Argument for Plaintiff in Error. How. Fire Ins. Co., 11 Cush. 324; Phoenix Ins. Co. v. Favorite, 46 Illinois, 259; Home Ins. Co. v. Favorite, 46 Illinois, 263; Beidelman v. Powell, 10 Mo. App. 280; Thomas v. Cummiskey, 108 Penn. St. 354. II. The policy is without ambiguity, and no evidence was admissible to prove that railroad companies, and not the owners of the cotton were intended as beneficiaries. The subject matter of the insurance is definitely described. It was all the cotton held by the Union Compress Company in trust, at the place designated in the policy. We have shown by an unbroken series of decisions that the term "in trust" has acquired an established definition, in view of which contracts of insurance are entered into. It is held by the courts, and is known to factors, carriers and other bailees, that the beneficiary of such insurance is the owner of the goods. There is nothing then ambiguous about the policies, which calls for any explanation whatever. True, the amount of cotton that was on the premises, its value and the names of the owners are not specified, and they can be established only by evidence. But evidence can go no farther. See Emer v. Washington Ins. Co., 16 Pick. 502; Finney v. Bedford Ins. Co., 8 Met. 348; S. C. 41 Am. Dec. 515; Lippincott v. Louisiana Ins. Co., 2 Louisiana, 399; Illinois Mut. Fire Ins. Co. v. O'Neile, 13 Illinois, 89; Holmes v. Charlestown Mut. Fire Ins. Co., 10 Met. 211; S. C. 43 Am. Dec. 428; Cheriot v. Barker, 2 Johns. 346; S. C. 3 Am. Dec. 437; Bishop v. Clay Ins. Co., 45 Connecticut, 430; Russell v. Russell, 64 Alabama, 500; Bolton v. Bolton, 73 Maine, 299; Snowden v. Guion, 101 N. Y. 459; Hough v. People's Fire Ins. Co., 36 Maryland, 398, which is an interesting and instructive case; Home Ins. Co. v. Baltimore Warehouse Co., 93 U. S. 527, 542; Lucas v. Insurance Co., 23 West Va. 258. III. Under the evidence the railroad companies were not and could not be the beneficiaries of the insurance. 1. This cotton policy which was put in evidence contains an unusual and prominent feature, which is irreconcilable with any intent to insure a carrier against a loss caused by its own negligence. Ordinarily a fire insurance policy runs "against Argument for Plaintiff in Error. all loss or damage by fire." But the policy in question is against "all direct loss or damage by fire." The evidence discloses the fact that all of the bills of lading issued by the railroad companies provided that the carriers should be exempt from loss or damage by fire. The only interest, then, which the common carrier had in this cotton, was a contingent interest, arising from its liability for damages for loss by a fire, occurring through its own negligence. Now, in the case at bar, the possible loss to the carrier by the destruction of the goods was by no means "direct" in any sense of the term. It was remote, contingent and conditional. The fire alone could not inflict any loss. 2. Another very serious objection to the claim that this insurance was for the benefit of carriers as to the goods destroyed arises on the record. The evidence is not only strong, but irresistible that the insurance was for the owners, and that the court below, if it assumed to decide the facts for the jury, should have come to a conclusion exactly contrary to that which it announced. 3. By the complaint and evidence it appears that all this cotton originally came into the hands of the Union Compress Company. Afterwards the railroads issued bills of lading on the cotton, some of which were issued before the policy, but more after it. If it be material to decide whether or not the possession was changed by those bills of lading, we submit that it was changed, and that at the time of the fire the cotton was in the possession of the railroad companies, and so not covered by our policy. The delivery of the bills of lading was conclusive on the question of the delivery of the cotton. Kentucky Marine & Fire Ins. Co. v. West. & Atl. Railroad, 8 Baxter, 268. This precise point under very similar circumstances was decided by the Supreme Court of Maryland. That court held that the issuing of a bill of lading by a transportation company of goods in warehouse of another company places the goods in the care and custody of the transportation company for purposes of insurance. Fire Ins. Asso. v. Mer chants' and Miners' Trans. Co., 66 Maryland, 339. 4. Upon one other point in this connection, we ask leave of Argument for Plaintiff in Error. the court, to call in question an expression of opinion of this honorable court, and to respectfully request that that opinion may be reviewed by this court. In Phoenix Ins. Co. v. Erie Transportation Company, 117 U. S. 312, Mr. Justice Gray, speaking for the court, said: "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." p. 324. We have already shown in this case that the insurance, if for the benefit of the railroads, was purely and wholly an insurance against negligence. We wish, if we may, to argue to the court that insurance of that nature is contrary to public policy and void. We do so more hopefully because while, in the case cited, the question of public policy may have been involved, it did not, if we may judge by the reported briefs of counsel, assume as much prominence as other considerations of more immediate interest to their clients. We most respectfully submit that the tendency of this class of insurance would be to foster a gross and often criminal negligence with respect to property and property rights of others, and to jeopardize the safety not only of the goods insured, but of the property of others in proximity thereto. IV. In regard to the instruction of the court as to the liability for negligence of the Memphis and Little Rock Railroad Company we have to say that when a court instructs the jury as to facts, its narration or allusion to facts should be fair. It should not select and dwell on isolated facts which might be construed favorably to one side and make no allusion to other facts which might militate against that side. Evans v. George, 80 Illinois, 51; Newman v. McComas, 43 Maryland, 70; West Chester Fire Ins. Co. v. Earle, 33 Michigan, 143; Jones v. Jones, 57 Missouri, 138; Chase v. Buhl Iron Works, 55 Michigan, 139. The instruction of the court below was not a fair one as to the facts. Whether or not the place named in the policy was Argument for Plaintiff in Error. a proper place to store cotton under the circumstances was an immaterial question so far as the liability of the railroad company was concerned. It was the place selected by the owners of the cotton, and not by the railroad company. The cotton was stored there by the owners and not by the company. The accumulation of cotton at this improper place, if it was improper, existed in the month of October, before our policy was issued, and in November. Less than 300 bales of the burned cotton were covered by bills of lading of that company, issued in October. Seventy-two bales of it were covered by a bill of lading issued November 10, only four days before the fire. No negligence can therefore be imputed to the railroad company on account of the unfitness of the place where the cotton was stored. V. Assignment 3d is that the court erred in sustaining the demurrer of plaintiff to 7th paragraph of defendant's answer. That paragraph is as follows: "The defendant says that it is a provision of said policy, that it shall not apply to or cover cotton, which, at the time of the loss, was covered in whole, or in part, by marine policies, and it says that at the time of said loss, 2172 bales of said cotton, alleged by plaintiff to have been burned at said fire, and of the value of $101,973.73, were covered by marine policies theretofore issued to the respective owners of said cotton." The policy, which is part of the complaint, contains the following provision. "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 in part by a marine policy." By its policy, the plaintiff in error absolutely declined to insure any cotton which, at time of loss, was covered by marine policies. As to the validity of this condition, there can be no question. The right of the insurer to decline insurance absolutely upon certain classes of goods, or under circumstances distasteful to the insurer, cannot be denied. He can provide that goods held in trust are not insured, unless so declared in the policy, and the provision is valid. Baltimore Fire Ins. Co. v. Loney, 20 Maryland, 20. Argument for Plaintiff in Error. In this case, the plaintiff in error in positive terms declined to insure cotton covered by marine policies. A reason for this provision may easily be found, but it is not necessary to search for one. It is sufficient to say, thus is the contract written. We allege that at the time of loss, nearly all this cotton was covered by marine policies. If that be so no liability attached to this company for loss of cotton so covered. VI. Assignment 10th is the rejection of competent evidence proffered by us that at the time of the fire 2172 bales of cotton covered by bills of lading of the railroad companies and alleged to have been burned, and of the value of $101,973, were covered by marine policies of insurance, theretofore issued to the respective owners of said cotton, etc. By our answer we alleged that at the time of the fire there was a total insurance on the cotton burned to the amount of about $250,000 and claimed the benefit of the contribution clause in our policy. The complaint alleged total insurance to amount of $142,500. Our policy contained the following contribution clause: "In case of any other insurance upon the property hereby insured, whether to the same party or upon the same interest 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 an excess of specified loss. And it is 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." It will be seen by the very terms of the policy that it is immaterial on the question of contribution, whether the fire policies were taken out for the benefit of the owners or of the railroad companies. In either case the marine policies are contributory. The clause is very like, but a little stronger, than that sus |