Plahto v. Merchants' & Manufacturers' Insurance

Holmes, Judge, delivered the opinion of the court. The plaintiff sues as the party insured, on a policy by which the defendant caused “ S. M. Gray, agent,” to be insured “ in such sums on property from and to such places, and on board such vessels as shall be specified by.application, and mutually agreed upon and written on this policy.” It appears that S. M. Gray effects this policy as the agent of the plaintiff. The usual policy book was annexed to it, in which the declarations of the vessel’s voyages and property insured were to be written under this clause. The goods, which are claimed to have been insured in this instance, were shipped by the plaintiff’s agent on board the “Asa Wilgus,” at St. Louis, consigned to the plaintiff, at Boonville, on Saturday, the first day of September, 1860. Early on the morning of Monday following, the vessel and cargo were lost in the Missouri river. About four o’clock in the afternoon of the same day, the agent made application at the office of the defendant for insurance on these goods. He had not brought the policy with him. The secretary entered the application on his cargo book, under the heading, “ S. M. Gray, agent of the Great Western Dispatch Company,” of which, it appears, Gray was also agent. The practice was to write up the insurances on policies of this kind and pay the premiums at the end of each month. There was evidence tending to show that the agent was reminded by the secretary, at the time, that he would have to bring in his policy and have the proper entry made in his policy book. A few minutes after the agent had left the office, the secretary, on taking up the evening newspaper, saw the announcement of the loss of the vessel and cargo. This fact was unknown to either party at the time of the previous transaction. The secretary immediately addressed a note to the agent, informing him that the goods were not insured, and, when after-wards the agent applied, with the policy, to have the goods entered thereon, the officer refused to do so. The court instructed the jury for the plaintiff, as follows : — 253 — 1. That the secretary of the company, within the scope of his general authority, had power to waive the conditions of the policy as to the endorsement of goods on the policy; and if he tdid so waive, the company are liolden, though,the goods were not insured. 2. That, as the policy was issued to S. M. Gray, “ agent,” the word agent in the policy is a sufficient indication that others are interested in the goods, to justify the admission of parol evidence to prove property in the goods in the plaintiff; and if the plaintiff owned the goods, an action on the policy may be maintained in his name. Instructions were refused for the defendant to the effect that, if the loss were known to the agent at the time of the application, or if the application was understood to be made by him as agent of the Great Western Dispatch Company, or if the goods were not endorsed on the policy, and there was no waiver of the terms and conditions of the policy by the secretary, with the knowledge and assent of the board of directors, the defendant was not liable; and further, that on the face of the policy it did not appear that the insurance was made for the benefit of the owner, whoever he might be, so as to enable him to sue in his own name, and that parol evidence was not admissible to enlarge or vary the terms of the policy, and that therefore the plaintiff was not entitled to recover. The court, sitting as a jury, found a verdict for the plaintiff for $3,239.31, and the case comes up by appeal. The first question is, whether the plaintiff was the party insured, so that he could sue on the policy. This point may be considered as settled in the affirmative, by an almost uniform course of authority. The plaintiff must have an interest in the policy as well as an interest in the goods insured. An insurance may be effected by an agent in his own name, for the benefit of a party interested as owner, without describing his name, but there must be words in the policy which sufficiently indicate such an intention; the most usual words are, “ for whom it may concern,” or “ for the owners.”' The effect of the phrases is merely to show that the agent is — 254 — effecting the insurance, not for himself, but for some other party, who is not named. The words “ S. M. Gray, agent,” must have the same effect; they mean something more than a mere description of the agent’s own person. They import that he is acting in the character of agent for some undisclosed principal; such must be the understanding of the parties. Parol evidence is admissible in such case to show the identity of the party intended to be insured, and to prove his interest in the property insured. It does not in any way change or contradict the terms of the written instrument. It only develops and explains a latent ambiguity—Wise v. Mar. Ins. Co., 23 Mo. 80 ; 1 Arnold Ins. 25, n. 1; 2 Duer Ins. 40, 10; Rider v. Ocean Ins. Co., 20 Pick. 259; Jeff. Ins. Co. v. Cotheal, 7 Wend. 82; Davis v. Boardman, 12 Mass. 83 ; Farrow v. Commonw. Ins. Co., 18 Pick. 56. But it is otherwise where there are no words-in the policy to indicate any other party than the one named as making the insurance, and such was the case in Wise v. Mar. Ins. Co., 23 Mo. 80; Graves v. Bost. Mar. Ins. Co., 2 Cranch, 419; Finney v. Bedf. Com. Ins. Co., 8 Metc. 348. We think that the instruction that was given on this point was correct. The more important and difficult question is, whether there was any written contract of insurance — any policy at all on these goods. It would seem to be a settled principle that a policy of insurance must be in writing—1 Arn. Ins. 17, n. 1, 50 ; 1 Duer Ins. 60 ; 1 Phil. Ins. 8 ; 3 Kent Com., 7th ed., 321 n. e. The same doctrine seems to have been -admitted, though the point was not decided, in Smith v. Odin, 4 Yeates, 468. It is the universal commercial usage, confirmed by the general tenor of the authorities, that this contract shall be in writing, and it has been decided that such a thing as a verbal policy of insurance was unknown to the law—Cockerel v. Cin. Ins. Co., 16 Ohio, 148. If there were any insurance on these goods, it must have been effected by the terms of this written policy, or in pursuance thereof. The insurers have signed no other contract but •this, but the policy itself leaves the voyages, the vessels, and — 255 — the property which is to be the subject of the insurance, to be declared in future, in the manner therein provided: that is to say, these things “ shall be specified by application, and mutually agreed upon, and written on the policy.” This was not actually done here at all. The first instruction given for the plaintiff supposes that the secretary had power to waive this endorsement in writing on the policy, and that he may have done so. There is nothing in the evidence that goes to prove the existence of any such authority. Merely as secretary, he had no power to waive any part of the written contract without the knowledge or assent of the corporation, or of the board of directors, or other officers having power to make contracts of insurance in the name of the company. It has been held that even the president of an insurance company had no power to waive the provisions of a policy which required the production of preliminary proofs of loss—Dawes v. N. B. Ins. Co., 7 Cow. 462. And where the secretary or other officer of the corporation is authorized by the charter ordinance and by-laws to make a policy or other contract in writing, it must be done in the»manner prescribed in the by-laws before it can become the act of the company ; and the assent of the company to the formation or dissolution of a policy cannot be manifested or proved by parol—Head v. Prov. Ins. Co., 2 Cranch, 168. So, where the by-laws required other insurances to be mentioned in the policy, and it was not done, the policy was held to be void, and parol evidence was not admitted to supply the defect—Barrett v. Un. Mut. Ins. Co., 7 Cush. 175. Whether this proceeding is to be regarded as an attempt to waive a part of the written policy, or to supply an omission by parol, or to substitute other evidence of the contract than that which was agreed upon, and expressly required by the policy itself, in either case it was equally inadmissible. The contract of the insurers is complete when they have signed the policy ; but where the policy leaves the declaration of interest, or the designation of the vessel, the voyage, — 256 — or the property insured, entirely open, to be afterwards made, a mere power is conferred on the assured, and the exercise of it need not necessarily be in writing—1 Arnold Ins. 53. A general power is not conferred by this policy; but the authority which is given, is in terms restricted to a mutual agreement, and a writing to be endorsed on the policy. The declaration or application of the assured is not to be absolute ; it must be mutually agreed upon before it can be endorsed, and it must be endorsed on the policy before the declaration will be complete or the risk attach. In Robinson v. Tournay, 3 Camp. 157, the power to make a declaration of interest was left open and general. Lord Ellenborough was of the opinion that in such case the declaration need not have the signature or the assent of the insurer. He observed that the contract was complete when the underwriters had signed the policy ; that the declaration of interest was the mere exercise of a power conferred on the assured, and that it was generally put upon the policy for convenience, but there was no necessity for its being in writing ; and he allowed a mistake in the name of the ship to be corrected by parol evidence, showing on what ship the go,ods were laden. In Harmon v. Kingston, 3 Camp. 150, the same learned judge held that a declaration of this kind, where the policy was in general terms, necessarily imported two parties — the person who makes it and the person to whom it is made — and that if it had been written in the policy, so that the party could not recede, that might have been sufficient. He allowed that the declaration, in such a case, was no part of the contract, and did not require any further assent of the assurers, but that it must be communicated in such manner that the assured could not recede from it; and it was held that the declaration of value must have been made before the loss, in order to change an open into a valued policy. If this policy had been expressed in the same general terms, the declaration that was made here might have been sufficient. But the power given in this policy is not general, but restricted. It requires not only a declaration, but a mutual — 257 — agreement, and an endorsement in writing on the policy. This is a part of the written contract. From all that was done here, the assured might himself have receded. Had the goods arrived safely at Boonville, and the assured had then refused to make the endorsement on the policy and pay the premium, it is not apparent how the premium could have been recovered from him on a risk which, by the express terms of the policy, had never attached. If the application were accepted, and there was a mutual understanding that the endorsement should be made at a future day, upon a premium to be paid in the usual manner, it might amount to such a contract that an action at law would lie for special damages for a breach of it. There is authority to the effect that such an action may be maintained on a breach of contract in refusing to execute a policy of insurance according to agreement—1 Duer Ins. 66, III. But until this endorsement should be made, such agreement could not become any part of the contract of insurance contained in the policy. The acknowledgment of the receipt of the premium contained in the policy, and the usages as to the mode of settling the premiums, might be enough to remove all ground of objection on the score of the premium not having been in fact paid. The application may be deemed to have been sufficient. The entry of it in the cargo book of the office may be admissible to show an acceptance of the application', and a mutual agreement, so far as such agreement was necessary to authorize an endorsement in writing to be made on the policy, by the secretary, of the property therein mentioned, when the policy should be produced for the purpose. It may be conceded that it was contemplated by the policy, as signed, that the secretary should have this power. 'If the endorsement had been in fact made even after the loss occurred, and before it came to the knowledge of either party, it nevertheless would have been valid and binding—Halleck v. Ins. Co., 2 Dutcher, 268 ; but it was not done. The result necessarily is, that there was no contract of insurance ; no policy on these goods within the terms of the — 258 — written instrument. The power given by the policy had never been exercised at all in the manner therein required; and the company had signed no other contract of insurance on these goods. It does not appear that the secretary had any power to waive the written policy, or to make a contract of insurance in any other than the usual mode. We find no evidence in the record that he did in fact undertake to make any such waiver. It merely amounts to this, (which often happens,) that the party, by want of proper diligence and attention, had failed to get done what was necessary to be done, in order to make a binding contract. We think the first instruction given for the plaintiff was eroneous. The second instruction'which was refused for the defendant should have been given. In- the refusal of the rest we see no material error. Judgment reversed and the cause remanded. Judge Wagner concurs ; Judge Lovelace absent.