The defendant, a fire insurance company, issued a policy of
insurance to the plaintiff, a cotton compress company, on "cotton
in bales, held by them in trust or on commission" and situated in
specified places. The cotton was destroyed by fire in those places.
The plaintiff received cotton for compression, and issued receipts
to the depositors, which said "not responsible for any loss by
fire." The holders of the receipts exchanged them with one or the
other of two railroad companies for bills of lading of the cotton,
which exempted the carrier from liability for loss or damage by
fire. On issuing the bills of lading, the railroad companies
notified the plaintiff of their issue, and ordered it to compress
the cotton. It was burned while in the hands of the plaintiff for
compression, after the bills of lading were issued. In a suit to
recover on the policy,
Held:
(1) It was competent for the plaintiff to prove at the trial
that it took out the policy for the benefit of the railroad
companies and in pursuance of an agreement between it and those
companies that it should do so; also that by like agreement it
collected from the railroad companies a specified sum for all
cotton compressed by it, as covering the compression, the loading,
and the cost of insuring the cotton; also that such customs of
business were known to the defendant when the policy was issued,
and that an officer of the plaintiff had stated to the agents of
the defendant, when the policy was applied for, that it was
intended to cover the interests of the plaintiff and of the
railroad companies; also what claims had been made on the railroad
companies by owners of cotton burned to recover its value.
(2) The railroad companies were beneficiaries under the policy,
because they had an insurable interest in the cotton and to that
extent were its owners, and it was held in trust for them by the
plaintiff.
(3) It was lawful for the plaintiff to insure in its own name
goods held in trust by it, and it can recover for their entire
value, holding
Page 133 U. S. 388
the excess over its own interest in them for the benefit of
those who entrusted the goods to it.
(4) The issuing of the bills of lading for the cotton did not
effect such a change in the possession of the cotton as to avoid
the policy under a provision in it making it void "if any change
take place in the possession of the subject of insurance."
(5) The plaintiff can recover for losses caused by the
negligence of the railroad companies in improperly exposing the
cotton to danger from fire.
(6) The exception "not responsible for any loss by fire" in the
receipts given by the plaintiff and the clause in the bills of
lading exempting the railroad companies from liability for loss or
damage by fire did not free the latter from responsibility for
damages occasioned by their own negligence or that of their
employs.
(7) The ruling that a common carrier may insure himself against
loss proceeding from the negligence of his own servants, made in
Phoenix Insurance Co. v. Erie Transportation Co.,
117 U. S. 312,
117 U. S. 324,
affirmed.
(8) The words in the policy "direct loss or damage by fire"
explained.
(9) The mere fact of the dwelling by the court below, with
emphasis, in its charge to the jury, on facts which seemed to it of
controlling importance, and expressing its opinion as to the
bearing of those facts on the question of negligence is immaterial
if it left the issue to the jury.
(10) Under a clause in the policy that it "shall not apply to or
cover any cotton which may at the time of loss be covered in whole
or part by a marine policy," such clause is not operative unless it
amounts to double insurance, which can exist our in the case of
risks on the same interest in property and in favor of the same
person.
(11) The right of action of the plaintiff accrued on the
occurring of the loss, and did not require that the railroad
companies should have actually paid damages for the loss of the
cotton.
This is an action at law, brought in the Circuit Court of the
United States for the Eastern District of Arkansas, by the Union
Compress Company, an Arkansas corporation, against the California
Insurance Company, of San Francisco, a California corporation, to
recover on a policy of insurance against fire issued by the latter
company to the former company on he second of November, 1887. By
the policy, the California Company insures the Compress Company,
for the term of thirty days from November 2, 1887 at noon, to
December 2, 1887 at noon, against all direct
Page 133 U. S. 389
loss or damage by fire, except as hereinafter provided, to an
amount not exceeding ten thousand dollars, to the following
described property, while located and contained as described
herein, and not elsewhere, to-wit:
"
Form of cotton policy. $10,000 on cotton in bales,
their own or held by them in trust or on commission, while
contained in the frame shed, 112 to 122, inclusive, and in back
shed and yard, 115 to 123, inclusive, North Main Street, and on
platforms adjoining and in street immediately between the sheds,
Sanborn's map of Little Rock, Arkansas, and it is agreed and
understood to be a condition of this insurance that this policy
shall not apply to or cover any cotton which may at the time of
loss be covered in whole or part by a marine policy; and it is
further agreed to be a condition of this policy that only actual
payment by bank check or otherwise for cotton purchased shall
constitute a delivery of cotton from the seller to the buyer, and
it is further agreed that this company shall be liable for only
such proportion of the whole loss as the sum hereby insured bears
to the cash value of the whole property hereby insured at the time
of fire, and it is further agreed that tickets, checks, or receipts
delivered to bearer shall not be considered as evidence of
ownership. Other insurance permitted without notice until required.
. . . In case of loss or damage to the property insured, it shall
be optional with the company, in lieu of paying such loss or
damage, to replace the articles lost or damaged with others of the
same kind and quality. . . . This entire policy, unless otherwise
provided by agreement endorsed hereon or added hereto, shall be
void . . . if any change . . . take place in the . . . possession
of the subject of insurance. . . . In case of any other insurance
upon the property hereby insured, whether to the same party or upon
the same interests therein or otherwise, whether valid or not, and
whether prior or subsequent to the date of this policy, the insured
shall be entitled to recover from this company no greater
proportion of the loss sustained than the sum hereby insured bears
to the whole amount insured thereon, whether such other insurance
be by specific or by general or floating policies, or by policies
covering only in excess of specified loss, and it is
Page 133 U. S. 390
hereby declared and agreed that in case of the assured holding
any other policy in this or any other company on the property
insured, or any part thereof, subject to the conditions of average,
this policy shall be subject to average in like manner. . . . If
this company shall claim that the fire was caused by the act or
neglect of any person or corporation, private or municipal, this
company shall, on payment of the loss, be subrogated to the extent
of such payment to all right of recovery by the insured for the
loss resulting therefrom, and such right shall be assigned to this
company by the insured on receiving such payment. . . . In case of
loss on property held in trust or on commission, or if the interest
of the assured be other than the entire and sole ownership, the
names of the respective owners, shall be set forth [in the proofs
of loss], together with their respective interests therein."
The complaint alleges that on the 14th of November, 1887, the
plaintiff was engaged in the business of compressing cotton, which
it received or held on its own account, or on commission, or in
trust for others at its warehouses and compress buildings and
adjoining sheds and platforms, situated at the foot of Main Street,
in the City of Little Rock, Arkansas; that it had on hand at that
date about 2,800 bales of cotton, delivered to it to be compressed,
and belonging to divers parties, the value of which equaled the sum
total of the insurance thereon, and that such cotton, whether owned
by the plaintiff or held by it on commission or in trust for
others, was insured against loss or damage by fire in 28 insurance
companies, which are named, in the several amounts stated opposite
their respective names, amounting in the aggregate to $142,500,
which included the defendant for the sum of $10,000. It then sets
forth the issuing of the policy by the defendant to the plaintiff,
a copy of which is annexed to the complaint, and that on the 14th
of November, 1887, all the cotton in bales contained on said
premises and so insured, was destroyed by fire, "together with a
large quantity of other cotton in possession of plaintiff at said
place, which was not insured by plaintiff."
The complaint then proceeds as follows:
"[That at the time that said cotton came to the possession of
the plaintiff, it
Page 133 U. S. 391
was engaged in the business of compressing cotton at its
compress in the Town of Argenta, opposite Little Rock and on the
north side of the Arkansas River, and that said cotton was
deposited with the plaintiff for compression by various owners
thereof, who delivered the same at the sheds and yards and adjacent
grounds in the said City of Little Rock, as described in said
policy, with directions that the same should be transported to said
compress by the plaintiff or some carrier employed for that purpose
by it, and that on the receipt of any bales of said cotton by said
plaintiff, it gave a receipt for the same to the owner thereof, and
that, according to a custom known to said depositors, to the
plaintiff, and to the St. Louis, Iron Mountain and Southern Railway
Co. and the Missouri Pacific Railway Co., of which it was a part,
and the Little Rock and Memphis Railroad Company, which were common
carriers, having and operating railroads of which both Argenta and
Little Rock were stations, said owners transferred said receipts to
either one or the other of said carriers, and received from said
carriers bills of lading for the transportation by said carriers of
said cotton to various places to which said cotton was then and
there shipped by said owners, with an agreement with said railway
companies that said cotton should not be shipped until it had been
compressed by the plaintiff. There was a standing and continuing
agreement between said plaintiff and said railway companies that
the plaintiff should proceed to compress said cotton, and all
cotton thus received, and should insure the same, after notice of
the execution of said bills of lading by said railway companies,
against loss by fire during the time that said cotton should be in
the hands of the plaintiff, for the purpose aforesaid, for a price
averaging from sixty to sixty-five cents per bale, to be paid by
said railway companies, respectively, when said cotton should be
compressed and delivered to said railway companies on their cars at
Argenta for transportation under said bills of lading at which time
said carriers should surrender to plaintiff the said receipts,
issued, as aforesaid at the time that said cotton was deposited
with the plaintiff for compression by the owners, as above stated;
that all of said cotton was in the custody of plaintiff
Page 133 U. S. 392
at the time of said loss, under and by virtue of said custom and
agreement, and that it was lost by the negligence of the servants,
agents, and employees of said railway companies, and that since
said loss said St. Louis, Iron Mountain and Southern Railway
Company has been sued in this Court by two of said consignees for
the value of part of said cotton above named, to-wit, the York
Manufacturing Company and Hazard and Chapin, and said railway
company defended said actions on the ground that said loss was not
occasioned by the negligence of said railway company, or its
servants and employees, and on a trial of said first-named cause it
was adjudged by this Court that said York Manufacturing Company and
said Hazard and Chapin recover from said railway company the value
of said cotton sued for, as aforesaid, and that since said
adjudication said railway company has paid said judgment, and the
value of a large part of the cotton, for which it had issued bills
of lading as aforesaid, and that several suits are now pending in
this Court against said Little Rock and Memphis Railroad Company,
brought by the consignee of portions of said cotton, for the
recovery of damages for the loss of said cotton by reason of the
negligence of said railroad company, which said suits are now
pending and undetermined. On said 14th day of November, 1887, the
plaintiff had in its possession at its sheds and premises above
mentioned, for purposes of compression, a large amount of cotton,
to-wit, over 3,000 bales. That of this number 2,700 bales of cotton
were held by this plaintiff for the St. Louis, Iron Mountain and
Southern Railway Company and the Little Rock and Memphis Railroad
Company. By said contract and agreement between plaintiff and said
railroads, this plaintiff took out the policies of insurance above
set out for the purpose of indemnifying this plaintiff against loss
and liability, and the said railroad companies against loss and
liability, by reason of the destruction of said cotton while it was
being held by plaintiff for purposes of compression. The St. Louis,
Iron Mountain and Southern Railway has been adjudged, as aforesaid
to pay a large sum of money, to-wit, $_____, and, in addition, has
paid a still larger amount because of its liability for such loss,
amounting in all, up to this date, to $72,209.58,
Page 133 U. S. 393
and has made demand therefor against the plaintiff for
reimbursement of said losses.]"
It also avers that the loss by fire on the cotton equaled the
insurance on it, and that the plaintiff has performed all the
conditions of the policy, and prays judgment for $10,000, with
interest.
The defendant moved to strike from the complaint the words
"together with a large quantity of other cotton in possession of
plaintiff at said place, which was not insured by plaintiff," and
also the foregoing part included in brackets. It also demurred to
the complaint on the ground that it did not state facts sufficient
to constitute a cause of action, and also demurred separately to
that part of it which is so included in brackets on the ground that
the facts therein stated did not tend to constitute a cause of
action. The court overruled the said motion and also the demurrer,
and the defendant excepted to both of those rulings. The defendant
then filed its answer, admitting the issuing of the policy and that
at the fire one hundred and twelve bales of cotton, belonging to
one Hanger, and held by the plaintiff in trust for Hanger, were
burned, for the loss of which the insurance companies named in the
complaint had paid the plaintiff $4,826.59, in full satisfaction
thereof, and of which sum the defendant paid its full portion of
the loss.
The answer denies the material allegations of the complaint and
avers that the greater portion of the cotton alleged to have been
lost at the fire was received by the plaintiff from the owners
thereof after the issuing of the policy; that the cotton burned was
first delivered by its owners to the plaintiff, and the plaintiff
gave to the owners receipts for it, which provided that the
plaintiff should not be liable for the loss of it by fire; that
afterwards, and after the policy was issued, the cotton was sold to
various persons, who became its owners, and the Missouri Pacific
Railway Company, the Little Rock and Memphis Railroad Company, and
the Little Rock, Mississippi River and Texas Railway Company,
common carriers of cotton for hire, issued their bills of lading
for the same to the purchasers, which provided that the carriers
should not be liable for the loss thereof by fire, and at the same
time such railroad
Page 133 U. S. 394
companies took up the receipts issued by the plaintiff to the
original owners, and surrendered them to the plaintiff, whereby the
possession of the cotton was changed, contrary to the provisions of
the policy, without any consent of, notice to, or knowledge by the
defendant; (7) that it is provided in the policy that it shall not
apply to or cover cotton which was at the time of loss covered in
whole or in part by marine policies, and at that time 2,172 bales
of the cotton alleged to have been burned, and of the value of
$101,973.73, were covered by marine policies, theretofore issued to
the respective owners of the cotton; (8) that after the railroads
had issued their bills of lading for the cotton, and before and at
the time of the fire, it was kept in a grossly negligent manner in
a dangerous public place, without being covered or sprinkled and
but a few feet from a railroad track, where locomotives of the
Missouri Pacific and the St. Louis, Iron Mountain and Southern
Railroads, emitting sparks, were constantly passing, by which
sparks the fire was kindled, and the cotton was destroyed by a fire
which occurred in broad daylight at about four o'clock P.M., and
which fire those two railroad companies, by the use of ordinary
care, could have extinguished by removing the bales first ignited,
or by putting out the fire by water from the hydrants which were
close by, and that none of the cotton was destroyed by the
negligence of the Little Rock and Memphis Railroad Company or its
employees.
The plaintiff demurred to certain paragraphs of the answer, and,
among them, paragraphs 7 and 8, as not stating facts sufficient to
constitute a defense. The court overruled such demurrer as to two
of the paragraphs, and sustained it as to paragraphs 7 and 8, to
which latter ruling the defendant excepted. Thereupon the case was
tried by a jury, which found a verdict for the plaintiff for
$9,491.96, on which a judgment was accordingly entered, to review
which the defendant has brought a writ of error.
The first four assignments of error on the part of the defendant
relate to the overruling of its motion to strike out part of the
complaint, the overruling of its demurrer to the complaint, and to
part thereof, and the sustaining of the demurrer of the plaintiff
to paragraphs 7 and 8 of the answer.
Page 133 U. S. 395
At the trial, the plaintiff offered evidence tending to prove
that it was engaged in the business of compressing cotton at the
Town of Argenta, which is on the north bank of the Arkansas River
directly opposite the City of Little Rock; that it received cotton
for compression at Argenta and also at the premises described in
the policy at Little Rock; that for cotton received at either place
it issued receipts to the depositors -- red receipts at Argenta and
green receipts at Little Rock -- a blank form of which, as it
appears in the bill of exceptions, if filled out, would read
thus:
"Little Rock, Arkansas, Nov. 1, 1887. Received by the Union
Compress Company. From John Smith. Account of John Doe. For
compression. Storage after ten days will be charged. Not
responsible for any loss by fire. Marks X, Y, Z. No, bales cotton,
65. RICHARD ROE, Superintendent;"
that the holders of such receipts took them to the freight
offices of one or the other of the two railway companies, the
Missouri Pacific Railway Company and the Little Rock and Memphis
Railroad Company, and those companies issued bills of lading for
cotton, which specified the number of bales and the marks, agreeing
to deliver the cotton at an address specified in the bill of
lading; that the same bills of lading covered cotton which was
received by the plaintiff at Argenta, and which actually was at
Argenta, and cotton received at Little Rock, and which actually was
at Little Rock; that one form of bill of lading was issued by the
Missouri Pacific Railway Company and two forms by the Little Rock
and Memphis Railroad Company; that it was claimed that each form
covered a portion of the cotton burned; that each form, by its
terms, exempted the carrier from liability for loss or damage by
fire, and that, as the cotton might pass through the custody of
several carriers before reaching its destination, each of them
provided that the legal remedy for loss or damages occurring in
transit should be only against the particular carrier in whose
custody the cotton actually might be at the time of the happening
thereof. The Missouri Pacific Railway Company in its bills of
lading reserved to itself the privilege of compressing all cotton
signed for on the bill of lading. The Memphis and Little Rock
Railroad Company did not reserve
Page 133 U. S. 396
that privilege, but in one of its two forms, which was a through
bill of lading to England, it stipulated for the benefit of any
insurance that might have been effected on the goods. There are
five of such foreign bills of lading, covering 158 bales of lost
cotton. Bills of lading covering 1,460 bales alleged to have been
burned were issued by the Missouri Pacific Railway Company. The
loss claimed on behalf of the latter company was for 1,463 bales.
The bills of lading issued by the Memphis and Little Rock Railroad
Company were for 992 bales, but the loss claimed was for 1,211
bales. By the bills of lading issued by the Missouri Pacific
Railway Company on the lost cotton, 884 bales were covered after
the date of the policy, and by those issued by the Memphis and
Little Rock Railroad Company 255 bales were covered after that
date.
It also appears by the bill of exceptions that on the issuing of
the bills of lading, the respective railroad companies notified the
plaintiff of their issue and ordered the cotton designated therein
to be compressed at Argenta; that all of the cotton transported
from Little Rock to Argenta was carried on the track and by the
cars of the Missouri Pacific Railway Company; that the Little Rock
and Memphis Railroad Company had no track, and ran no cars, near
the premises described in the policy; that the plaintiff paid the
Missouri Pacific Railway Company an agreed price for the
transportation of the cotton from Little Rock to Argenta, and that
the cotton was to be compressed after it arrived at Argenta, and
was there to be loaded on the cars of such of the two railroad
companies as its marks and the bills of lading called for, to be
transported by them to its destination.
The bill of exceptions further states that the plaintiff offered
evidence tending to prove that 2,670 bales of cotton, covered by
said bills of lading, were burned at the fire in question, while in
the hands of the plaintiff for compression, after the bills of
lading were issued, and at the place described in the policy.
The plaintiff also proved that in October and November, 1887,
there was an accumulation of cotton at the premises described in
the policy owing to the fact that the Missouri Pacific Railway
Page 133 U. S. 397
Company had not sufficient cars to transport the cotton to
Argenta as fast as it was received; that the cotton sheds were open
sheds, and were at the time of the fire full of cotton, which had
no tarpaulin or other cover over it, and stood within three or four
feet of the track of the Missouri Pacific Railway Company, over
which locomotives and trains passed several times daily; that after
the sheds were full, the cotton was stored in the street, leaving a
passage-way some four feet wide for foot passengers; that the two
railroad companies had no control over the cotton while so stored,
and could not obtain actual possession of it until the Missouri
Pacific Railway Company transported it to Argenta for compression,
but that that company could take it at any time across the river
for compression.
The defendant offered in evidence the proof of loss furnished by
the plaintiff to it, made out after the bringing of the suit,
alleging the total destruction by fire of 2,687 bales of cotton, in
addition to what was known as the Hanger cotton, and that the 2,687
bales were held by the plaintiff in trust or on commission -- that
is to say, to be compressed -- and were the property of various
persons; the plaintiff being interested in the same to the extent
of its charges, and stating the names of the consignees, and the
number of bales and their value pertaining to each consignee, no
allusion being made to any interest of the railroad companies.
1. The plaintiff offered evidence tending to prove that the
policy in suit was taken out by it for the benefit of the railroad
companies named in the complaint and in pursuance of agreements
between the plaintiff and those companies, by which the plaintiff
agreed to take out such insurance. The defendant objected to such
evidence on the ground that it was incompetent and in contradiction
of the terms of the policy. The objection was overruled, and the
defendant excepted.
The plaintiff also offered evidence tending to prove that, by
agreement between it and the railroad companies, it charged and
collected from them 13 cents per 100 pounds for all cotton
compressed by it, which charge was by agreement intended to cover,
and did cover, the compression of the cotton, the loading
Page 133 U. S. 398
of it on the cars at Argenta, and the cost of insuring it for
the benefit of the railroad companies. The defendant objected to
the evidence on the ground that it was immaterial, irrelevant, and
incompetent. The objection was overruled, and the defendant
excepted.
The plaintiff also offered evidence tending to prove that the
contracts and customs of business before stated were well known to
shippers and the defendant when the policy sued on was issued, it
having been stated to the agents of the defendant by an officer of
the plaintiff, when the policy was applied for, that it was
intended to cover the interests of the plaintiff and of the
railroad companies. The defendant objected to this evidence, but
the objection was overruled and the defendant excepted.
The plaintiff also offered evidence tending to prove that claims
had been filed against the Missouri Pacific Railway Company by the
owners of 1,463 bales of cotton burned at the fire, of the claimed
value of $72,735.58; that since the commencement of this suit, that
company had paid such claims to the amount of $65,000, and that the
balance had been adjusted by that company, and would be paid. The
defendant objected to the evidence on the ground that it was
immaterial, irrelevant, and incompetent, but the objection was
overruled, and the defendant excepted.
The plaintiff further offered evidence tending to prove that
claims had been filed against the Little Rock and Memphis Railroad
Company by the owners of 1,211 bales of cotton burned at the fire,
of the claimed value of $57,529.55, no part of which has been paid
by that company, though suits had been brought on several of the
claims, and were still pending. The defendant objected to the
evidence, on the ground that it was incompetent, irrelevant, and
immaterial, but the court overruled the objection, and the
defendant excepted.
After the close of the evidence, the defendant requested the
court to instruct the jury as follows:
"1. The policy of insurance of the defendant on which this
action is brought covered all goods in possession of the Union
Compress Company at the place designated in the said policy at the
date when said policy
Page 133 U. S. 399
was issued, which were held by the said Union Compress Company
under warehouse receipts issued to the owners of said cotton by
said company, and also all cotton subsequently, and during the life
of said policy, so received by the Union Compress Company. 2. The
policy in question insures the goods of the Union Compress Company
at the place designated. It also insures the Union Compress Company
to the extent of its liens upon, or charges against, all goods held
by it during the life of the policy, not its own, but held by it in
trust or on commission. It also insures the interest of the owners
of the legal title to such goods so held. It does not insure anyone
else. Any possible interest of any common carrier not an owner of
the goods, or any of them, in the place designated, is not insured
by said policy. 3. The jury are instructed to disregard all
evidence in the case tending to show that the insurance in question
was issued for the benefit of any railroad company not an owner of
any of the goods destroyed by fire, for the value of which recovery
is sought herein."
The court refused to give any of those three instructions, and
the defendant excepted to each refusal.
Page 133 U. S. 408
MR. JUSTICE BLATCHFORD, after stating the case as above,
delivered the opinion of the Court.
The foregoing exceptions, except the two which relate to the
sustaining of the demurrer to paragraphs 7 and 8 of the answer, may
be grouped together, because they relate to the same question. The
court refused to strike out the matter in the complaint which is
before recited in brackets, and also overruled the demurrer of the
defendant to that portion of the complaint, and on the trial the
plaintiff was permitted to introduce evidence tending to prove some
of the allegations contained in that part of the complaint. The
three instructions, before quoted, as asked by the defendant, and
not given, relate to the same matter. The defendant contends that
there was error in the action of the court covered by those
exceptions, and complains that the court treated the words in the
policy "their own, or held by
Page 133 U. S. 409
them in trust or on commission," as if they read, "on account of
whom it may concern;" that, as the plaintiff did not own the
cotton, the beneficiaries under the policy were its owners; that no
interest of any common carrier was covered by the policy; that it
was not ambiguous, and that no parol testimony was admissible to
aid in its interpretation or to show that the railroad companies
were intended to be beneficiaries under it. The view urged is that
the plaintiff did not own any of the cotton or hold any of it on
commission; that the insurance on goods held in trust was an
insurance only for the benefit of the owners of the cotton, and
that evidence of an intention to effect the insurance for the
benefit of one who was not the owner of the goods was inadmissible,
because it would contradict the policy.
But we think the positions taken on behalf of the defendant are
not sound. The title to cotton in the temporary custody of a bailee
for compression, for which receipts or bills of lading have been
given, is manifestly changing hands constantly. The language of the
present policy, insuring cotton, "their own, or held by them in
trust or on commission," accommodates such a state of things. In
the present case, the insurance was really taken out by the
railroad companies, and that fact was well known to the agents of
the defendant at the time the policy was issued. The railroad
companies had an insurable interest in the cotton, and to that
extent were the owners of the cotton, which was held in trust for
them by the plaintiff. Evidence of their ownership of the cotton
was admissible.
Home Ins. Co. v. Balt. Warehouse Co.,
93 U. S. 527,
93 U. S.
542.
The policy covered all the cotton which was placed in the hands
of the plaintiff by those companies. It was lawful for the
plaintiff to insure in its own name goods held in trust by it, and
it can recover for their entire value, holding the excess over its
own interest in them for the benefit of those who have entrusted
the goods to it.
De Forest v. Fulton Fire Ins. Co., 1 Hall
94;
Home Ins. Co. v. Balt. Warehouse Co., 93 U. S.
527,
93 U. S. 543;
Stillwell v. Staples, 19 N.Y. 401;
Waring v. Indemnity
Fire Ins. Co., 45 N.Y. 606;
Waters v. Monarch Fire Assur.
Co., 5 El. & Bl. 870;
Siter v. Morrs, 13
Penn.St.
Page 133 U. S. 410
218;
Johnson v. Campbell, 120 Mass. 449;
Fire Ins.
Assn. v. Merchants' & Miners' Trans. Co., 66 Md. 339;
London & Northwestern Railway v. Glyn, 1 El. & El.
652;
Phoenix Ins. Co. v.
Hamilton, 14 Wall. 504,
81 U. S.
508.
The words "held by them in trust" in this policy cannot properly
be limited to a holding in trust merely for an absolute owner when
it clearly appears that the railroad companies had an insurable
interest in the cotton and the plaintiff held the property in trust
exclusively for those companies. The reasoning of the cases where
the bailor was the owner of the goods insured by the bailee applies
equally to any person who, having an insurable interest in
property, entrusts it to another, and such bailor can, to the
extent of his insurable interest, claim the benefit of insurance
effected in his favor by his bailee. The original depositors of the
cotton surrendered to the railroad companies the receipts which
they had taken from the plaintiff, and those companies were thus
substituted in the relation to the plaintiff which before had been
held by such depositors. The railroad companies thus became the
beneficiaries of the trust, so far as the plaintiff was concerned,
because they thus became the persons to whom the plaintiff owed the
duty of bailment, and the persons entitled to demand the possession
of the property from the plaintiff. There was privity in the
plaintiff with the person who held its receipt, and privity with no
one else. This is a necessary and obvious result of the course of
business, and the business in question could not be carried on
under any other circumstances, so as to give protection by
insurance to the parties really interested.
The case is not varied or affected by the clause in the receipts
given by the plaintiff "not responsible for any loss by fire,"
because the relation of the plaintiff to the property entrusted to
it, and its duty to the bailor, determine the legal propriety of
the insurance for the benefit of the latter. In the present case,
the arrangement was that the railroad companies should pay to the
plaintiff, in connection with the charge for compressing, an
additional sum which would provide for the insurance of all cotton
in the possession of the plaintiff, for which the railroad
companies should issue bills of lading. The
Page 133 U. S. 411
defendant had notice that the insurance was effected in the
interest of the railroad companies, and it issued the policy in the
terms it did to include the protection of the railroad companies.
The fact that the same policy might protect the interest of other
persons in respect to cotton held for them by the plaintiff cannot
affect the question whether it protects the interest of the
railroad companies in respect to cotton held by the plaintiff for
them during the life of the policy. Nor is it material whether the
cotton was originally deposited by the railroad companies, or
whether their interest accrued through the subsequent transfer to
the railroad companies of receipts given by the plaintiff on a
deposit of cotton made by other parties.
(2) We come now to another groups of errors assigned. The
defendant requested the court to instruct the jury as follows:
"The policy in question provides that it shall be void if there
be any change in the possession of the insured property, except
under circumstances which have no bearing on this case. If the jury
believe from the evidence that after the policy in question was
issued, any common carrier, with the knowledge and consent of
plaintiff and under agreement with plaintiff, issued its bills of
lading for any of the cotton which at the date of the policy was or
thereafter came into possession of the plaintiff, the issuance of
such bills of lading, under the conditions of the policy, avoided
the policy as to all cotton covered by such bills of lading."
The court refused to give such instruction, and the defendant
excepted to the refusal. The court instructed the jury as
follows:
"By an agreement made between the plaintiff and the St. Louis,
Iron Mountain and Southern Railway Company and the Memphis and
Little Rock Railway Company, the plaintiff engaged to insure for
said railway companies, respectively, all cottons stored in the
compress sheds and yards of the plaintiff at the foot of Main
Street, Little Rock, when the railway companies or either of them
should notify the plaintiff of the issuance by them of bills of
lading therefor. This agreement was carried out, and on the day of
the fire, the plaintiff held insurance in various companies
aggregating the sum of $142,500.00 in
Page 133 U. S. 412
trust, and to indemnify the railway companies against loss or
damage by the fire of the cotton for which they had issued their
bills of lading and which was stored in the plaintiff's sheds and
yards described in the policy at the foot of Main Street."
The defendant excepted to this instruction.
The court also charged the jury as follows:
"As the plaintiff is a trustee, and insured the cotton for the
benefit of the railway companies, and has no separate claim of its
own on the property, it is only entitled to recover an amount equal
to its liability to the railroad companies -- or, in other words, a
sum that will make the railway companies whole for the cotton on
which they had issued bills of lading -- so that if the market
price of cotton produces a larger sum than the aggregate loss of
the railway companies -- and 2,670 bales at $50 per bale, if you
should find that was the number of bales and their value, produces
an amount slightly in excess of the claims of the railroad
companies -- then the plaintiff's recovery must be on the basis of
the latter sum; that is, one that makes the railway companies
whole. In no event is the market value of the cotton to be
increased, but it may be reduced by the difference between the
value and the amount that will satisfy the just claims of the
railway companies. What amount of cotton was burned for which the
railway companies had issued bills of lading, and which was covered
by policies taken out by the plaintiff, the value of the same, and
the amount of the just demands of the railway companies against the
plaintiff for the cotton so burned, are questions of fact to be
determined by you."
The defendant excepted to this charge.
The court also charged the jury as follows:
"This suit is brought on a policy of insurance issued by the
defendant's company to the Union Compress Company to indemnify the
railroad company for the loss of cotton, or for cotton that might
be burned after the railroad company issued its bills of lading for
it, and while it yet remained in the custody of the Compress
Company. Now the Compress Company, under its contract with the
railroad company, is bound to make good, by insurance, to the
railroad company any damages resulting to it
Page 133 U. S. 413
from the loss of cotton which the Compress Company held for the
railroad company after the railroad company had issued its bills of
lading therefor and notified it thereof."
The defendant excepted to this charge. The defendant contends
that although, under a proper construction of the policy, the
railroad companies may be regarded as properly beneficiaries under
it, the matters involved in the instructions so given by the court
were questions of mingled fact and law, and were erroneous in the
light of the facts proved by the plaintiff. The ground urged is
that the policy cannot be reconciled with any intent to insure a
railroad company against a loss caused by its own negligence
because the policy insures against "all direct loss or damage by
fire;" that therefore the only interest which the railroad
companies had in the cotton was a contingent interest arising from
their liability for damages for loss by a fire occurring through
their own negligence; that the interest alleged to have been
insured as that of the railroad companies was not such as could
have sustained a claim on a direct loss by fire, because it was a
contingent or doubtful interest, and not a certain or direct
interest; that the fire alone could not inflict any loss, and that
whether the railroad companies would suffer loss would depend on
the contingencies (1) whether or not their negligence caused the
loss, (2) whether the owner would be able to prove negligence in
the railroad companies, (3) whether the owner was innocent of
contributory negligence, and (4) whether the owner should make a
claim for loss against the railroad companies within the statute of
limitations.
Under this head, it is also urged that on the face of the policy
the insurance was on cotton held in trust by the plaintiff, in a
designated place, for thirty days after November 2d; that it was
claimed by the plaintiff, in the face of the policy, and
contradictory of its terms, that cotton covered by a bill of lading
issued November 8th, by the Missouri Pacific Rail way Company,
which was held in trust by the plaintiff, and was in the place
described, was not covered by the policy until the bill of lading
was issued; that if, as the defendant
Page 133 U. S. 414
alleges the fact to be, that cotton was covered by the policy
from the 3d to the 8th of November for the benefit of its owners,
there was no process known to the law by which the benefit of such
insurance could be transferred to the railroad companies without
action by either the owner or the insurer; that the fact that the
plaintiff understood that the insurance was for the benefit of the
owners of the cotton was shown by the practical construction put
upon the insurance by the plaintiff after the fire, in putting in a
claim on behalf of Hanger for 112 bales of cotton burned, not
covered by the bills of lading, and being paid for it, on behalf of
Hanger, as owner of the cotton, and that thus the plaintiff claims
that the insurance was for the owners of the cotton or for the
railroad companies, according to circumstances.
It is further urged that if the bills of lading changed the
possession of the cotton, it was at the time of the fire in the
possession of the railroad companies, and not in that of the
plaintiff, and the plaintiff had ceased to hold it in trust; that
in such case it was not insured, because of the provision in the
policy that any change in the possession should avoid the policy;
that if the bills of lading did not change the possession, there
could have been no insurance on behalf of the railroad companies,
because, in the absence of possession by them, they had no right to
insure and no contingent liability to loss, and that it was error
in the court to charge that at the time of the fire, the plaintiff
held insurance on cotton covered by bills of lading.
This Court is also asked to review its announcement of the
principle of law laid down in
Phoenix Ins. Co. v. Erie
Transportation Co., 117 U. S. 312,
117 U. S. 324,
that
"no rule of law or of public policy is violated by allowing a
common carrier, like any other person having either the general
property or a peculiar interest in goods, to have them insured
against the usual perils, and to recover for any loss from such
perils, though occasioned by the negligence of his own
servants."
It is also contended that the jury had a right to decide whether
or not the policy was issued on goods held in trust for the
railroad companies by the plaintiff, and whether or not
Page 133 U. S. 415
the plaintiff or the railroad companies held the cotton at the
time of the fire, and that these were not questions for the court
to decide.
In reply to these suggestions, it is to be said that the
exception of loss by fire contained in the receipts given by the
plaintiff, and in the bills of lading given by the railroad
companies, did not free them from responsibility for damages
occasioned by their own negligence or that of their employees. Nor
are we disposed to review our decision that common carriers can
insure themselves against loss proceeding from the negligence of
their own servants. The doctrine announced in the case cited has
been referred to with approval in the subsequent cases of
Orient Ins. Co. v. Adams, 123 U. S.
67,
123 U. S. 72,
and
Liverpool Steam Co. v. Phoenix Ins. Co., 129 U.
S. 397,
129 U. S.
438.
As to the suggestion that by the bills of lading the possession
of the cotton was transferred to the railroad companies, and that
the policy was avoided thereby, the answer is that the cotton was
still in the hands of the plaintiff, in its actual possession, and
upon its premises. At most, the railroad companies, by acquiring
the receipts of the plaintiff and issuing bills of lading for the
cotton, took only constructive possession of it, and the plaintiff,
retaining actual and physical possession of it, did not lose any
element of possession necessary to give it the right to effect
insurance for its own benefit, and as bailee or agent, for the
protection of the railroad companies. All that the railroad
companies acquired was the right to ultimate possession, which
passed to them by the transfer to them by the original depositors
of the cotton receipts given by the plaintiff.
As to the argument that no recovery can be had in the interest
of the railroad companies, because the injury to them depended upon
their liability for the negligence of their employees in causing
the fire, and the point taken in regard to the words of the policy,
"direct loss or damage by fire," the reply is that those words mean
loss or damage occurring directly from fire as the destroying
agency, in contradistinction to the remoteness of fire as such
agency. The books are
Page 133 U. S. 416
full of cases on that subject, and the meaning of the policy is
not doubtful. Remoteness of agency is the explosion of gunpowder,
gases, or chemicals, caused by fire; the explosion of steam
boilers; the destruction of buildings to prevent the spread of fire
or their destruction through the falling of burning walls, and so
forth. In the present case, the bales of cotton were physically
burned by the direct action of fire.
(3) The court also charged the jury as follows:
"Now you have heard the testimony, gentlemen, with reference to
the situation under which this cotton was placed, and the length of
time it remained there. If you think there is no negligence on the
part of the railroad company, then you will find that the railroad
company is not liable for this cotton. If you can say that that was
a proper place to store cotton, and that leaving a passageway there
of not exceeding four feet up and down, through which persons
passed at all hours of the day and night to the boat house and
skiff ferry, and it being a dry season, with three or four thousand
bales of cotton stored there --
then, if you say this is not
negligence, you excuse this railroad company, and to that extent
will disallow the claim of the plaintiff; but if you should so
find, I would be very much surprised at your verdict, and would not
be surprised if I should set it aside; but I will leave it for you
to say."
The defendant excepted to this instruction, and especially to
the italicized portion thereof.
It is urged that in this part of the charge the court did not
allude to facts proved which the defendant claimed disproved
negligence, and that thus the instruction was not a fair one as to
the facts; that the place of storage was selected and the cotton
was stored there by the owners of it, and not by the Memphis and
Little Rock Railroad Company; that no negligence can be imputed to
the latter on account of the unfitness of the place; that it had no
control over the cotton stored in that place, and had no track at
that place, the Missouri Pacific Railway Company having the track
there; that the Memphis and Little Rock Railroad Company had no
opportunity to obtain possession of the cotton until after it had
been compressed at Argenta; that the bills of lading of the
latter
Page 133 U. S. 417
company exempted it from liability for loss occurring on the
lines of other carriers, and the cotton was burned not on its line,
but on the line of the Missouri Pacific Railway Company; that the
court made no allusion to any of these matters as going to
establish the absence of negligence and liability on the part of
the Memphis and Little Rock Railroad Company; that the court
threatened the jury with its displeasure and the setting aside of
the verdict if the jury should bring in a verdict for the defendant
of that issue, and that this action of the court was erroneous.
But the mere fact of the dwelling by the court with emphasis
upon facts which seemed to it of controlling importance, and
expressing its opinion as to the bearing of those facts on the
question of negligence, is immaterial if the court left the issue
to the jury. In the charge, just before the passage complained of,
the court, in referring to the question of the liability of the
Memphis and Little Rock Railroad Company for the destruction of the
cotton, had said to the jury:
"It is for you to determine whether this railroad company was
not guilty of negligence, and was not at fault in leaving this
cotton in an exposed condition after it issued bills of lading
therefor,"
and in the clause of the charge objected to, the court expressly
states that it leaves the question of negligence to the jury.
On this subject, this Court said, in
Vicksburg &c.
Railroad v. Putnam, 118 U. S. 545,
118 U. S.
553:
"In the courts of the United States, as in those of England,
from which our practice was derived, the judge, in submitting a
case to a jury, may at his discretion, whenever he thinks it
necessary to assist them in arriving at a just conclusion, comment
upon the evidence, call their attention to parts of it which he
thinks important, and express his opinion upon the facts, and the
expression of such an opinion, when no rule of law is incorrectly
stated and all matters of fact are ultimately submitted to the
determination of the jury, cannot be reviewed on writ of
error."
See also Nudd v. Burrows, 91 U. S.
426;
Indianapolis &c. Railroad v. Horst,
93 U. S. 291;
St. Louis &c. Railway v. Vickers, 122 U.
S. 360.
Page 133 U. S. 418
(4) In the course of the trial, the plaintiff offered evidence
tending to prove that the contracts and custom of business stated
in the bill of exceptions were well known to shippers and to the
defendant when the policy sued on was issued, it having been stated
to the agents of the defendant by an officer of the plaintiff, when
the policy was applied for, that it was intended to cover the
interests of the plaintiff and of the railroad companies. The
defendant objected to the admission of the evidence, but the
objection was overruled, and the defendant excepted, and this is
alleged as error.
In this connection, it is urged that the complaint does not
allege any such knowledge on the part of the defendant, or any
intention on its part to issue its policy for the benefit of the
railroad companies. The case of
Hough v. People's Fire Ins.
Co., 36 Md. 398, is cited in support of this assignment of
error. But we think the evidence was admissible. In the
Hough case, the policy covered the merchandise insured,
"their own, or held by them in trust, or in which they have an
interest or liability." Parol evidence was held to be incompetent
which was offered to show that the policy did not cover merchandise
which was their own. The evidence would have contradicted the plain
terms of the policy. In the present case, the evidence offered was
admissible under the ruling in
Home Ins. Co. v. Balt. Warehouse
Co., 93 U. S. 527,
93 U. S. 542.
In that case, the Court says:
"It is no exception to the rule [governing the admission of
parol evidence] that when a policy is taken out expressly 'for or
on account of the owner' of the subject insured, or 'on account of
whomsoever it may concern,' evidence beyond the policy is received
to show who are the owners, or who were intended to be insured
thereby. In such cases, the words of the policy fail to designate
the real party to the contract, and therefore, unless resort is had
to extrinsic evidence, there is no contract at all."
See also Finney v. Bedford Ins. Co., 8 Met. 348;
Fire Ins. Assn. v. Merchants' & Miners' Trans. Co., 66
Md. 339;
Snow v. Carr, 61 Ala. 363.
Having issued the policy with notice that it was intended to
cover the interest of the railroad companies, the defendant is
Page 133 U. S. 419
estopped from asserting that the policy was intended to protect
only the legal owners of the cotton.
(5) It is alleged also that the court erred in sustaining the
demurrer of the plaintiff to paragraph 7 of the defendant's answer,
which alleged that at the time of the loss 2,172 bales of the
cotton alleged to have been burned were covered by marine policies
theretofore issued to the respective owners of the cotton, and
therefore, under the terms of the policy in this suit, such cotton
was not covered by it. It is alleged also as error, that the court
at the trial rejected, on the objection of the plaintiff and under
the exception of the defendant, evidence offered by the latter
tending to prove that that number of bales of the cotton covered by
the bills of lading, and alleged to have been burned, were at the
time of the fire covered by marine policies of insurance
theretofore issued to the respective owners of such cotton residing
in various portions of the United States and in England.
It is to be said in reply that paragraph 7 of the answer does
not show that the marine policies were on the same interest as that
covered by the fire policy. This element is necessary, because
otherwise the policy sued on would be of no practical force. As
soon as the consignees of the cotton were advised by telegraph of
its shipment, they would take out marine policies to cover their
own risk, and thus the fire insurance companies would obtain the
premiums of insurance from the railroad companies, and immediately
avoid all risk because of the taking out of the marine policies.
North British Ins. Co. v. London, Liverpool & Globe Ins.
Co., 5 Ch.D. 569. The question of the legal effect of the
contribution clause of the policy, before recited, is not presented
by the record.
The objection alleged at the trial to the introduction of
evidence as to the marine policies was made on the ground that it
was immaterial and irrelevant, and that the insured knew nothing of
those policies, and had no interest in them. This was the objection
which was sustained, and the allegation of paragraph 7 of the
answer was that the marine policies had been issued to the
respective owners of the cotton. It did not appear that either the
insurer or the insured had any previous
Page 133 U. S. 420
knowledge of the existence of the marine policies, nor did it
appear whether they were issued before or after the date of the
fire policy. The issuing of the marine policies, in order to have
any effect in this case, must amount to double insurance. In no
other view can the defendant have any interest in the question of
marine insurance. Double insurance exists only in the case of risks
upon the same interest in property and in favor of the same person.
North British Ins. Co. v. London, Liverpool & Globe Ins.
Co., 5 Ch.D. 569;
Lowell Mfg. Co. v. Safeguard Fire Ins.
Co., 88 N.Y. 591; Phillips on Insurance § 359; Wood on Fire
Ins., 1st ed., § 352. No reason can exist for a distinction between
the construction of a provision avoiding a policy in case of marine
insurance and in case of further or additional fire insurance. In
the latter case, the provision is always construed as relating only
to additional insurance upon the same interest and effected by the
same person or in his interest.
The contention of the defendant is that its policy is avoided by
the taking out of a marine policy by the owner of the cotton
without the knowledge or participation of the plaintiff or of the
railroad companies, whether the marine insurance was effected
before or after the fire insurance in favor of the railway
companies, and although the fire insurance policy was taken to
protect the independent interests of the railroad companies. We
cannot admit the soundness of this view. The cases cited where a
policy is avoided by the carrying on of a prohibited business or
the storing of a prohibited article without the knowledge or
consent of the insured owner of a building are placed upon the
ground that the possession of the tenant or occupant of a building
is the possession of its owner, and that the contracts which he
makes as to the use of the insured premises are in the nature of
warranties, and relate to matters over which he has legitimate
control. It cannot be contended successfully that the condition in
question here was intended by the plaintiff to subject the policy
to forfeiture if any person who had a remote and independent
insurable interest should take out a policy of marine insurance to
protect that interest, the plaintiff having no privity with
such
Page 133 U. S. 421
person. As was said in
Grandin v. Rochester German Ins.
Co., 107 Penn.St. 26, 37:
"We are not to suppose that conditions involving forfeitures are
introduced into policies by insurance companies, which are purely
arbitrary and without reason, merely as a trap to the assured, or
as a means of escape for the company in case of loss. When,
therefore, a general condition has no application to a particular
policy, where the reason which alone gives it force is out of the
case, the condition itself drops out with it."
See also Hoffman v. Aetna Ins. Co., 32 N.Y. 405.
The offer of evidence by the defendant at the trial, in regard
to the marine insurance, was, by its terms, an offer to prove the
mere fact of marine insurance, in support of the defense set up in
paragraph 7 of the answer, and the claim on the part of the
defendant that the evidence was proper to support the further
defense set up in the answer as to the amount of the proportionate
liability of the defendant is not tenable. The offer was to prove
merely the fact of marine insurance, and not to prove its amount.
It was an offer in bar of liability, and not an offer applicable to
a reduction of the verdict. No suggestion of the latter object was
made in the offer, and the evidence, if admitted as offered, could
have no bearing upon the question as to how much the proportionate
liability of the defendant would be reduced by virtue of the marine
policies. The only specific offer to prove the terms of any marine
policy, and the extent of the insurance under it, was made in the
form of an offer of the deposition of one Phillips and the
testimony of one Bowen, both of which were excluded on proper
grounds, and complaint is made only of the exclusion of the
deposition of Phillips.
(6) It is assigned for error that the court erred in striking
out the testimony in the deposition of Phillips, the clerk of Ralli
Bros., who were claiming pay from the Memphis and Little Rock
Railroad Company for 158 bales of cotton, to the effect that that
cotton was covered by marine policies taken out by Ralli Bros. The
policies of insurance mentioned in the testimony in the deposition
were not attached to it. The testimony was objected to by the
plaintiff as incompetent because
Page 133 U. S. 422
it was an attempt to prove by parol the contents of written
instruments. It was stricken out by the court, and the defendant
excepted.
The ruling of the court was manifestly correct. There was no
proof that the policies referred to were in Liverpool, for all that
the witness Bowen said was that he was informed they were there,
and as to the copy which Phillips refused to attach to his
deposition, all the evidence in regard to its identity is that
Phillips said to the witness Bowen that such copy was a copy of the
marine policy which had been issued on the cotton. This was, all of
it, only hearsay evidence.
(7) The court was requested by the defendant to instruct the
jury as follows:
"As this action is brought solely on behalf of the railroad
companies on account of liability incurred through carelessness of
the agents and servants of the companies, no cause of action
accrued against the defendant until the actual payment by said
companies of damages on account of the alleged fire, and the
recovery cannot be greater than the value, on November 14, 1887, at
Little Rock, of the cotton so burned and paid for, nor greater than
the sum paid by the railroad companies -- that is, if they have
paid more than the value of the cotton, they cannot recover the
excess from the defendant; if they have paid less than the value,
they can recover only to the extent of the payment."
The court refused to give that instruction, and defendant
excepted. This is alleged as error. It is urged that the Memphis
and Little Rock Railroad Company has never paid any damages, and
that the Missouri Pacific Railway Company had not paid any when
this suit was commenced, and it is contended that no cause of
action accrues in a case of that kind until payment of the damages
by the railroad companies is made.
But as a bailee, under a policy taken out to cover property, his
own or held by him in trust or on commission, may enforce the
contract of insurance to the full value of the property destroyed,
holding the proceeds primarily for his own benefit and the balance
for that of his bailor, the right of action of the plaintiff
accrued on the occurring of the loss. The case cited by the
defendant,
Cin., Hamilton & Dayton Railroad
Page 133 U. S. 423
v. Spratt, 2 Duvall 4, does not apply to the present
case. That was a suit brought by a consignee of goods against a
carrier, where the carrier was entitled, under a bill of lading
given by it to the consignee, to insurance obtained by the
consignee, and it was held that the consignee could not be
compelled to proceed upon the policy of insurance before enforcing
its claim against the carrier, even where it appeared that the
insurer had agreed to pay its loss under the policy, and although
it was alleged that the suit was prosecuted for the benefit of the
insurer. But here, the plaintiff is the assured. The insurance
included the protection of the railroad companies. The premium was
paid. The insured property was destroyed by fire. The condition of
the liability of the insurer was complete, and its liability had
fully accrued. The only question for litigation was whether the
railroad companies were protected by the insurance. The defendant
is called upon to perform only its agreement to pay the insurance
money in case of the destruction of the cotton by fire. Its
liability is not dependent upon the question whether the liability
of the railroad companies has been discharged; nor is the
plaintiff's right of action contingent upon the payment by the
railroad companies of the value of the cotton burned, but it is
contingent only upon the destruction of the cotton by fire under
circumstances which impose a liability upon the railroad
companies.
We see no error in the record, and the judgment is
Affirmed.