Comber v. unfavourable conditions is not a policy on the best terms, at all events in the hands of an agent, who is not justified in accepting what is doubtful, or expected to undertake a risk by doing something which may be perilous. Judge Duer commenting on the case says:-"A general order to insure implies a direction to make the insurance on the best terms that the agent, in the exercise of reasonable diligence, will be able to obtain, and binds the agent at least to that degree of diligence that a person of ordinary prudence is accustomed to employ in his own affairs. Certainly no person of ordinary prudence, about to determine on an insurance, would fail to ascertain the usual terms of the respective companies or sets of underwriters to whom he might apply, nor would fail, if the credit of the underwriters was equally solid, to effect his insurance at that office whose terms, at an equal premium, secured to him the largest indemnity. Hence, an agent, who in acting for another should omit to make the same inquiries and pursue the same course, would be chargeable with such a want of reasonable and ordinary diligence as would render him justly liable for a resulting loss."1 The defendants, London insurance brokers, having received from the plaintiff, a merchant in Liverpool, general orders to insure a cargo of wheat on his account, but no specific instructions as to how or with whom to insure, effected a policy with the Royal Exchange Assurance Company, who at that time left out of their memorandum the exception which makes them liable for an average loss on wheat in case of stranding. In this case there was a stranding and an average loss on the wheat; but the plaintiff, by reason of the form of the policy, could not recover under it. He lay by till some time after the loss had happened, without complaining of the form of the policy effected, and then brought his action against the plaintiff for not having effected such a policy as would 1 Duer on Ins., vol. ii. p. 231, and see also pp. 229-232. have secured him an indemnity for average loss in case of stranding. Lord Ellenborough, as to this part of the case, said: "The plaintiff must be taken to have been cognizant of the existence of the chartered companies and the tenor of their policies. If he wished that the policy on this cargo should not be effected on the terms of the Royal Assurance Company, he ought to have given special directions to the defendants for this purpose; and, at any rate, having been so late in reproaching them with what they had done, he had acquiesced in and adopted the policy which they had actually effected."1 experts be A question of some importance in relation to the subject Whether of a broker's duty in a particular case has been agitated admissible but not yet authoritatively determined as to the evidence of witnesses on the question other persons engaged in the same business as the defendant, of skill and whether they may be examined as experts and asked what an insurance broker of reasonable skill would, in their judgment, have done under the circumstances. In the only two cases which have been decided on the express point, the Court of King's Bench and Common Pleas were at variance.2 care. Accordingly where a merchant in Sydney had shipped a Campbell v. consignment to England, and wrote to the defendants, his Rickards. correspondents in London, desiring them, if the ship had not arrived in England when they received the letter, to wait thirty days and then effect an insurance on the 1 Comber v. Anderson, 1 Camp. 523. To justify the opinion of the learned Judge as to the effect of delay in complaining, one must assume that the policy was in the hands of the plaintiff some time before the loss happened. 2 Mr. Phillips says, and I think in accordance with the spirit of English law and practice, in discussing this question-"A witness is not admis sible to testify, and cannot be in- Chapman v. consignment; and the defendants, after waiting thirty-six days, effected an insurance, telling the underwriters nothing of the thirty days' delay after receipt of the letter; the question put to several brokers and underwriters as witnesses for the plaintiff was: "Whether it was material to have communicated the fact that that letter had arrived in this country thirty days before effecting the insurance?" Lord Denman pronounced the evidence inadmissible, on the ground that the opinion of the underwriters and brokers had been asked, not as to a matter of prevalent practice in their trade, but on a matter of legal obligation, which was itself the very point on which the jury were called upon to pronounce a verdict; viz., whether the fact concealed was or was not material, and ought to have been communicated.1 In the other case, the plaintiff, a London merchant, employed the defendant to effect a policy on his goods for a voyage "at and from London to St. Thomas's, with leave to call at Madeira or Teneriffe:" which was done. Shortly afterwards the plaintiff received the following letter from his supercargo, who was then at Funchal, in Madeira :-"I have now nearly completed, and expect to sail to-morrow or next day at farthest for the Canaries, from whence, as I have taken more wines here than I at first contemplated, it is my intention, for your government, to visit one or more of the West India Islands, say Barbadoes, St. Kitt's, and St. Thomas; in one or other of which, I am told, I cannot fail of getting a market for the wines, and such part of the cargo as I do not dispose of in the Canaries. I have not sold a single package of linens, but could have disposed of a much larger quantity of cottons. With respect to the linens I have no fear, as in Canary any reasonable quantity is desirable." 1 Campbell v. Rickards, 5 B. & Ad. 840, 846. Similar evidence appears to have been admitted by Lord Tenterden at Nisi Prius, in the action brought by these same agents for the plaintiff against the underwriters; and in Banco he seemed strongly of opinion that it had been admitted rightly, saying, "I know not how the materiality of any matter is to be ascertained but by the evidence of persons conversant with the subject matter of the inquiry." See Rickards v. Murdock, 10 B. & C. 540. The plaintiff took this letter to the defendant, telling him, "that the voyage was altered, and that he left him the letter to do the needful with." The defendant, upon this, altered the policy, by adding to it a liberty for the ship "to proceed to St. Kitt's and Barbadoes for all purposes," but did not also add any liberty to proceed to or touch at the Canary Islands. The ship was lost at the Grand Canary Island. At the trial of an action against the defendant several policy brokers were called for the defendant; and the altered policy, together with the bills of lading and invoices, and the supercargo's letter being placed in their hands, they were asked what alterations of the policy a skilful insurance broker ought in their judgment to have procured, having these documents in his possession, and being instructed to do the needful. The witnesses having replied, that they thought a policy broker could have done ample justice to such instructions by effecting the alterations as made, the jury found for the defendant; and on motion to set aside their verdict, on the ground of the improper reception of this evidence, the Court refused to do so, and held the evidence admissible.1 Tindal, C. J., said, "This action is brought for the want of reasonable and proper care, skill, and judgment shown by the defendant under certain circumstances, in the exercise of his employment as a policy broker. The point, therefore, to be determined is, not whether the defendant arrived at a correct conclusion upon reading the letter, but whether upon the occasion in question he did or did not exercise a reasonable and proper care, skill, and judgment. This is a question of fact, the decision of which appears to rest on this further inquiry, viz., whether persons exercising the same profession or calling, and being men of experience and skill therein, would or would not have come to the same conclusion as the defendant. For the defendant did not contract that he would bring to the performance of his duty, on this occasion, 1 Chapman v. Walton, 10 Bing. 57. Agent not cipal not damnified. an extraordinary degree of skill, but only a reasonable and ordinary proportion of it; and it appears to us that it is not only an unobjectionable mode, but the most satisfactory mode of determining this question, to show by evidence whether a majority of skilful and experienced brokers would have come to the same conclusion with the defendant."1 Two things are requisite to enable the plaintiff to mainliable if prin- tain his action against his agent in case of failure of the insurance,—default, namely, of the agent as the cause, and damnification of the principal as the consequence; in other words, there must be a damnum to the principal as well as an injuria in order to make the agent personally liable. Hence, if an agent fails to procure an insurance, which, if made as required, would be wholly void, the agent is not liable in damages, and this for the plain reason that his principal has not been damnified. If the neglect complained of be the non-communication of a material fact, the insurance agent may defend himself on the ground that had the fact been communicated it would have been impossible to procure an insurance at the premium limited in the instructions;3 but unless the policy, when made as required, would have been wholly void, such a defence as this which we are discussing cannot be set up; as e. g. in the case of an agent directed to insure against British capture, for this, if embodied in the policy, would have avoided it only pro tanto.4 1 Chapman v. Walton, 10 Bing. 63. See 1 Smith's L. C. 555, 572-578, notes to Carter v. Boehm. As to the American decisions, see M'Lanahan v. Univ. Ins. Co., 1 Peter's Supreme Court Rep. 188; Jefferson Ins. Co. v. Cotheal, 7 Wend. 79; 3 Kent, Com. 285; Duer, vol. ii. pp. 780-788; 2 Phillips, no. 2112, &c. 2 Webster . De Tastet, 7 T. R. 157. The assurance directed to be made in this case was on slaves, the privilege of transporting which was given to the mate of a slave-ship in lieu of wages: wages being an illegal subject of insurance, the policy, if made as directed, would have been void. 3 Anonymous case before Chambre, J., 1808, cited in Paley's Principal and Agent, 20. 4 Glaser v. Cowie, 1 M. & Sel. 52. |