Barry v. Boston Marine Insurance

Campbell, C. J. Barry sued defendant as an insurer for the loss of a steam-yacht which foundered while in tow of a larger steam-boat, on a trip from Muskegon to Waukegan, on the night of November 7, 1884. The defense, in chief, is a denial of any authorized insurance. The declaration itself involves somewhat the difficulty relied on. It declares on a short certificate, headed with the name of the agency of defendant, certifying that plaintiff is— “Insured undex’, and subject to, the conditioxxs of open policy No. 2,273 of the Boston Max-ine Insurance Company, the sum of five hundred dollars on the steam-yacht ‘The Vane’, towed behind the steam-barge ‘B. G. Ingersoll’, from Muskegon, Mich., to Waukegan, 111. Loss payable to the order of Thomas Bany. This certificate to be surrendered on payment of loss. “ Muskegon, Mich., Fov. 7, 188J^. [Signed] “ George B. Lewis & Co., Agents.” This certificate having been set out, no further reference-is made to any policy, and the remainder is take.n up with. [427] recitals of loss and proofs. Defendant pleaded, and'subsequently was allowed to file an affidavit of denial, under which the plaintiff was put to proof. The evidence tended to show the reception by Lewis & Co. of five dollars premium, the execution by them of the certificate, and the loss' of the yacht. This certificate, standing by itself, has no definite meaning ; and as it refers expressly to a certain policy named, it. can only be construed und,er that policy. As declared on, it means nothing, as it contains no reference to the risks-covered, nor to the conditions imposed on both parties, nor - to the time of the insurance. No company could insure in such a vague way, and no agent could be presumed to have-any such discretionary authority. Read with the policy, it. makes out such action as was had, arid we shall not look' at the inferior and accidental questions, which, in our view,, become material only in case the main difficulty should disappear. Lewis & Co. held their authority-under a written commission, which gave them no power to issue policies except such as were signed by the president and secretary, and under the rules and regulations of the company, and subject to-its instructions. The record in this case is bare of any proof of broader authority, and it contains nothing to warrant the-inference that action by the agent beyond this was ever expressly or tacitly sanctioned. An agent can only bind a company where he has either real or apparent authority, and in this case there was no apparent authority substantially varying from the real. Security Ins. Co. v. Fay, 22 Mich. 467; Reynolds v. Continental Ins. Co., 36 Id. 131; Hartford Fire Ins. Co. v. Reynolds, Id. 502.1 In the present case it appeared that the agent had never before undertaken, of his own responsibility, to insure a vessel’s hull, but that in all such cases the manager at Chicago-looked into the matter, and fixed the rates if approved. In June, 1884, at the request of a previous owner, Mr. [428] Lewis applied to the manager to learn whether he would insure this same yacht, to be sent from Muskegon to Cheboygan .in.a few days,.and mentioning .that she was too small to be found in Lloyd’s. Nothing was said as to towage. Mr. White, the manager, offered .to insure the trip risk at 1 per cent. The testimony shows — what we must know judicially —that November risks are greater than those in June. The agent had no blanks for insuring hulls furnished him without approval. He had blank certificates for insuring cargoes, but they all referred to an open cargo policy, which was issued in his name, with the usual conditions and terms of cargo insurance, and required each risk to be indorsed. The present certificate was on a printed blank for the insurance of cargo under deck, on board some vessel to be named in it, and referred to the open policy for the conditions. The words, “under deck, on board the” were erased by the agent with a pen, and in place of them he inserted “ the steam-yacht £ The Vane' towed behind the steam-barge '•JR. (Jr. IngersollJ” This policy is headed “ Inland Open Cargo,” insuring 'George E. Lewis & Co., as insured, “on account of whom it .may concern.” It insures— All kinds of lawful goods, wares, merchandise, and produce, laden on board the good vessel or vessels, boat or boats, railroad or carriage, lost or not lost, at and from ports and places to ports and places, on a lawful and regular route and voyage, for the several amounts and at the rates as •hereon indorsed, subject to the conditions of this policy,” •etc. The risk was to attach immediately on the loading,— “And so shall continue and endure until the same shall .arrive and be safely landed at the port of destination,” etc. The risks and conditions are not those which are usual and •requisite in vessel insurance, but refer throughout to the carriage of goods. The risk is limited to cargo under deck, .unless otherwise specifically provided, and deck cargoes, when insured, are made subject to important differences. 'Cargoes under or on deck are the only articles provided for. [429] There is no rule of construction that could include a yacht in tow under the description of cargo, and, if insured at all, it must have been without any limitations.. No agent can be presumed to have authority to make such insurance, if he-should attempt it. But this certificate undertakes to bring under the policy something entirely foreign to-its provisions,, and cannot be sustained. If made- by a person having unlimited authority, it is possible that an- insurance might be-made to attach on some terms to save the contract. But this was wholly unauthorized, and the plaintiff, who was bound to look at the policy which it embodied, by reference, was thereby notified of its worthlessness. The general agent knew nothing of the. attempt to insure until he also learned the loss. We find nothing to show-waiver or approval. The declaration, as already suggested, makes out no cause of action, for it does not define what sort of insurance was given, whether fire, or mai'ine, nor on what terms or conditions. It might have been amended if there was any ground for it, but as no cause of action was made out, and no- amendment could aid it, we see no reason for awarding a- new trial. The judgment must be reversed-, with costs of both courts. The other Justices concurred.. Footnotes [1] See Richards v. Insurance Co., 60 Mich. 420.