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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 66 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; DeForest v. Fulton Fire Ins. Co., 1 Hall (N. Y1) 84.

Insurance in this form has invariably been held to insure; first, the bailee to the extent of his liens or advances, 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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Argument for Plaintiff in Error.

How. Fire Ins. Co., 11 Cush. 324; Phoenix Ins. Co. v. Favo rite, 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.

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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. Merchants' 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 Phonix 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

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