Insurance Company v. Folsom
85 U.S. 237 (1873)

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U.S. Supreme Court

Insurance Company v. Folsom, 85 U.S. 18 Wall. 237 237 (1873)

Insurance Company v. Folsom

85 U.S. (18 Wall.) 237

Syllabus

1. The doctrine reasserted, as often adjudged in this Court before, that where a case is tried by the circuit court under the Act of March 3, 1865, if the finding be a general one, this Court will only review questions of law arising in the progress of the trial and duly presented by a bill of exceptions, or errors of law apparent on the face of the pleadings.

2. Under the act above named, the circuit court is not required to make a special finding.

3. Where parties mean to insure a vessel "lost or not lost," the use of that phrase is not necessary to make the policy retrospective. It is sufficient if it appear by the description of the risk and the subject matter of the contract that the policy was intended to cover a previous loss.

4. Where it policy of insurance, following the exact language of the application, insured on the 1st of March, 1869, a vessel then at sea, "at and from the 1st day of January, 1869, at noon, until the lst day of January, 1870, at noon," nothing being said in either policy or application as to "lost or not lost" nor about who was the master of the vessel, nor as to what voyage she was on, held, on a suit on the policy -- and the company not having shown that the name of the master or the precise destination were material facts -- that the application had no tendency to show that the assured, when he made the application, did not communicate to the defendants all the material facts and circumstances within his knowledge and answer truly all questions put to him in regard to those several matters.

On the 6th of January, 1869, the schooner B. F. Folsom (John Orlando, master), and owned by a person whose name she bore, Mr. B. F. Folsom, resident in Philadelphia, together with Orlando, the captain and husband, sailed from Boston for Montevideo and Buenos Ayres. When out six days she sprung a leak, and in a few days afterwards became wholly disabled. Another vessel, bound for Bremen, passing along, took off all aboard and carried them to Bremerhaven, an outer port of Bremen, where, on the 18th of February, 1869, all were safely landed. The vessel itself was lost. At Bremerhaven, the master being wholly without funds or credit, could not telegraph. But he wrote two days after his arrival -- that is to say he wrote on the 20th of

Page 85 U. S. 238

February, to Mr. Folsom, at Philadelphia, and mailed the letter on the day on which it was written.

On the 1st of March, 1869, the Mercantile Mutual Insurance Company of New York insured the vessel, valued at $35,000, on Folsom's application, "at and from the first day of January, 1869, at noon, until the first day of January, 1870, at noon," nothing being said in the policy about "lost or not lost," nor about who was the master of the vessel, nor on what voyage she then was.

The letter of the master to Folsom which had been mailed at Bremen on the 20th of February, 1869, arriving in due course at Philadelphia was received by Folsom, and the loss of the vessel being indisputable, Folsom claimed the insurance money. The company declining to pay, he brought suit in ordinary form on the policy. Plea, the general issue.

The cause was tried without a jury, the jury having been waived by a stipulation duly filed, pursuant to the Act of Congress of March 3, 1865, which authorizes such mode of trial and enacts in regard to it, [Footnote 1]

"The findings of the court upon the facts, which findings MAY be either general or special, shall have the same effect as the verdict of a jury. The rulings of the court in the case, in the progress of the trial, when excepted to at the time, may be reviewed by the Supreme Court of the United States upon a writ of error, or upon appeal, provided the rulings be duly presented by a bill of exceptions. When the finding is special, the review may also extend to the determination of the sufficiency of the facts found to support the judgment."

On the trial, the policy having been put in evidence and it being admitted that the proper preliminary proofs of loss and of interest had been furnished by the plaintiff to the company, the plaintiff rested. The record proceeded:

"Whereupon the counsel for the said defendant did then and there insist before the judge of the said circuit court, on the behalf of the said defendant, that the said several matters so produced and given in evidence on the part of the said plaintiff,

Page 85 U. S. 239

as aforesaid, were insufficient and ought not to be admitted or allowed as decisive evidence to entitle the said plaintiff to a verdict. But to this the counsel for the said plaintiff did then and there object, and insist before the judge of the said circuit court that the same were sufficient and ought to be admitted and allowed to entitle the said plaintiff to a verdict, and the judge of the said circuit court did then and there declare and deliver his opinion, that the said several matters so produced and given in evidence on the part of the said plaintiff were sufficient to entitle the said plaintiff to a verdict."

To this ruling the defendant excepted.

The insurance company then showed that on the 22d of February, 1869, there had been published in various newspapers in New York, as also in two newspapers in Philadelphia, this telegraphic dispatch:

"LIVERPOOL, February 21"

"The Orlando, from Baltimore for Buenos Ayres, has been lost at sea. Crew saved and landed at Bremerhaven."

Folsom had seen and read this dispatch, and the insurance company which took, at its office in New York, the papers containing it kept what was called a dispatch book, in which the dispatch, together with records of seventeen other marine disasters, was, on the same 22d of February when it appeared, posted by a clerk, whose duty it was to post in such book notices of all marine disasters. Over the dispatch was written in large letters "ORLANDO."

It was admitted by the plaintiff that in Lloyd's Register there was no schooner named Orlando, but that there was a bark named Orlanda, a whaler, and that a bark of the name of Orlando had been owned, within two or three years, by a person who was then a partner of the plaintiff, and that at the time when he applied for the insurance, he did not call the company's attention to the publication which had appeared in the papers, and that he made the application himself.

The company, in turn, admitted that in the Register for the year 1869, which they used in their office, as in the

Page 85 U. S. 240

Register of 1868, which they also had used, the schooner "B. F. Folsom" was rated, and that under such name and rating there appeared the name of "J. Orlando, captain."

The company then offered in evidence Folsom's application for insurance, which was in these words:

"Insurance is wanted by B. F. Folsom for account of whom it may concern, loss, if any, payable to him, for $3,000, on schooner B. F. Folson, vessel valued at $35,000, and to be insured at and from the first day of January, 1869, at noon, until the first day of January, 1870, at noon."

The purpose of the offer of this evidence was apparently to show that in applying for insurance, Folsom had suppressed the name of the master, Orlando, and the ports to which the vessel was sailing, to-wit, Montevideo and Buenos Ayres, and so to bring on the inference that in the application he meant to divert the company's recollection or attention from the dispatch previously received by it and on its books, in which it was mentioned that a vessel, where the peculiar name of "Orlando" appeared, and which vessel the dispatch mentioned was on her way to Buenos Ayres, as one port, had been lost at sea.

The plaintiff objected to the reception of the evidence on the ground that the application was merged in the policy, and that the plea did not allege that the policy was obtained by any fraud or misrepresentation. The court rejected the evidence.

The company's counsel then requested the court to rule on numerous propositions, substantially as follows:

First. That as the loss occurred before the issuing of the policy, and the words, "lost or not lost," were not contained therein, the insurance never took effect, and that therefore the plaintiff could not recover.

Second. That at the time of the application for insurance, and the issuing of the policy, the plaintiff ought to have communicated to the company:

(a) The existence of the dispatch appearing in the newspapers.

Page 85 U. S. 241

(b) That he had seen it.

(c) The surmises or conjectures, if any, which he had with reference to the same.

Third. That it was incumbent upon the plaintiff to prove affirmatively, that at the time of application for insurance and of the issuing of the policy, he had communicated to the company the information that the vessel had sailed on a voyage from Boston to Montevideo and Buenos Ayres, and that the name of her master was John Orlando.

Fourth. That the master having failed to advise the owner by telegraph of the loss of the vessel, the plaintiff could not recover.

But the judge of the circuit court refused to rule in accordance with any one of these several requests, to which refusals the counsel for the defendant excepted.

Both parties here rested. The record proceeded:

"And the counsel for the defendant, after the putting in of the evidence was completed, and before the conclusion of the trial, further insisted that the matters so proved and given in evidence, on the part of the said defendant, as hereinbefore set forth, taken in connection with the matters proved and given in evidence, on the part of the plaintiff, as hereinbefore set forth, were sufficient and ought to be admitted and allowed as decisive evidence to entitle the said defendant to a decision in their favor, and to bar the said plaintiff of his action aforesaid, and did then and there pray the said court to admit and allow the said matters so proved and given in evidence, in connection as aforesaid, to be conclusive evidence in favor of the said defendant, to entitle them to a decision in their favor and to bar the said plaintiff of his action aforesaid; but the said court decided that the matters so proved and given in evidence on the part of the said defendant, taken in connection with the matters so proved and given in evidence on the part of the said plaintiff, were not sufficient to bar the said plaintiff of his action aforesaid, and refused to make and render its decision in favor of the said defendant, but found in favor of the plaintiff upon the evidence for the sum of $3,348.20, to which decision the said counsel for the defendant then and there duly excepted. "

Page 85 U. S. 242

Thereupon the counsel for the defendant requested the court to make the certain special findings of fact [setting them out], to the end that the same might be reviewed. The record proceeded:

"But the court refused to make any special findings of fact herein, to which refusal the counsel for the defendant did then and there except."

The company brought the case here on error.

Page 85 U. S. 246

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