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1872

Anderson v. Pacific Fire and Marine Insurance Co.

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place, and consider it quite safe.” It is said that that was a
misrepresentation; and I think it must be assumed for the
present purpose, that, if that is to be taken to be a statement by
the master that Rendez-vous Point was a safe anchorage and
well sheltered, that was a misstatement, because there was
abundant evidence that it was not a good and safe anchorage;
and on that the learned judge did not ask the jury to pronounce
any opinion. The question, therefore, becomes this, whether
the statement of the master in that letter amounts to an absolute
statement of a fact or only to a statement of opinion. If the
latter, it may be that, if it was an opinion which the writer of
the letter really did not entertain,- a conclusion which the jury
would easily have arrived at if they thought no person could
honestly have entertained such a belief,— I think the assured
would be bound. But any consideration of that kind is excluded
by the finding of the jury, because, in answer to the second ques-
tion which was put to them, they find that it was an opinion
honestly formed. Then, do the words amount to an absolute
statement of a fact? I am of opinion that they do not, and that
they could not have been so understood by Drummond when he
took the risk. Rendez-vous Point does not appear to have been a
place very well known to either party. It was, so to speak, a
questionable place. All the information the defendants' manager
has he obtains from a person who professes not to know any.
thing about it. It was considered by the pilot as a good and
safe anchorage; and it was considered by the jury that the pilot
so thought it. The rest of the statement means this: “From
the information I have received from the pilot, and my own in-
spection, I consider it quite safe.” Fraud being out of the
question, I think that is no misrepresentation. Unless the
honesty of the captain was to be assailed, I do not see any
ground for saying that the jury ought to have come to any other
conclusion than they did; and I do not understand from the
learned judge that he is dissatisfied with the verdict. I there-
fore think there ought to be no rule.
70] *BYLES, J. I am of the same opinion. The statement
in the captain's letter, which the jury find was read to the de-
fendants' agent at the time of effecting the policy, and which
they also find to be true, is a representation, not that Rendez-
vous Point was a safe anchorage, but that two persons con-

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Anderson v. Pacific Fire and Marine Insurance Co.

1872

sidered it so.

There being no fraud, I think there should be

no rule.

GROVE, J. I am of the same opinion. Mr. Prentice says that the words are to be read as if they were an assertion by the plaintiffs' agent that the spot in question was a safe anchorage, and that the insurance was effected upon the faith of that representation. I do not think that is the true effect of the production of the letter; and I think the words exclude Mr. Prentice's conclusion. The real question in the case referred to of Ionides v. Pacific Insurance Co. ('), was the identity of the vessel on which the goods were shipped,- whether it was the Socrates, a new Norwegian vessel, or the Socrate, an old French vessel. Just before the passage in the judgment cited by Mr. Prentice, Blackburn, J., says: “Though we see no reason to doubt that the jury were quite right in finding that both parties were intending to insure the goods by the ship on which they were actually shipped, yet, when we find it not disputed that the one party expressly asked the question whether the ship was the Norwegian ship Socrates, and was told by the other party that he thought it was, we cannot think that there was any evidence on which the jury could properly find that the defendants entered into a contract to insure any other ship than the Socrates. The most that could be legitimately found was that there was no contract, the parties not being ad idem. And we think also that, if the representation was made, however honestly and innocently, that the ship was a new ship, when, in fact, she was an old one, the policy was vitiated thereby, for the age of the vessel must be material in considering the premium.” I do not think that case has any bearing upon the present. All that the representation here amounts to is the opinion of the captain, not recklessly formed, but founded upon what he fairly deemed to be competent knowledge of the pilot and his own personal observation.

*BRETT, J. Upon the whole, I think I left the right [71 questions to the jury. They were these :-“1. Did Bruce read to Drummond the extract from the captain's letter? 2. Is the representation in that extract true? 3. Did Bruce, without

(") Law Rep., 6 Q. B., 674.

1872

Anderson v. Pacific Fire and Marine Insurance Co.

reading the extract to Drummond, state to him that the place to which the ship was going was a good, well-sheltered, and safe anchorage? 4. If yes, was the place a good, well-sheltered, and safe anchorage, in the sense in which the statement was understood by Drummond ?” The jury answered only the first two questions. I thought that concluded the case, and therefore did not press them to answer the others. The contest at the trial was whether the letter was read or not. Although neither Bruce nor Drummond seemed to know anything about Rendez-vous Point, the island itself is well known; and Rendezvous Point is the point of departure from Belize. The Insurance was from Belize to Turneffe to take the cargo of a wrecked vessel. The agent of the assurers therefore knew it was an unusual risk that he was asked to take; and an unusual premium was paid. The substance of what I left to the jury was, what was the meaning of the extract, and was the statement true. I thought the interpretation of the letter was for the Court; and I stated my view of it, viz. that the pilot and the captain, after examining it, thought the anchorage a safe one. The jury agreed with me. I cannot doubt that that was the true meaning of the letter, and that it was so understood by Drummond. Although the reef did not protect the vessel from the wind, there was evidence that it afforded a protection against the waves. I see no reason to be dissatisfied with the verdict.

Rule refused.

Attorneys for defendants : Holmer, Robinson, f Stoneham.

Jan. 31, 1872. 75] *RICHARDSON AND SISSON v. THE NORTH EASTERN

RAILWAY COMPANY.

Law Reports, 7 Common Pleas, 75.

Railway Company - Carriers Bailee - Negligence. A valuable greyhound was delivered by its owner to the servants of a railway company, who were not common carriers of dogs, to be carried, and the fare demanded was paid. At the time of delivery the greyhound had on a leathern collar

Richardson v. North Eastern Railway Co.

1872

with a strap attached to it. In the course of the journey, it being necessary to remove the greyhound from one train to another which had not then come up, it was fastened by means of the strap and collar to an iron spout on the open platform of one of the company's stations, and, while so fastened, it slipped its head from the collar and ran upon the line and was killed :

Held, that the fastening the greyhound by the means furnished by the owner himself, which at the time appeared to be sufficient, was no evidence of negligence on the part of the company.

Stuart v. Crawley (2 Stark., 323) distinguished.

APPEAL against a decision of the County Court of Westmoreland, holden at Appleby, in an action brought by the plaintiffs, joint owners of a greyhound bitch, to recover 501. damages against the North Eastern Railway Company, for the loss of the animal through the alleged negligence of the company's servants.

1. On the 19th of February, 1870, the greyhound was taken by Sisson to the defendants' station at Temple Sowerby, for the purpose of being conveyed thence to Morpeth, another station on the defendants' line of railway. Sisson applied to the collector at Temple Sowerby station, and stated that he required the greyhound to be conveyed to Morpeth. He paid the fare which the collector demanded, and gave the greyhound into the charge of the guard of the train by which she was to be conveyed on her journey.

*2. The plaintiffs did not declare the value of the dog, [76 and paid no extra charge for its conveyance. No ticket was issued. The greyhound, when delivered to the guard, had round her neck a collar of leather, and was clothed with a sheet, which, however, did not so cover the collar as to prevent its being examined. The bitch was proved to be of the value of seventy guineas. She was safely carried to Kirkby Stephen station, where the train from Temple Sowerby stopped. The remainder of the journey to Morpeth was intended by the defendants, for their own convenience, to be performed in another train, which, on its arrival from Tebay, was to proceed from the Tebay side of Kirkby Stephen station; the train from Temple Sowerby arriving at the other side (known as the Eden Valley side) of the Kirkby Stephen station. The greyhound was taken from the van in which up to that point she had been carried, and was taken from the Eden Valley side of the platform to the Tebay side, to await the arrival of the train from Tebay, then due.

1872

Richardson v. North Eastern Railway Co. The train from Tebay being a few minutes late, the greyhound was fastened by the company's servant to an iron spout by a strap which one of the plaintiffs before delivery to the defendants had attached to her collar; and, having been so fastened, she was left alone to await the arrival of the train. Within three minutes afterwards she slipped her head through the collar, and escaped, and ran away down the line. The next day she was found dead, having been run over by a train.

3. At the time Sisson brought the greyhound to Temple Sowerby station, a bill, a copy of which marked B. was annexed to the case, was exposed on a board in the open platform shed of the station, and another bill, a copy of which marked A. was also annexed to the case, was tacked to the wall inside the passengers' waiting-room. The notice marked B. but which had no reference to dogs ("), could be easily seen by any person en77] tering the open *platform shed where tickets are given; but the printed paper marked A., which was a time-table, and contained a marginal note about dogs (), could only be seen by persons who had entered the waiting-room; but there was no evidence to show that Sisson had, and Sisson swore that he never had, seen or heard of either of these notices, or of the terms contained therein.

(1) The material part of this notice “HORSES, CARRIAGES, Dogs. The was paragraph 9, which was as fol. company are not carriers of horses, lows:

cattle, dogs, and other animals, which “The said company hereby give are received, forwarded, and delivered notice and declare that they never have solely on and subject to the following been, and are not, and decline to be- conditions, &c., &c. come, common carriers of horses, cattle, “The company will not accept dogs sheep, pigs, and other animals, and will for conveyance unless they have proper only undertake the carriage thereof chains and collars attached, and then upon a special contract in each case first only upon condition that they are not entered into by them with the owner responsible for loss of or injury to the or person sending or delivering the animals in the event of these fastenings same, the special terms whereof may proving insufficient; and they will not be learnt on application to the com- receive dogs for conveyance except on pany's collector at the station, and will the terms that they shall not be reappear in the note at the foot of or in- sponsible for any greater amount dorsed upon the ticket or memorandum damages for the loss thereof or injury of each such contract issued or made by thereto beyond the sum of 21., unless a him, and according to which alone the higher value be declared at the time of company authorize him to contract on delivery to the company, and a per their behalf.

centage of 5 per cent, paid upon the ( The note in question was as fol. excess of value so declared.” low:

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