Statement of the Case.

way 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 2687 bales of cotton, in addition to what was known as the Hanger cotton, and that the 2687 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

Statement of the Case.

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 1463 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 & Memphis Railroad Company by the owners of 1211 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 pol

Argument for Plaintiff in Error.

icy 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 any one 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.

Mr. E. W. McGraw and Mr. E. W. Kimball for plaintiff in error.

I. The beneficiaries under the policy are the owners of the cotton; the possible interest of no common carrier is covered thereby; the policy is not ambiguous, and parol testimony is inadmissible to aid in its interpretation.

The law of marine insurance affords a very unsafe guide to the determination of rights under a policy of fire insurance.

A party suing upon a marine policy, and imbibing his ideas of the law of representation and concealment solely from adjudications in fire cases, would meet with many embarrassments. An adjuster who should attempt to adjust and settle a fire loss on the basis of the law adapted to marine insurance would commit grievous errors.

These contracts of insurance, generally designated as fire and marine, while they have some points in common, have a

Argument for Plaintiff in Error.

different ancestry; the law as to each is peculiar to itself; the points in which the contracts and the construction of them differ are nearly as numerous as those in which they agree.

The term "on account of whom it may concern" is of American origin, originated in policies of marine insurance, and is still generally confined to such policies. In Massachusetts, and perhaps one or two other States, it has been to a limited extent engrafted on policies of fire insurance.

Marine insurance comes from the civil law, the rules of which to the present day enter into the construction of its policies.

Originally in England marine policies were frequently, if not commonly, issued in blank, leaving it to the person procuring the insurance to insert the name of such beneficiary as he pleased. When not in blank they were almost equally indefinite as to the identity of the assured. The issue of policies in blank is now prohibited there. The term "for account of whom it may concern" is yet a stranger to English policies. It is the brief American substitute for the lines of the Queen Anne policy above quoted, which lines were in themselves a declaration of the existing doctrine, that the person obtaining the insurance could fill in the name of the beneficiary at his leisure, and that it was a matter which in no way concerned the insurer. When this term was first inserted in a policy of marine insurance in this country it is not easy exactly to determine, nor is it very material. See Davis v. Boardman, 12 Mass. 80; Graves v. Boston Marine Ins. Co., 2 Cranch, 419; Lawrence v. Leber, 2 Caines, 203; Hodgson v. Marine Ins. Co., 5 Cranch, 100; Seamans v. Loring, 1 Mason, 127.

The business of fire insurance had its origin under the common law, in 1667, after the great fire in London, and from its inception was strictly a contract of indemnity. During the first seventy-nine years of its existence the courts of England upheld the validity of wager policies of marine insurance. While the statute prohibiting wager policies of marine insurance was passed in 1736, no such statute applicable to fire insurance was passed until 1774. Yet before that time Lord Chancellor King and Lord Chancellor Hardwicke had recorded

Argument for Plaintiff in Error.

their opinions, that on a policy of fire insurance there could be no recovery without proof of interest. Lynch v. Dalzell, 4 Bro. P. C. 431. ed. Toml.; Sadlers Co. v. Badcock, 2 Atk. 554.

With this wide difference in the history and customs of marine and fire insurance it is not surprising to find in the adjudications concerning the latter, that the question "who was the assured" assumes a prominence that it does not attain under policies of marine insurance.

An insurance on "goods, their own or held by them in trust or on commission" is of American origin, and was an innovation on the accustomed manner of doing a fire insurance business. The form probably made its appearance in policies some years before it appears in the reports. See Parks v. General Interest Assurance Co., 5 Pick. 34; De Forest v. Fulton Fire Ins. Co., 1 Hall (N. Y.) 84.

Insurance in this form has invariably been held to insure; first, the bailee to the extent of his liens or adyances, and second, the owner of the goods. The varied interests in goods which may exist without property therein, have never been held covered by the form of insurance under consideration.

In this particular policy the words "their own" and the words "or on commission" may be eliminated as it is an established fact that the Union Compress Company neither owned any of the cotton burned or held any of it on commission. For all purposes of this case the insurance was upon cotton in bales held in trust by the Union Compress Co., at the place designated in the policy.

That the words "in trust" have not a technical meaning is admitted. The trust referred to is not of the kind usually treated of in works on Trusts and Trustees. The words, "held in trust by them" are defined as goods of which they had the care and custody, intrusted to them as representatives of others, and for which they are responsible to the owner. Stillwell v. Staples, 19 N. Y. 401; Waring v. Indemnity Ins. Co., 45 N. Y. 606. See, also, Home Ins. Co. v. Baltimore Warehouse Co., 95 U. S. 543; London & Northwestern Railway v. Glyn, 1 El. & El. 652; Robbins v. Fireman's Fund Ins. Co., 16 Blatchford, 122; Siter v. Morrs, 13 Penn. St. 218; Lee v.

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