Snow v. Carr

MANNING, J. This case, like that of Snow v. Stoutz, decided at the last term, arose out of the destruction of plaintiff’s piano, by the burning of the store of defendant Snow in August, 1874, the piano being then therein for sale or rent. Mr. Snow was a seller of musical instruments and other merchandize, his own, and on commission for others. The two cases presented several questions common to both; but those upon which the judgment of Stoutz against Snow, in the Circuit Court was reversed, do not arise upon this record. [368] On the trial of that cause, upon objection made by plaintiff, evidence offered by defendant to show that he had not received from the insurers any money on account of the piano, and that it was not intended to be and was not insured under the general words in the policy, was erroneously excluded. And it is with reference to the facts so proposed to be proved as a part of the case, namely, that the piano was not insured, and that no money was received from the insurers on account of it, that the opinion in that case is to be understood. No such testimony was ruled out or objection made to it at the trial of the cause in hand. The policies of insurance taken by and paid to Mr. Snow upon which both suits were brought, are the same. And in Snow v. Stoutz, two points that are presented in this case, were ruled in favor of appellee, Carr, namely: 1st, there was no error in receiving parol evidence of the contents of those policies which had been cancelled and returned to the company in England that issued them; and, 2d, the policies to-Snow & Brown, of whom Snow was the successor, describing the goods insured as “their own or held in trust,” by these latter general words, and in the absence of evidence to the contrary, embraced the piano of plaintiff. It was, however, further held that oral testimony on the part of Snow, was admissible to prove that those words were not intended to cover and therefore did not cover this piano, but related to other merchandize received from abroad, to be sold by him on commission, and which he was instructed to keep-insured. — See, also, Waters v. Assurance Co., 5 Ellis & Bl. 870, and Lee v. Adsit, 37 N. Y. 94, et seq. Upon these points there was no error in the rulings of the circuit judge in this instance. Plaintiff testified that she had not instructed defendant to insure her piano, and said nothing about paying any premium for insurance; that she learned that her piano was destroyed by the fire of the 31st of August, 1874, and did not know or have any knowledge or information about the insurance until long after the fire. Defendant testified “ that plaintiff had never asked him to insure her piano, and he had not included it in the proofs of loss which he rendered to the insurance companies, and had received no money therefor from said insurance companies, but had received all the money due and payable on the policies.” He said further that “the value of his own property destroyed in said fire, exceeded the amount of all the policies over $10,000.” The insurance money was paid to him — a part in May, 1875, and the residue and larger369 part in August of that year; and no demand for any part of this was made by plaintiff till after that time. 1. The general charge of the circuit judge to the jury was composed of special instructions, which obviously were not all erroneous. And the exception to that charge failing to designate any particular in which it was supposed to be wrong, does not, according to repeated decisions of this court, bring up any question for our determination. The legal propositions which we are to consider all arise upon the charges asked for defendant below and refused by the presiding judge. Without repeating them here, we proceed to consider the propositions founded upon them. According to the bill of exceptions, it contains “ substantially all the evidence” that was introduced. What Mr. Snow, when testifying for himself says, is, that he “ was not asked to insure the piano, and had not included it in the proofs of loss.” He did not say that it was not his purpose or understanding that the policies should protect the piano, or other like goods received as this was, in his store. Nor do any of the numerous charges asked on behalf of appellant, assume, even hypothetically, that the piano was not insured. And these charges if given would have required other explanatory ones on behalf of the plaintiff. N o question founded upon the idea that the policies were not intended to and did not cover this instrument, is presented for us to decide. The fact that plaintiff, Carr, did not request that her piano should be insured, does not prevent her from being entitled to the benefit of the insurance if effected. This was settled long ago by decisions made here and elsewhere — Durand v. Thouron, 1 Porter, 238; Batre v. Durand, id. 251; Snow v. Stoutz, supra; Waters v. Assurance Co. supra; Siters v. Marrs, 13 Penn. St. 218; Home Insurance Co. v. Balt. Wareh. 93 U. S. 543. The value of the goods insured and burnt being much greater than the amount of insurance, it was not necessary in order to obtain the Avhole of this, to make proofs of all the goods destroyed. The omission, though, to do this, in such a case, can not hurt the plaintiff. According to the policies, SnoAV stood in the relation of a trustee for her: and he could not release himself from his responsibility as such, by failing to assert to others her right to a share of the money which he Avas demanding and receiving in full from the companies that owed it to him as trustee, as well as in his own right. They must be understood as paying, and he as accepting the fund as an indemnity, according to the policies, for the loss [370] of the goods insured, those of others as well as his own. Batre v. Durand, 1 Porter, 255-6. Was it, as supposed, necessary to entitle plaintiff to the benefit of these policies, that she should, before they were paid, have ratified the acts by which they were procured, or in any other manner have expressly signified her adoption of the policies ? In Batre v. Durand, supra, this was done after the fire, though before payment of the loss : and the court held that sufficient. Whether any such ratification was essential or not, was a question not then presented. The answer to it must depend on the nature and facts of the case. It is easy to imagine circumstances which would make a ratification requisite. But persons engaged in a business by which large quantities of the goods of others pass into their possession and charge, and out again to others, soon after-wards, may find it to their advantage, to take out policies of insurance at their own expense, for the protection of such goods. Said Lord Campbell: “It would be most inconvenient in business, if a wharfinger could not, at his own cost, keep up a floating policy for the benefit of all who might become his customers.” — 5 Ellis & Bl. supra, p. 881. The expense might be “ much more than repaid by augmented business induced by the confidence which an insurance would inspire.” — Liter v. Marrs, 13 Penn. St. 220. For aught that appears, it was with such views and in consideration of their custom, that Mr. Snow took out policies which protected the goods of those from whom he received them for sale on commission. And this being beneficial to plaintiff, and not imposing upon her any burden, her assent to it, like that of a creditor to an unconditional assignment for his benefit from his debtor, is to be presumed. It is contended that defendant is entitled to have the loss of his own property by the fire of August, 1874, first made good out of the insurance money; and that plaintiff’s right is limited to the residue only, if there be any. The contrary of this was decided by the Supreme Court of Pennsylvania in Liter v. Marrs, 13 Penn. St. 220. In regard to a similar policy, it was there held that it afforded to the property of the-assured and that of his customers, “ equal protection.” “ Its terms (says the opinion), place all the goods in the warehouse from time to time, on the same level; all are equally protected. A similar decision had been made in this State more than twenty-five years before in Batre v. Durand, supra. It was then held, of a policy like those taken by Mr. Snow: “ That the sum at which the policy [371] was valued may have been less than the value of all the articles consumed, does not destroy the right of any for whose benefit the insurance was effected, to his proportion of the proceeds.” In the Pennsylvania case cited, reference was made to a passage found in Story on Agency, § 111 (as now numbered), which seemed adverse to the views of the court. Speaking of agents, that learned jurist said: “ If they insure in their own name only, they may in case of loss, recover the whole amount of the value of the property insured from the underwriters, and the surplus beyond their own interest, will be a resulting trust for the benefit of their principals.” Of the authorities given for this passage, it is remarked in the opinion, that they “ do not so much as allude in the slightest manner to what is supposed” to be its meaning; and no other authority for it was then known. It was, therefore, inferred that it was not correctly understood. Six years afterwards in Waters v. Assurance Co., a suit of the assured against the insurer on a similar policy, Lord CAMPBELL, C. J., remarked of the assured: “ They will be entitled to apply so much to cover their own interest and will be trustee for the owners as to the rest.” — 5 Ellis & Bl. 881. And in a like case of the assured against the insurer, (Home Ins. Co. v. Balt. Warehouse Co. 93 U. S. 543,) Mr. Justice STRONG, recently said: “ It is undoubtedly the law that wharfingers, warehousemen and commission merchants, having goods in their possession, may insure them in their own names, and in case of loss, may recover the full amount of insurance for the satisfaction of their own claims first, and hold the residue for the owners.” But these learned lawyers did not mean thus to decide, in cases between parties in which the question could not arise, that when agents or bailees insured goods of their own and goods belonging to their customers, by policies like those in question, and received the entire amount stipulated to be paid in case of loss, they were entitled to payment in full for the loss of their property first, and that the others were to be paid only out of the residue. They do not speak of the property of the assured, but of their “interest” in or “ claims ” against the property of their principals, for storage, insurance, advances, commissions and other charges, to secure which they had alien on the property, and were entitled to an extension of it to the insurance-money which they should receive in place of the property. This appears upon an examination of the passages themselves, and is made more [372] apparent by a consideration of tbe cases and of tbe authorities referred to, in the opinions. The rule for distributing among several, the proceeds of a security provided for them all in common, but insufficient for the payment of all in full, is — that equality is equity : And if one of them have a lien, by law or contract, thereon, for payment of the debt of another to him, the lien shall be discharged out of the debtor’s share of the fund. This disposes of, adversely to appellant, all the questions raised by his exceptions and assignments of error. The judgment of the Circuit Court must be affirmed.