Berthoud v. Gordon, Forstall, & Co.

Mathews, J., delivered the opinion of the court. In this case the plaintiff claims remuneration for loss and damage which it is alleged he had suffered by the negligence and misconduct of the defendants, his agents, in not insuring his interest in a certain steamboat called the Hercules, which was employed in towing vessels between New-Orleans and the Balize. He obtained judgment in the court below from which the defendants appealed. The principal facts of the case are as follows. The boat in question was owned in unequal portions by the defendants, the plaintiff, and one Bakewell. The interest of the plain [583] tiff was estimated at five thousand dollars. Sometime in the year 1826, this boat commenced its employment in the towing business between the places above stated. At that time the interest of the plaintiff was insured by the defendants, who acted as his agents; and this was done at his request. The policies were regularly renewed from six months to six months, from the commencement of the insurance until some time in the summer of 1827, when the boat was sent to be repaired at Shippingport in Kentucky. Previous to her leaving New-Orleans she was Insured on this voyage. After . being repaired she was sent down the river and commenced ° x the business of towing vessels in pursuance of the use to which she had been formerly appropriated, and was totally lost by the perils of the river on the 26th of December, 1828. After the return of the boat to New-Orleans in 1827, being then repaired, the defendants neglected to insure the interest of the -.../Yn-t-i it i . i. piaintifi, although they took care to insure their own. where a merpart owner of a steamboat and acts as the agent of a co-proprictor at a distance to in‘™ceswTthoutany Sm™nd™e toS iLuc ’ u™ ámount of such intm-est uninsured. 8tmcethftatCUfte account current torhe¿rePtii°Ks *5>:'«¡/‘“remlúm “vm0uótnbemcaoni ofadi^ontiuaucl insure ,™a”tLxfrom Mfiiabmty. The judgment of the District Court as based on these facts is assailed by the counsel tor the appellants on two grounds: I. That they were not the agents of the plaintiff’s at the time of the alleged negligence. 2. That if they may be considered as his agents they gave him notice of their having discontinued to insure his interest in the boat, and that he acquiesced in the latter course of conduct. Neither of these propositions is supported by the evidence in the cause. They were his agents to effect insurance; and, indeed as related to the management of the boat during the time she was employed in towing voyages below New-Orleans and the mouth of the river from 1826, to the summer of 1827, when she was sent to Shippingport for repairs; and in that voyage they assumed the agency to insure the interest of the plaintiff. When did they cease to be his agent? According to our conclusions from the testimony, never until the boat was lost; at least so far as their agency related to effecting insurance. How did they give notice to the co-proprietor that they had ceased to protect his interest by insurances while they were so careful of their own? Not by letter, not by verbal message. But the counsel argues that he had at [584] ^eas^ presumptive notice by the omission of the charge for a premium in one of their accounts current sent to him at Louisville. As argued on the other side, the plaintiff might ]mve overlooked the omission; for a man’s attention is not readily drawn to things which do not appear. JVon-entilies are not apt to be the subject of reflection and thought in the mind of any person. Let us however suppose, that he did notice this omission or difference between this account and others which had been previously rendered, what may have been his conclusion ? The most natural to our minds would be this; my friends and agents have neglected to charge me with the customary premium of insurance. This omission can easily be corrected at some fuiure time. But surely they have not been wholly regardless of my interest entrusted to their charge and care. They have not been such unfaithful agents as to leave me to the risk of losing five thousand dollars, and at the same time be careful to protect themselves against loss whilst we were all interested in the same vessel, periled by fire, by steam, and by hurricanes. ■ We are unable to discover any thing in the prominent features of this case calculated to distinguish it from that of Ralston vs. Barclay et als 6 Martin 649. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed with costs.