Underwriters' Agency v. Sutherlin

McCay, Judge. Did this case turn solely on the proof of loss, we arc not prepared to say that the verdict is wrong. Section 2788 of our Code gives a very wide definition of the phrase, “ perils of the sea,” and the phraseology of the latter clause would seems to make the insurer responsible, even for the negligence of the master, except in the cases there specified. True, this section seems in conflict with section 2785, but there may be reason in the suggestion that section 2785 refers to an insurance on the ship only. We do not, however, intend to decide this point, as, in the view we take of the case, there must be a new trial on other points. We think the Court erred in ruling out the policy, or, rather, we are of opinion that the policy was a necessary part of the plaintiff’s case. The certificate is not, of itself, a complete contract by the company. It expressly provides that the terms and conditions of the contract are to be regulated by policy number..... On its very face, the paper produced shows that it does not contain the whole contract. How can any one say what the contract was from the certificate alone ? What is the risk taken ? It does not say. What are the terms and conditions ? It does not say. It stipulates, expressly, that these terms-and conditions are set forth in another paper. True, that other paper is in the custody of the defendant; but that was well known to the parties. It was the usual mode of business for the agent to retain this paper. But its contents were well known to Eust, who was the mutual agent of both parties, as the evidence shows. In any event, the paper certificate declares and notifies all concerned that it is not the whole contract. It was in the power of the plaintiff to com 656 pel the production of the policy, and as it was a necessary part of the plaintiff’s case, he should have taken the legal steps required for that purpose. As it was produced by the defendant, without notice, the plaintiff’s case, in this respect, was complete. But when, on his motion, it was ruled out, his ease was fatally defective, since it appeared, affirmatively, to the Court that the full contract of the parties was not before the jury. "We are not sure that the Court was not technically right in ruling out the paper as evidence for the defendant. The whole policy was not produced. "What we have was torn away from something else. Whether what was not produced was or was not material, does not clearly appear. Had the plaintiff given the notice, and the defendant failed to produce the whole, the remedy is apparent. But as no notice was given or shown, the plaintiff’s case was incomplete, the contract was not before the Court, and no excuse is offered why it was not. For this reason, we think there ought to be a new trial. The verdict is not sustained by the evidence, because it was not shown what the real contract of the parties was. Judgment reversed.