Moore v. Perpetual Insurance

Gamble, Judge, delivered the opinion of the court. This is an action upon an open policy, to recover the value of a slave, who fell overboard and was drowned, during the voyage, without any disaster happening to the boat, or any unusual occurrence causing him to fall overboard. The policy covered such shipments as might be endorsed upon it. There were several shipments of negroes and horses endorsed upon the policy, the first of which had this memorandum attached to it: “The horses and negroes entered above, are only insured against the dangers incident to navigation, drowning, blowing up, &c., but not against leaving the service of the assured, nor against death by ordinary sickness ; they are not to be manacled or handcuffed, so as to prevent them from swimming. ” 1. The endorsement of negroes, including the one lost, has this memorandum attached to it: “The said negroes only insured against the dangers incident to navigation, such as blowing up, drowning,” &c. [101] The point assumed for the defence of the Insurance Company, and for which many authorities are cited, does not appear to arise in this case. The law which the counsel states, may be entirely correct, but it is not thought to be applicable to the claim now asserted by the plaintiffs ; nor is it doubted but that the printed part of the policy in which the risks, assumed by the company, are enumerated, may be modified by the written endorsement, covering other risks, or relieving the company from some which would otherwise be embraced within the printed enumeration. 2. We must examine this memorandum, as intended to express the real scope of the obligation of the company, and while it professes to declare, that the company do not insure the property against any but the dangers incident to navigation, such as blowing up, drowning, &c., we must, at least, understand it as declaring, that the company is bound for the losses happening by blowing up and drowning. We take it to'be an engagement to indemnify the owner of the slave, against a loss of his property, which may happen by the blowing up of the boat or the drowning of the slave. In other words, the company, in specifying the dangers incident to navigation, against which they insure, have included, “drowning,” which is, in itself, not a “danger,” but the result of a peril, and against that result they insure. We are not left to inquire what are perils of the river, or dangers incident to navigation, or whether the loss happened by an ordinary or extraordinary cause. The company has agreed that drowning, happen as it may, is a loss for which the assured shall be indemnified. The judgment in this case must be affirmed.