 McCord’s Rep. 121. And whether such is the case with regard to the usage in question, must generally be tried like other matters of fact, by the jury, if there be one. See Heald v. Cooper, 8 Greenl. 33. Williams v. Gilman, 3 id. 276. Rushforth v. Hadfield, 7 East, 224. Gibson v. Culver, 17 Wend. 306, 7, 8. The usage need not he general. Usages of particular classes, and peculiar to certain localities, have been freely received. See Cowen & Hill’s notes to Phillips’ Evidence, pt. 2, p. 509. Its antiquity, moreover, is of no importance, further than as a cireum'stance in aid of the main point, which is, to show that the parties knew of the usage, and intended to adopt it as the law of their contract. Per cur. in Thompson v. Hamilton, 12 Pick. 425, 428, 9. Kendall v. Russell, 5 Dana’s Rep. 503. We frequently meet with general propositions like the following—“a usage must be reasonable”—and “ can never he received to contradict a settled rule of law.” See Frith v. Barker, 2 John. Rep. 335. Eager v. The Atlas Ins. Co., 14 Pick 141. Homer v. Dorr, 10 Mass. Rep. 26. Henry v. Risk, 1 Dall. 265. Bowen v. Jackson, Whart. Dig. ed. 1822, p. 252, § 358. Stoever v. Whitman, 6 Binn. 416. Rankin v. American Ins. Co., 1 Hall’s Rep. N. Y. S. C. 619. Brown v. Jackson, 2 Wash. C. C. Rep. 24. Winthrop v. The Union Ins. Co. 2 id 9. Barksdale v. Brown, 1 Nott & McCord, 517. [[1]] A verdict which is clearly against evidence will he set aside and a new trial granted. Wells v. Waterhouse, 9 Shep. 131. Corlies v. Little, 2 Green, 373. Munn v. Gairdner, 3 Brevard, 31. Hudson v. Williamson, 3 Brevard 342. Byrnes v. Alexander, 1 Brevard, 213. M’Bride v. Whitehead, Geo. Decis. Part 1, 165. Childress v. Stone, Geo. Decis. Part II. 157. Jenkins v. Whitehead, 1 Smedes & Marsh. 151. Scott v. Brookway, 1 Mis. 61. Wait v. White, 5 Pike, 640. Gibson v. Gibson, 9 Yerg. 329. Cassels v. The State, 4 Yerg. 149. M’Coy v. Martin, 4 Dana, 580. Tiffin v. Forrester, 8 Mis. 642. Shobe v. Morris, 6 Mis. 489. Yale v. Yale, 13 Conn. 185. Brown v. Handley, 1 Leigh, 119. Mahon v. Johnston, 1 Leigh, 317. Brugh v. Shanks, 6 Leigh, 598. Mayer v. Wiltberger, Geo. Decis. Part II. 20. Supra, 236. Where a variety of testimony is fairly submitted to the jury, and no instruction asked of the court, or question of law raised, a new trial will not be granted unless the preponderance of evidence against the verdict is very great. Kellogg v. Budlong, 7 How. Miss. 340. Ellzey v. Stone, 5 Smedes & Marsh. 21. Yarborough v. Abernathy, 1 Meigs, 413. Perry v. Smith, 4 Yerg. 323. Sellars v. Davis, 4 Yerg. 503. Pettitt v. Pettitt, 4 Hump. 191. Grubb v. M’Clatchy, 3 Yerg. 442. Harbour v. Rayburn, 7 Yerg. 432. Martin v. Withington, 4 Mis. 518. Wilson v. Burks, 8 Mis. 446. Rennick v. Walton, 7 Mis. 292. Lowry v. Orr, 1 Gilman, 70. Todd v. Boone County, 8 Mis. 431. Bagshaw v. Dorsett, Geo. Decis. Part II. 42. Davis v. Hale, Geo. Decis. Part II. 82. Pendleton v. Mills, Geo. Decis. Part II. 166. Bonds v. Gray, Geo. Decis. Part II. 136. Walker v. Tatuum, Geo. Decis. Part II. 161. Wilson v. Natioris. 5 Yerg. 211. Knight v. Mantz, Geo. Decis. Part I. 22. Irwin v. Morell, Dudley, Geo. 72. Flourney v. Coxe, Dudley, Geo. 5. Faber v. Baldrick, 3 Brevard, 350. Swipes v. Remourssin, 2 Brevard, 33. Lavall v. Cromwell, 3 Brevard, 463. Brugh v. Shanks, 5 Leigh, 598. Bank v. King, 2 Green, 45. Jackson v. Packer, 13 Conn. 342. Stanley y. Whipple, 2 M’Lean, 35. A verdict clearly against evidence will he set aside, and a new trial ordered. Conrad v. Williams, 6 Hill, 444. It will he granted in an action on a policy of insurance, where the jury has found for the plaintiff but it appears from the evidence, that the vessel was not seaworthy. Mumford v. Smith, 1 Cai. R. 520. It will be granted where the weight of evidence is in favor of the applicant, and it appears that justice has not been done. Jackson ex dem. Le Roy v. Sternbergh, 1 Cai. R. 162. [217] A I'.ew trial will be granted where the former verdict was contrary to evidence. Hart v. Hosack, 1 Cai. 25. Where there is room for the least criticism upon the import of the words, it is properly a question for the jury, whose decision is conclusive. Ex parte Bailey, 2 Cow. 479. A verdict will not be set aside as against evidence, unless it be decidedly against the weight of testimony submitted to the jury. Jackson v. Loomis, 12 Wen. 27. (N. Y. Dig. p. 599, tit. New Trial)