McLanahan v. Universal Insurance Company
26 U.S. 170 (1828)

Annotate this Case

U.S. Supreme Court

McLanahan v. Universal Insurance Company, 26 U.S. 1 Pet. 170 170 (1828)

McLanahan v. Universal Insurance Company

26 U.S. (1 Pet.) 170

ERROR TO THE CIRCUIT COURT

FOR THE DISTRICT OF MARYLAND

Syllabus

Insurance. It is doubtless within the province of a court, in the exercise of its discretion, to sum up the facts in the case to the jury and submit them with the inferences of law deducible therefrom to the free judgment of the jury. But care must be taken in all such cases to separate the law from the facts and to leave the latter in unequivocal terms to the jury as their true and peculiar province.

An application for a new trial on motion after verdict addresses itself to the sound discretion of the court, and if, upon the whole case, the verdict is substantially right, no new trial will be granted, although there may have been some mistakes committed on the trial. The application is not a matter of absolute right, but rests in the judgment of the court, and is to be granted only in furtherance of justice. On a writ of error bringing the proceedings on the trial by bill of exceptions to the cognizance of the appellate court, the directions of the court below must then stand or fall upon their own intrinsic propriety as matters of law.

Every ship must, at the commencement of the voyage insured, possess all the qualities of seaworthiness and be navigated by a competent master and crew.

Seaworthiness in port, or lying in the offing, may be one thing, and seaworthiness for a whole voyage quite another.

A policy on a ship "at and from a port" will attach although the ship be at the time undergoing extensive repairs in port so as, in a general sense, for the purposes of the whole voyage, to be utterly unseaworthy.

What is a competent crew for the voyage -- at what time such crew should be onboard -- what is proper pilot ground -- what is the course and usage of trade, in relation to the master and crew being on board when the ship breaks ground for the voyage -- are questions of fact dependent upon nautical testimony and exclusively within the province of the jury.

The contract of insurance is one of mutual good faith, and the principles which govern it are those of an enlightened moral policy. The underwriter must be presumed to act upon the belief that the party procuring insurance is not at the time in possession of any fact material to the risk which he does not disclose, and that no known loss had occurred which by reasonable diligence might have been communicated to him.

If a party, knowing that his agent is about to procure insurance for him, withholds information for the purposes of misleading the underwriter, it is a fraud and vitiates the insurance.

Where a party orders insurance and afterwards receives intelligence material to the risk or has knowledge of a loss, he ought to communicate it to the agent by due and reasonable diligence, to be judged under all the circumstances of each particular case, if it can be communicated, for the purpose of countermanding the order or laying the circumstances before the underwriter.

What constitutes due and reasonable diligence is a question of fact for the jury.

Page 26 U. S. 171

The accidental concealment of the time of the sailing of a vessel would not prejudice the insurance unless material to the risk; if fraudulently intended, it might not mislead, and whether fraudulent or not is matter of fact for the jury.

The material ingredients of a question of the importance of concealing the time of a vessel's sailing are mixed up of nautical skill, information, and experience, and are in no sense judicially cognizance as matters of law. It seems that this question does not cease to be a question of fact when the vessel is to sail from a port abroad.

Little stress ought to be laid upon general expressions falling from judges in the course of trials. Where the facts are not disputed, the judge often suggests in a strong and pointed manner his opinion as to their materiality and importance, and his leading opinion of the conclusion to which the facts ought to conduct the jury. This ought not to be deemed an intentional withdrawal of the facts or the inferences deducible therefrom from the cognizance of the jury, but rather as an expression of opinion addressed to the discretion of counsel, whether it would be worthwhile to proceed further in the cause. And the like expression in summing up any cause to the jury must be understood by them merely as a strong exposition of the facts, not designed to overrule their verdict, but to assist them in forming it. And there is the less objection to this course in the English practice because, if the summing up has had an undue influence, the mistake is put right by a new trial upon an application to the discretion of the whole court. This is so familiarly known that it needs only be stated to be at once admitted.

The question of materiality of the time of the sailing of the ship to the risk is a question for the jury under the direction of the court, as in other cases. The court may aid the judgment of the jury by an exposition of the nature, bearing, and pressure of the facts, but it has no right to supersede the exercise of that judgment, and to direction absolute verdict as upon contested matter of fact, resolving itself into a mere point of law.

The action, in the Circuit Court for the District of Maryland, was instituted by the plaintiffs in error on a policy of insurance in the usual form, and a verdict was rendered for the defendants, under the opinion of the court, upon the first of nine exceptions taken by the plaintiffs.

The material facts in the case were:

Insurance was effected in Baltimore in the name of Thomas Tenant, to the amount of $10,000, on the brig Creole for a voyage from Havre de Grace to New Orleans, with liberty to touch and trade at Havana. The policy was dated upon 22 December, 1823. The insurance was made for the plaintiffs, the sole owners of the vessel, under the following circumstances:

John Joseph Coiron, one of the plaintiffs, while at Havre de Grace, on 19 October, 1823, addressed to Mr. John Stoney of Charleston, the following letter:

"Havre, October 19, 1823"

"Mr. John Stoney, Charleston:"

"DEAR SIR: Please to have in red, for my account, for the

Page 26 U. S. 172

account and risk of whom it may concern, $10,000 on the brig Creole, of New Orleans, Captain Jacob Goodrich, for New Orleans, touching at the Havana. The brig and boats in the best order, having a roundhouse on deck, containing fourteen births; the crew are seventeen in all. We intend sailing tomorrow. I have with me my family, consisting of two children and two nephews. The wind having shipped round suddenly, I write this in haste; my first will be more satisfactory to you, for particulars. The new Georgia upland cotton, twenty sous; rice, thirty francs."

"Your devoted servant and friend,"

"JOHN JOSEPH COIRON"

And also another letter, as follows:

"Duplicate"

"Havre, October 20 1823"

"Mr. John Stoney, Charleston:"

"DEAR SIR: I have yesterday requested you to have insured, on my account, for the account of whom it may concern, $10,000 on the brig Creole, of New Orleans, Captain Jacob Goodrich, from this port back to New Orleans, touching at the Havana, the vessel and boats in the best order, having a roof on deck containing fourteen births, manned by seventeen hands. You know the vessel -- I have only to add, that I have made a thousand dollars' worth more of repairs and improvements on her. She is now a very convenient packet. I will feel gratified to hear from you at the Havana. I intend but making a very short stay there, having two children and two nephews with me and being anxious to meet Mrs. C., I cannot give you any favorable information respecting business in this part of Europe."

"With the pleasing expectation of being soon near you, I remain, respectfully, dear Sir, your devoted servant and friend,"

"JOHN JOSEPH COIRON"

This letter was enclosed in another, addressed by Quartier & Drogy, of Havre, to Mr. Stoney, dated 23 October, 1823, and stamped with the postmark of Savannah, December 10, which, with the endorsements thereon, were as follows:

"P. Hesperus"

"Havre, October 23 1823"

"John Stoney, Esq., Charleston:"

"SIR: We are indebted to our mutual friend, Mr. J. J. Coiron, from whom we beg leave to hand you the enclosed letter for an introduction to your respectable firm, and should feel

Page 26 U. S. 173

particularly happy if it became the means of an active correspondence between us, the produce of your country, and particularly cotton being always of an easy and frequently advantageous sale in this part of France on account of the vicinity of the metropolis and the principal manufacturing towns, which gives Havre a decided preference over the other commercial ports of France. Georgia short staple sells at 27 c. 29, and the stock on hand not considerable, few arrivals being expected until the new crop, which can hardly reach our market before the month of December. It would, however, not be prudent to speculate on the present prices, as they will be likely to give way on arrival of the new crop and occasion considerable losses. Our opinion is that purchases ought to be made at from 11 to 13d, and not to exceed 14d, to offer a benefit here."

"Should you feel disposed to enter into a connection of business with us and honor us with an answer, we could, if you are so inclined, commence with an adventure of a hundred bales of cotton for mutual account, and successively enlarge the speculation if the result prove satisfactory. As to the reimbursement for our share, we authorize you to draw on us, at Paris, at sixty or ninety days sight, if the exchange be advantageous, else we may either make you remittance or open you a credit at New York. In case it should suit you to speculate for your own account, we beg to offer you the facility of an anticipation of half the amount of the consignments you may please to entrust to our care on receipt of the bills of lading and order for insurance. We are also ready to offer the same facilities on shipments which you may sway to us for account of other houses, and to grant you a share in the commission on the same."

"Would oblige us to render us the following service, viz., to procure acceptance of the enclosed bill of $420, sixty days sight, on Barbet & Esnard, of your city, and when accepted to hand the same to Mr. Sam Simon at Augusta, &c."

"Believe us, with due regard, Sir, your most obedient servants,"

"A. QUARTIER & DROGY"

"John Stoney, Esq., Charleston, S.C."

"No. 9, 1823 -- QUARTIER & DROGY, Havre, Oct. 23 -- Received 13 December."

"Hesperus"

The letter of 19 October, was dispatched in a single form from Havre on the 20th by a vessel sailing on that day for Philadelphia, and was received by Mr. Stoney on 15 December -- a duplicate of the letter of the 20th was dispatched on 23 October, by the Hesperus via Savannah.

Page 26 U. S. 174

On 12 December, 1823, Mr. Stoney applied to the Fire & Marine Insurance Company, and to the Union Insurance Company in Charleston, for insurance on the Creole, and both offices refused the risk, upon the ground that they ought to have received account of the arrival of the brig before that time. The offers were withdrawn, and upon 13 December, he wrote to Thomas Tenant, Esq., at Baltimore, the following letter. The letter was postmarked at Charleston on the day of its date, and was received in Baltimore by Mr. Tenant on Saturday, 20 December, in due course of mail.

"Charleston, 13 December, 1823"

"THOMAS TENANT Esq., Baltimore: "

"DEAR SIR -- I received the day before yesterday a letter from John Joseph Coiron, via Savannah (extract annexed), in which he requests me to have insurance effected on the Creole on his account and others, valued at $10,000. The two offices here are afraid of their own shadow, and will not underwrite her. I must therefore request the favor of your having the insurance done agreeable to his order annexed, and I will be answerable to you for the premium, &c. Good upland cotton 14 cents and declining. I have only to confirm my respects of the 3d inst, which I hope you have received before this. If the insurance cannot be done with you, please write to New York to have the same effected."

"Expecting the pleasure of hearing from you soon, I am, very respectfully,"

"Your most obedient servant,"

"JOHN STONEY"

"Duplicate. (Enclosed)"

"Havre, 20 October, 1823"

"MR. JOHN STONEY, Charleston: "

"DEAR SIR -- I have yesterday requested you to have insured, on my account, for the account of whom it may concern, $10,000 on the brig Creole, of New Orleans, Captain Jacob Goodrich, from this port, back to New Orleans, touching at the Havana. The vessel and boats in the best order, having a roof on deck, roundhouse containing 14 births, manned by 17 hands; you know the vessel. I have only to add that I have made $1,000 worth more of repairs and improvements on her. She is now a very convenient packet."

"Extract Thomas Tenant, Esq., of Baltimore, Maryland."

"No. 1. John Stoney, Charleston, 13 Dec., 1823, and 20 Dec. [mail], order for insurance. "

Page 26 U. S. 175

On 22 December, 1823, Mr. Tenant applied to the defendants, the Universal Insurance Company for insurance by the following written order for the same, and, upon the contract thus made, the policy was on the same day filled up and executed.

"I want insurance for account whom it may concern on the brig Creole, Jacob Goodrich master, at and from Havre de Grace to New Orleans, with liberty to touch and trade at Havana, against all risks -- and in case of loss, the same to be paid to me. The vessel valued, independent of freight, to this sum -- $10,000."

"The Creole was completely rebuilt and coppered at Charleston, S.C., in last summer, at great expense, and is now considered a remarkably fine vessel. She was, and I presume still is, owned by McLanahan and Bogart, and J. J. Coiron. The latter gentleman was on board her, and I presume is returning in her to New Orleans. He writes from Havre, under date of 20 October, but does not say when the brig would sail. She sails under a certificate of ownership. What will be the premium on the above risk?"

"THOMAS TENANT"

"By RICHARD G. COX"

"Baltimore, 22 Dec. 1823"

"8 percent"

"Accepted. T. Tenant"

On the day the insurance was so made, Mr. Tenant had made application in the same terms, to the Maryland, Chesapeake and Baltimore Insurance Companies, all of which declined the risk. The Phoenix Insurance Company, upon application, declined on the ground that the time of sailing was not ascertained; and the Patapsco Company were willing to take $5,000 dollars at 5 percent premium. The insurance effected by Mr. Tenant was the only one made upon the Creole.

No information relative to the loss of the Creole was received in Charleston, nor was her loss known there until 15 December, on which day the brig Panther arrived at Charleston, and about 2 o'clock, Mr. Stoney was informed thereof.

On 19 October, 1823, by entries in the log book of the Creole, at Havre, it was shown that "the brig was getting ready for sea on the 20th; at 9 A.M., the pilot came on board, and warped out into the basin, made sail, hove to in the offing, for the captain, owner, and passengers and crew." At 10 A.M. they came off, and the pilot left the vessel. Tuesday, 21 October, 1823, the following entry was made in the log book:

Page 26 U. S. 176

----------------------------------------------------------------------

TUESDAY, OCTOBER 21, 1823

----------------------------------------------------------------------

H. K. COURSES WINDS

----------------------------------------------------------------------

1 7 Commences with fine breezes and pleasant

2 7 weather. This day contains 12 hours, ending

3 7 at noon. At the commencement of the civil

4 7 account, that at midnight, Cape De Here bore

5 7 per compass S.S.E. distant five leagues. The

6 7 detention of Captain on shore, being in want

7 7 of the national certificate of the owners of

8 7 this brig, having been carried off by the former

9 7 captain, Leonard Fash, who was dismissed. It

10 7 was therefore necessary for the present

11 7 captain to go through the requisite formalities

12 7 before the American consul to prove the want of

this important document.

----------------------------------------------------------------------

The protest of Captain Goodrich, master of the Creole, stated that the Creole sailed from the port of Havre de Grace, on 21 October, 1823, bound for Havana in Cuba; that on 29 December, the brig was wrecked and lost on Sugar Key while on the voyage, and himself, the passengers and crew, were picked up, and some of them carried to New Orleans, by the ship Trumbull, which ship arrived on 17 December, 1823. The second mate of the Creole and five passengers, among whom were Mr. Coiron and his family, left the ship Trumbull off the Havana in the small boat of the Creole, and were landed there upon the same day. It also appeared from the evidence on the part of the defendants that the schooner Chase, Captain Richard S. Pinckney, master, sailed from Havana for Charleston from 1 to 3 December, 1823, and arrived at Charleston on the 12th of the same month. Captain Pinckney stated that he did not hear in Havana any report of the loss of the Creole. The schooner Eliza and Polly sailed from Havana for Charleston three hours before the Chase, and Captain Pinckney left Havana to go on board the Chase three hours after the sailing of the Eliza and Polly.

The following letter from Lemuel Taylor to Mr. Tenant was also admitted as evidence:

"Havre, June 28 1824"

"MY DEAR SIR: Your favor of the 5th instant was received yesterday, and in reply I have only to say that I left Havana on 3 December last in the schooner Chase,

Page 26 U. S. 177

Captain Pinckney, for Charleston, and that some days previous to my departure from Havana I see a person land on the wharf, a crowd seemed to get round him, and I see several taking him by the hand; I asked who he was; his name was mentioned, but I do not now recollect it, and that he was passenger in the brig Creole, from Havre, for Havana, and lost on some of the Keys; and that he was an old trader to Havana, from France, and had a large adventure on board. His name, and time of landing, can be ascertained at Havana if wanted. I never heard the case mentioned on the passage or in Charleston, and I am sure I never thought or heard of it after leaving Havana till one day, while in Baltimore, Mr. Parker, speaking of losses, mentioned the Creole, and I observed I heard of her loss while in Havana; he then observed they should have to refuse to pay the loss, and that it would be one of the most painful disputes he ever had as president on account of the great respectability of yourself and Mr. Stoney, and mentioned something about dates. From that time until I received your letter yesterday, I never heard or thought of the case. And I again repeat that I am sure I did not hear the loss mentioned on the passage or in Charleston, and that I see the passenger land as mentioned; and that his name and date can be furnished from Havana if wanted."

"I am, dear Sir, very sincerely, your friend and servant,"

"LEMUEL TAYLOR"

It was also proved that the northern mail closed in Charleston at ten o'clock in the morning, and generally arrived in Baltimore in seven days, exclusive of the day the letter was mailed, but never at an earlier day, though sometimes in eight or nine days; that it generally arrived from half past one to two o'clock, and the letters of Mr. Tenant were never delivered by the penny post to him, until after three o'clock on the day of the arrival of the mail. The hours of business of the insurance companies in Baltimore, terminated daily at two o'clock.

The fullest testimony was given of the high character of Mr. Stoney and Col. Tenant to negative the possibility of a presumption of intentional fraud or concealment on the part of either of those gentlemen relative to the loss of the Creole.

The plaintiff on the trial tendered nine exceptions to the opinions of the circuit court, all of which are stated on the record, but as in the opinion of this Court no notice is taken of any other than the first exception, and the court justified the refusal of the judges of the circuit court to sign the bill of exceptions to any other than the first, it is deemed necessary to insert the first exception only. That exception is as follows:

"The defendants, by their counsel, prayed the court to instruct

Page 26 U. S. 178

the jury that upon the whole evidence in the case, the plaintiffs are not entitled to recover and the verdict of the jury ought to be for the defendants, which instruction and opinion the court accordingly gave, and thereupon the plaintiffs, by their counsel, prayed leave to except, and that the court would sign and seal this, their bill of exceptions, which is accordingly done, this 10 January, 1826."

"G. DUVALL [Seal]"

"ELIAS GLENN [Seal]"

Page 26 U. S. 181

MR. JUSTICE STORY delivered the opinion of the Court.

The original action was brought by the plaintiffs in error against the defendants upon a policy of insurance

Page 26 U. S. 182

underwritten by the defendants

"whereby they caused Thomas Tenant, for whom it may concern, to be insured, lost or not lost, at and from Havre de Grace to New Orleans, with liberty to touch and trade at Havana,"

$10,000 upon brig Creole and appurtenances. The declaration averred the interest in the plaintiffs and a total loss by the perils of the seas. The defendants pleaded the general issue, and upon the trial, after the whole evidence on both sides had been given in, the court, upon the prayer of the defendants' counsel, instructed the jury, "that upon the whole evidence in the case," as stated, the plaintiffs are not entitled to recover, and the verdict of the jury, "ought to be for the defendants." Nine different instructions were then prayed for on behalf of the plaintiffs, which were all refused by the court upon the ground that the opinion already given, disposed of the whole cause upon its merits. If that opinion was correct, this refusal was entirely justifiable, for the court was under no obligation to discuss or decide other points when the plaintiffs' case was already shown to possess a fatal defect.

The general question, then, before this Court is upon the propriety of the instruction so given to the jury.

A suggestion has been thrown out at the bar that this instruction was not intended to be positive and absolute, but merely advisory to the jury; that it was not meant to take away the right of the jury to decide freely on the facts, but merely to offer for its consideration those views which the court had arrived at and which it might at all times properly suggest to the jury. It is doubtless within the province of a court, in the exercise of its discretion, to sum up the facts in the case to the jury and submit them, with the inferences of law deducible therefrom, to the free judgment of the jury. But care should be taken in all such cases to separate the law from the facts and to leave the latter in unequivocal terms to the jury as its true and peculiar province. We do not, however, understand that the present instruction was in fact or was intended to be merely in the nature of advice to the jury. It is couched in the most absolute terms, and imposed an obligation upon the jury to find a verdict for the defendants. It assumed there were no disputable facts or inferences proper for the consideration of the jury upon the merits, and that upon the unquestioned facts the plaintiffs had no legal right of recovery. It is in this view that it is open for the consideration of this Court, and in this view it will now be discussed as it was discussed in the argument at the bar.

Four grounds have been presented to justify the opinion of the circuit court, which, it is said, are apparent from the record itself, and each of them is decisive upon the case. The first is

Page 26 U. S. 183

the unseaworthiness of the ship at the time when she broke ground at Havre and commenced the homeward voyage, by reason of the master and a sufficient crew not being then on board. The second is the laying off and on, near the port of Havre, after departure on the voyage, for several hours waiting for the master to come on board, which, it is said, was an improper detention and amounted to a deviation. The third is the omission of Coiron to communicate to his agent or other persons in America the knowledge of the loss by the way of Havana, so as to countermand the order of insurance, which it contended was a fatal omission of duty. The fourth is the omission to mention the time of the vessel's sailing from Havre, in the letter of 20 October ordering the insurance, which, whether fraudulent or not, was a material concealment and misled the underwriters in the same manner as if there had been a representation that the time of the sailing was uncertain.

It is to be considered that these points do not come before this Court upon a motion for a new trial after verdict, addressing itself to the sound discretion of the court. In such cases, the whole evidence is examined with minute care, and the inferences which a jury might properly draw from it are adopted by the court itself. If, therefore, upon the whole case, justice has been done between the parties and the verdict is substantially right, no new trial will be granted, although there may have been some mistakes committed at the trial. The reason is that the application is not matter of absolute right in the party, but rests in the judgment of the court, and is to be granted only when it is in furtherance of substantial justice. The case is far different upon a writ of error bringing the proceedings at the trial by a bill of exceptions to the cognizance of the appellate court. The directions of the court must then stand or fall upon their own intrinsic propriety as matters of law.

The first and second points appear to us in the present case to resolve themselves into matters of fact, and the facts are too imperfect and too general to enable the Court to draw any legal conclusion from them either as to seaworthiness or deviation. There is no doubt that every ship must, at the commencement of the voyage insured, possess all the qualities of seaworthiness and be navigated by a competent master and crew. But how is this Court to arrive at the conclusion that the brig Creole was not in that predicament at the commencement of the present voyage? The argument assumes that the ship ought not to have got under weigh or proceeded into the offing until the master and all the crew necessary not for that act, but for the entire voyage, were on board. If the law were so, we have no means of ascertaining what crew was

Page 26 U. S. 184

actually on board at the time, nor whether the voyage was absolutely intended to be commenced on that day, nor whether the departure was merely contingent and dependent upon the master's procuring the proper ship's papers, and the breaking ground and standing off and on in the offing were preparatory steps only for this purpose, nor whether for such purposes the pilot and crew on board were not amply sufficient. But we are far from being satisfied that the law has interposed any such positive rule as the argument supposes. Seaworthiness in port, or for temporary purposes, such as mere change of position in harbor, or proceeding our of port, or lying in the offing, may be one thing, and seaworthiness for a whole voyage quite another. A policy on a ship at and from a port will attach although the ship be at the time undergoing extensive repairs in port, so as in a general sense, for the purposes of the whole voyage, to be utterly unseaworthy. What is a competent crew for the voyage; at what time such crew should be on board; what is proper pilot ground; what is the course and usage of trade in relation to the master and crew being on board when the ship breaks ground for the voyage are questions of fact, dependent upon nautical testimony, and are incapable of being solved by a court without assuming to itself the province of a jury and judicially relying on its own skill in maritime affairs. In this view of the point, it is not necessary to rely on the doctrine of Lord Chief Justice Abbott in Weir v. Aberdeen, 2 Barn. & Ald. 320, which goes the length of asserting that if there be unseaworthiness at the commencement of the voyage and the defect is cured before loss, a subsequent loss is recoverable under the policy. This is an important doctrine and well worthy of discussion whenever it come directly in judgment.

The like answer may be given to the point of deviation. This Court cannot intend that here there was any unnecessary delay in the commencement or course of the voyage. The delay, for the want of papers, may have been entirely justifiable, and indeed may have conduced to an earlier inception of the voyage by putting the ship in a situation to depart at a moment's warning. The usage of trade may be generally, or at least in that particular part, to get the ship under weigh as in this case and wait in the offing until the master is ready to come on board -- and that usage may be not only convenient and beneficial to all parties, but absolutely necessary in given cases from the nature of the port and the winds and seasons. How then can this Court undertake to decide as matter of law, apparent upon the record, that any delay admitting of such explanations, amounts to a deviation?

The next point is the omission of Coiron to communicate

Page 26 U. S. 185

information of the loss to his agent so as to countermand the order for insurance. The contract of insurance has been said to be a contract uberrimae fidei, and the principles which govern it are those of an enlightened moral policy. The underwriter must be presumed to act upon the belief that the party procuring insurance is not at the time in possession of any facts material to the risk which he does not disclose, and that no known loss had occurred which by reasonable diligence might have been communicated to him. If a party having secret information of a loss procures insurance without disclosing it, it is a manifest fraud which avoids the policy. If, knowing that his agent is about to procure insurance, he withholds the same information for the purpose of misleading the underwriter, it is no less a fraud, for under such circumstances the maxim applies qui facit per alium, facit per se. His own knowledge in such a case infects the act of his agent in the same manner and to the same extent which the knowledge of the agent himself would do. And even if there be no intentional fraud, still the underwriter has a right to a disclosure of all material facts which it was in the power of the party to communicate by ordinary means, and the omission is fatal to the insurance. The true principle deducible from the authorities on this subject is that where a party orders insurance and afterwards receives intelligence material to the risk or has knowledge of a loss, he ought to communicate it to the agent as soon as, with due and reasonable diligence, it can be communicated, for the purpose of countermanding the order or laying the circumstances before the underwriter. If he omits so to do, and by due and reasonable diligence the information might have been communicated so as to have countermanded the insurance, the policy is void. This doctrine is supported by the English as well as the American authorities, and particularly by Watson v. Delafield, 21 John. 152; 2 Caines 224; 2 John. 526, where most of the early cases are collected and commented upon, and it is well summed up by Mr. Phillips in his treatise on insurance, p. 96. We do not go over the cases at large, because there is no controversy as to the general result. The only matter for observation is whether the rule as to diligence, may not in certain cases be somewhat more strict, so as to require what in Andrew v. Marine Insurance Company, 9 John. 32, is called "extreme diligence," or what in Watson v. Delafield is left open for discussion as extreme diligence, the duty of communication where the countermand may not only probably but possibly arrive in season. We think, however, that the principle of the rule requires only due and reasonable diligence, to be judged of under all the circumstances of

Page 26 U. S. 186

each particular case, and that the expressions thrown out in the cases above mentioned were not so much intended to point out a stricter rule as to intimate that there might be cases in which a very prompt effort for communication might be fairly deemed not due and reasonable diligence, as where the loss takes place very near the port at which the insurance is to be made, and the means of communication, by mail or otherwise, are regular or numerous, or where, from the lapse of time and the date of the order for insurance, the party cannot but feel that every moment's delay adds many chances in favor of the insurance being made before knowledge of the loss. Under such circumstances, in proportion as the delay would properly give rise to stronger suspicion of intentional concealment, the duty of prompt communication would naturally seem to press upon the party a more vigilant diligence. The case of Wake v. Atty, 4 Taunton 494, lays down no new rule, but merely applies the old one to circumstances somewhat nice and peculiar in their presentation.

What constitutes due and reasonable diligence in cases of this nature is principally matter of fact for the consideration of a jury. When, indeed, all the facts are given and the inferences deducible therefrom, the question may resolve itself into a mere question of law. But it is in general impossible to lay down a fixed rule on the subject from the almost infinite variety of circumstances which may affect its application; much must depend upon the means of communication, the situation of the parties, the knowledge of conveyances, the fair exercise of discretion, as to time, mode, and place of conveyance, the course of trade, and nature of the voyage, and the probable chances of the countermand's being effectual. All these are matters of fit inquiry before the jury, and must from their very nature apply with very different force to different cases.

To bring these remarks home to the present case, there are certainly circumstances which deserve the most careful consideration of a jury upon the point of due diligence. The loss occurred at no given distance from the port of Havana, and if letters had been sent ashore at that port, there is strong reason to believe that they could have reached Mr. Stoney in time for a countermand, and at all events, if the loss had been made generally public at the Havana, the news might have reached Baltimore before the insurance. But the record does not contain facts enough to establish a want of reasonable diligence on the part of Mr. Coiron. It is nowhere stated that he was in a situation to make such a communication, or that he knew of the mate and crew being landed or that vessels were about to depart for the United States from Havana. Nor is it shown what were the means and facilities of communication

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in the course of trade and voyages between that port and the United States, regular or irregular, from which we might deduce his knowledge of these means and facilities. Nor is it shown that the parties contemplated a stoppage off the Havana, so as to put him upon diligence in writing; nor that this mode of conveyance of news was more certain or quicker than others which might have been resorted to in the ordinary course of the voyage of the ship Trumbull to New Orleans. We may indeed conjecture how these matters were by general surmise or personal information, but judicially we can know nothing beyond what the record presents of the facts; yet all these circumstances must or may be material to the point of due diligence. In their very essence they are matters of fact, and not conclusions of law.

The opinion, therefore, to which the learned counsel wish to conduct us, that the policy is void because there has been gross negligence in not countermanding the order for insurance, is one to which, upon this record, we cannot judicially arrive. It would be assuming the rights and exercising the functions of the jury upon matters not proved or wholly indeterminate in their own nature. This ground for maintaining the instruction of the circuit court, must then be abandoned.

The next point is the omission in the letter of 20 October of any mention of the time of the vessel's sailing. This is put to the court in a double aspect -- first as the concealment of a material fact and secondly, connecting the language of the letter with the accompanying circumstances, as a virtual representation that the vessel was not then ready or about to sail on the voyage.

Whether this omission in the letter was merely accidental or with design to mislead the underwriters, and whether, if so designed, it had the effect (which, upon the testimony in the case, would be a matter of serious doubt) it is not now necessary to inquire. If accidental, it would not prejudice the insurance unless material to the risk; if fraudulently intended, it might not in fact mislead, and whether fraudulent or not was matter of fact for the jury. That there was no virtual representation as to the time of sailing seems to us conclusively established by the language of the letter of Colonel Tenant requesting insurance. He there says "He (Coiron) writes from Havre, under date of 20 October, but does not say when the brig would sail." Now this letter in direct terms negatives any intention to represent any particular time of sailing. It leaves the question freely open to the underwriters, either for further inquiry or for any presumptions most unfavorable to the assured. The natural result ought to be that the underwriters should calculate the time of sailing as very

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near the date of the letter, so as to ask a premium equal to the widest range of risk, from the intermediate lapse of time. The underwriters had no right to presume that the ship would sail at some future indefinite period and to bind the assured to that presumption. The letter told them in effect that the assured would bind themselves to no representation as to the time of sailing, but asked for insurance whenever the ship might sail, be it on that day or any future day. In this view, the point as to representation vanishes, and the like consideration would in a great measure dispose of that of concealment.

But the question as to this latter point has been argued at the bar upon much more broad and comprehensive principles, upon which it seems proper for this Court to express an opinion, especially as this case may again undergo the consideration of a jury.

It is admitted that a concealment, to be fatal to the insurance, must be of facts material to the risk, and certainly of this doctrine there cannot at this time be any legal doubt. It is further admitted (and so is the unequivocal language of the authorities) that generally the materiality of the concealment is a question of fact for the jury. But it is said that there are exceptions from the rule, and that concealment of the time of sailing belongs to the class of exceptions, and is a question of law for the exclusive decision of the court. It is necessary to maintain this position in its full extent to extricate the present case from its pressing difficulties, and if this shall be successfully made out, it will still remain to be decided whether the facts stated in the record are sufficient to enable the court to pronounce the conclusion of law.

That the time of sailing is often very material to the risk cannot be denied; that it is always so is a proposition that will scarcely be asserted and certainly has never yet been successfully maintained. How far it is so must essentially depend upon the nature and length of the voyage, the season of the year, the prevalence of the winds, the conformation of the coasts, the usages of trade as to navigation and touching and staying at port, the objects of the enterprise, and other circumstances, political and otherwise, which may retard or advance the general progress of the voyage. The material ingredients of all such inquiries are mixed up with nautical skill, information, and experience, and are to be ascertained in part upon the testimony of maritime persons, and are in no sense judicially cognizable as matter of law. The ultimate fact itself which is the test of materiality -- that is, whether the risk be increased so as to enhance the premium -- is in many cases an inquiry dependent upon the judgment of underwriters and others who are conversant with the subject of insurance. In this very case

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the introduction of testimony was indispensable to show the usual length of the voyage, and it was quite questionable whether in a just sense the vessel could be deemed a missing vessel at the time of the insurance. Upon such a point it would not be a matter of surprise if different underwriters should arrive at different results. In the nature of the inquiry, then, there is nothing to distinguish the time of sailing of the ship from any other fact the representation of concealment of which is supposed to be material to the risk. It must still be resolved into the same element.

It has been said that there is no case in which the materiality of the time of sailing has been doubted where the ship was abroad at the time; whether this be so or not it is not important to ascertain, unless it could be universally affirmed (which we think it cannot) that the time of sailing abroad must always be material to the risk. If it may not always be material, the question whether it be so in the particular case is to be decided upon its own circumstances. Indeed we cannot perceive how the place of sailing, whether from a home or foreign port, can make any difference in the principle. The time of sailing from a home port may be material to the risk, and if so, the concealment of it will vitiate the policy, but whether material or not, opens the same inquisition into facts as governs in cases of foreign ports. There may be less intricacy in conducting it or less difficulty in arriving at a proper conclusion, but it is essentially the same process. The case of Fort v. Lee, 3 Taunt. 381, did not proceed upon the ground that the time of sailing from a home port was never material to be communicated, but that under the circumstances of that case, the underwriter, if he wished to know whether the ship had sailed, ought to have made inquiry. It was a mere application to the discretion of the court to grant a new trial where the plaintiff had obtained a verdict and there was no pretense of any misdirection at the trial. In Foley v. Moline, 5 Taunt. 145, the court said that there was no pretense for the proposition, as a general rule, that it was necessary to communicate to the underwriters whether the vessels on which an insurance was proposed had sailed or not. There might be circumstances that would render that fact highly material, as if the ship were a missing ship, or out of time. So that here, a denial of the proposition now asserted before us was in the most explicit terms avowed and acted on.

Two nisi prius cases before Lord Mansfield have been relied on to establish the supposed exception to the general rule of cases relative to the time of the sailing of the ship, in which it is argued that his lordship undertook to decide the point of materiality as matter of law and to give it as a rule to the

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jury. It is proper to remark that little stress ought to be laid upon general expressions of this sort by judges in the course of trials. Where the facts are not disputed, the judge often suggests in a strong and pointed manner his opinion as to the materiality of the concealment and his leading opinion of the conclusion to which facts ought to conduct the jury. This ought not to be deemed an intentional withdrawal of the facts or the inferences deducible therefrom from the cognizance of the jury, but rather as an expression of opinion addressed to the discretion of counsel whether it would be worthwhile to proceed further in the cause. And the like expression in summing up any cause to the jury, must be understood by them merely as a strong exposition of the facts, not designed to overrule their verdict, but to assist them in forming it. And there is the less objection to this course in the English practice because, if the summing up has had an undue influence, the mistake is put right by a new trial upon an application to the discretion of the whole court. This is so familiarly known that it needs only to be stated to be at once admitted. It is with reference to these considerations that the cases above alluded to should be examined.

The first is Ratcliff v. Shoobred, cited from Marshall on Insurance 290. It would certainly seem at the first view that Lord Mansfield did decide that concealment was material. But even by Mr. Marshall's report, brief as it is, it by no means appears that the materiality was in question at the trial, but only the effect of the concealment in avoiding the policy. The same case is reported more fully and more accurately by Mr. Park on Insurance, p, 290, where it is perfectly clear that the point of materiality was left to the jury.

"The question is [said his lordship] whether this be one of those cases which is affected by misrepresentation or concealment. If the plaintiffs concealed any material part of the information they received, it is a fraud, and the insurers are not liable,"

and the jury found a verdict for the defendant under this direction. So that the point was left fully open to them.

The next case is Fillis v. Berton, cited in Marshall on Insurance, p. 467, and reported also in Park on Insurance, p. 292. The insurance was on a ship from Plymouth to Bristol, and it appeared that the broker's instructions stated that the ship was ready to sail on 24 December, when in fact she had sailed on the 23d. Mr. Marshall states that Lord Mansfield ruled that this was a material concealment and misrepresentation, but Mr. Park, from whose work the report is professedly taken, uses no such expression. His words are Lord Mansfield said this was a material concealment and misrepresentation, and the jury hesitating, he proceeded to expound to

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it the general principles of law on the subject of misrepresentation and concealment, and he seems to have taken it for granted that the misrepresentation was material (as from the short duration of such a voyage might naturally be inferred), and that the only point was whether the ship had sailed or not. The same explanation disposes of the case of McAndrews v. Bell, 1 Esp. 373. Indeed, in any other view it would be impossible to reconcile these decisions with the judgment pronounced by Lord Mansfield and other judges upon more mature deliberation, when causes have been brought before them in bank. Take for instance what fell from the court upon the motion for a new trial in McDowell v. Praza, Doug. 247, 260; Shirley v. Wilkinson, Doug. 236; Hodgson v. Richardson, 1 Bl. 289; Littledale v. Dixon, 4 Bos. & Pul. 151, and Hull v. Cooper, 14 East 79. In the case of Maryland Insurance Company v. Ruden's Administrators, 6 Cranch 338, this Court expressed the opinion that

"it was well established that the operation of any concealment on the policy depends on its materiality to the risk, and that this materiality is a subject for the consideration of a jury."

That opinion was acted upon by the Court of Errors of New York in the case of New York Fireman Insurance Company v. Walden, 12 John. 513, where Mr. Chancellor Kent in a very elaborate judgment reviewed the authorities and laid down the doctrine in a manner that merits our entire approbation.

We think, then, that the exception insisted upon at the bar cannot upon principle or authority be supported, and that the question of materiality of the time of the sailing of the ship to the risk is a question for the jury under the direction of the court, as in other cases. The court may aid the judgment of the jury by an exposition of the nature, bearing, and pressure of the facts, but it has no right to supersede the exercise of that judgment and to direct an absolute verdict as upon a contested matter of fact, resolving itself into a mere point of law. If, indeed, the rule were otherwise, the facts in the record are not so full as to enable the Court to reach the desired conclusion. There is not sufficient matter upon which we could positively say that the time of sailing was in this case necessarily material to the risk.

For these reasons, the judgment of the circuit court must be

Reversed and the cause remanded with directions to award a venire facias de novo.

This cause came on, &c., on consideration whereof, it is considered by this Court that there is error in the opinion of the circuit court given to the jury upon the prayer of the

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defendants' counsel, that upon the whole evidence in the case as stated in the record, the plaintiffs are not entitled to recover, and that the verdict of the jury ought to be for the defendant, that opinion having withdrawn from the proper consideration of the jury matters of fact in controversy between the parties.

It is therefore further considered and adjudged that the judgment of the said circuit court in this case be and the same is hereby reversed, and that the cause be remanded to the said circuit court with directions to award a venire facias de novo.

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