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Decisions of the Nineteenth Century Tasmanian Superior Courts

Tetley v. Sherwin [1841]

trover, detention of a policy of insurance - agency - Privy Council

Supreme Court of Van Diemen's Land

Montagu J., 16 December 1841

Source: The Cornwall Chronicle and Commercial, Agricultural and Naval Register, 25 December 1841[1]

            This was an action of trover, for the recovery of damages sustained by the detention of a policy of insurance for the amount of £1000, upon the schooner Paul Pry. For the plaintiff the Solicitor-General, with Messrs. Allport and Roberts; for the defendant the Attorney-General and Messrs. Macdowell and Stephen, with Messrs. Butler.

            The Solicitor-General having addressed the jury, and certain admissions having been conceded, the learned counsel proceeded to call his witnesses.

            Mr. Duncan McPherson. - Was the Actuary of the Van Diemen's Land Fire, Marine, and Life Insurance Company; there was no Board of Directors at Launceston, the insurances there being effected by an agent; Mr. Isaac Sherwin, the defendant, was the agent; he receives the proposal from the insured and transmits it to Hobart Town; the Directors say whether the insurance is effected or not; it is witness's duty to inform the agent of that fact; sometimes the Directors transmit the policy to the agent; sometimes they inform him of the risk; if the loss occurs after the notice is given the Company pay the insurance if the premium is paid before the loss; the premium is not sent over from Launceston to Hobart Town before the Directors say they take the risk or not; the Directors get the premiums from Launceston at the end of every month; in some instances it may be longer, but very rarely; the agent at Launceston accounts with their office for the premiums; he sends money over every month; until he sends the money over we keep an account with him for the premiums, the Launceston agent being debited with them; when he is told the risk is taken, he is so debited. [A policy was here put in; it was on the Paul Pry, and in the hand-writing of witness.] The risk of that policy commenced on the 21st May, and ended the 20th August; the date of the policy was the 25th May; [receipt produced;] "Received from Mr. James Tetley, £30, for policy on Paul Pry, 30th May, 1841."

            By His Honor. - The office would not have paid the loss if it had occurred four days before the date of the receipt.

            Examination continued. - That policy covered the risk from the 21st May; if the premium was paid, although the insured had not got his policy, the insurance would be paid; Mr. Sherwin received a remuneration for policies by a commission of 10 per cent, upon the premium; have received premiums after the risk was out; Mr. Sherwin was allowed to take risks on the other side; it was left to his discretion to take ordinary risks, similar to that of the Paul Pry, as agent for the Company only, he receiving remuneration from the other party; the more insurances he takes, the better for himself; the agent sometimes treats with the parties themselves, as their agent.

            Cross-examined by the Attorney-General. - In case Mr. Sherwin sends notice, and the risk is accepted, he is held responsible for the premium; in this case Mr. Sherwin accepted the risk himself, and gave us orders to insure; as in case of ordinary risk, the policy was in consequence prepared, and kept in the hands of the Company, but not delivered for several days; if Mr. S. had delivered the policy before the premium was paid; it would have been contrary to the rules of the Company; in point of fact, he did not receive the premium prior to the 13th of September; Mr. S. wrote to that effect; if Mr. Sherwin had given up the policy, the Company would have held him liable; his only protection was holding the policy till the premium was paid.

            Re-examined by the Solicitor-General. - Mr. Sherwin did not inform witness that a tender of the premium had been made; Mr. S. wrote on the 13th of September, (received on the 14th); witness had brought no books with him; he could not do so of his own authority; he had received notice to bring the books; was not ordered not to bring them; they were in witness's custody; he had communicated to one or two of the Directors that he was directed to bring them; he was not positive as to the names of the Directors whom he told; told one in the street, the other in the office.

            Mr. Macpherson was here closely question by His Honor, as to the time, place, &c. when and where he had told the Directors, with a view of calling to his recollection the names of those gentlemen; but he could not recollect; His Honor to facilitate his memory, took down the names of all the Directors as follow: Messrs. Dunn, Swan, John Sherwin, R. Lewis, Watchorn, Davis, and Tonkin. His Honor again asked the witness if he could recollect? He replied, that he could not; but one was standing at the north-west corner of the Court-house in the street; and the other in the office; he could not even guess their names. His Honor observed, it was very strange.

            Examination continued. - Mr. Sherwin was credited with the premium after the policy was returned; witness thought about three or four weeks ago; was not sure whether it was after the present action was brought or not; it was in the month of September; we have issued policies from the office, before the premium has been paid.

            Mr. Vincent Giblin. - Was a clerk in a banking-house at Launceston, where Mr. Sherwin transacted his business; remembered being present when Mr. Tetley said he came to tender some money to Mr. Sherwin; to the best of his recollection he said he came to pay the premium upon the Paul Prey; this was about the middle of September; witness did not see any money produced; has not known policies given by Mr. Sherwin before the premium has been paid; did not recollect whether the policy was in the office when Tetley came; witness had said that Tetley could not get at the policy, because it was on the mantel-piece, and the counter was between; did not know that the policy was in the office; he did not say the policy was on the mantel-piece; the policy was on the mantel-piece on the 10th of September; witness has no recollection of seeing it after that day; he recollected a former policy, but not how the money was paid; recollected Tetley calling upon Mr. Sherwin for a renewal of a policy about the end of August; Sherwin asked Tetley if he wished to have the policy of the Paul Pry renewed? Tetley replied, he wished to have it done. Sherwin said, he would write to Hobart Town about it, to the Company. Tetley said the vessel was going out of the river at the time; did not recollect whether any other person was present at the time; did not recollect when the second policy came over; Tetley came into the bank with a handkerchief in his hand, which appeared to contain some money; Sherwin said he would not receive it; did not recollect Tetley asking for his policy, nor Sherwin saying anything to him about it; Mr. Fisher came with Mr. Tetley.

            Cross-examined by Mr. Stephen. - Witness could not positively say whether it was after the 13th September when Mr. Tetley came, but thought it was.

            Mr. H. Marsh, clerk to the V. D. Land Fire, Marine, and Life Insurance Company, produced the books, and proved the entry of an account with Mr. Sherwin, as also its settlement, including that of Tetley, in October last. The letters (Mr. Sherwin's) are in the possession of the Directors or the Attorney; there was no entry of those letters in the letter-book; witness had notice to produce those letters; he had received no directions from the Directors to copy them; he did not recollect their contents; saw the policy on the 14th of September in the hands of the Actuary; was quite sure it was on the 14th Sept.

            Mr. George Fisher. - Knew Mr. Tetley; he was a merchant and ship-owner; witness was a ship-agent; knew Mr. Sherwin, who resided near Mr. Tetley; the value of the Paul Pry was £1200; witness went with Mr. Tetley on the 10th September to Mr. Sherwin; Mr. Tetley asked Mr. Sherwin if he had attended to his instructions relative to the renewal of the insurance of the Paul Pry? Mr Sherwin said he had, and that the policy was then lying in his office for him; Mr. Tetley said he would call in the course of the day, and pay the premium. Mr. Sherwin asked witness if anything was the matter with the Paul Pry? Witness said that intelligence had arrived that morning in town that she was lost. Mr. Sherwin said, "Oh, if that is the case, I do not think the Company will pay the risk." On the following day witness went with Mr. Tetley, and saw him tender the amount of the premium. [The demand and refusal of the policy were here admitted, but the tender denied.] On the 16th went again, and tendered the premium; saw something in Mr. Sherwin's hand, which he had taken from the mantel-piece; Mr. Sherwin could not give it up, as the Company considered the vessel uninsured.

              Cross-examined by Mr McDowell - Witness knew about an hour before he saw Mr. Tetley that the Paul Pry was lost; he called upon Mr. T. to apprise him of the circumstance; when Mr. Sherwin said he did not think the Company would pay the risk, witness said to Mr. Tetley, "did I not tell you that before?" This was, however, only witness's own opinion.

              Mr. F. A. Duncrow. - Had some conversation with Mr. Sherwin about the policy of the Paul Pry; considered that Mr. Tetley was insured till the policy arrived in Launceston, but not after, unless the policy was taken up; Mr. Sherwin generally sent round to the residences when the policy had arrived, when they were expected to take it up; Mr. Sherwin said he had not done so in this instance, as he did not know exactly where to find Mr. Tetley, who lived nearly a mile from Mr. Sherwin.

              Mr. McDowell observed that the simple question at issue was, whether Mr. Sherwin was agent to both parties - did he stand in the situation of a broker at home, and act for both parties.

              Mr. Hewitt was then examined, to shew the custom in use in England. He stated that the insurance is there effected through a broker, paid by the underwriter; it was not customary to pay the premium immediately to the broker, nor was he aware that the broker paid the premium immediately; he had generally nine months' credit allowed.

              The Attorney-General, for the defendant, submitted that he could not be liable, as there was no proof that he was acting as the agent for Tetley, as well as the defendant. It was never the intention of the company to evade any risk, which had been fairly and justly incurred, and this was the first time any dispute to the prompt payment of a risk had been entertained. The learned counsel having adverted to the evidence, left the case in the hands of the jury.

              His Honor remarked, that the case was one of some difficulty in point of law - a point upon which there was but small practice here; it was for the jury to take all the facts into their consideration, and decide.

              The jury then retired, and after an absence of nearly six hours returned into court, when the foreman stated that ten out of twelve had agreed upon their verdict, although forty minutes of the time allowed by law remained unexpired, the counsel on both sides agreed to take the verdict, which was delivered seriatim as follows: - For the plaintiff, (damages £970) Messrs. Barnard, Sloane, Salmon, Dixon, Watson, Downing, Lackey, Murdoch, Stewart, and Morgan; for the defendant, Messrs. Furtado and Warham. In answer to a question from His Honor, the jury stated that they considered Sherwin in the light of agent for both parties - Colonial Times, Dec 21.

Notes

[1]              See also Hobart Town Advertiser, 21 December 1841; The Hobart Town Courier and Van Diemen's Land Gazette, 17 December 1841; The Launceston Courier, 27 December 1841.  For Sherwin see A. Tetley, 'Isaac Sherwin (1804-1869)', ADB,  vol. 2, pp. 441-2.

                      See also Tetley v. Sherwin, 1842; Tetley v. Sherwin, 1843 . This case was ultimately decided by the Privy Council, being the first reported Privy Council decision from the Australian colonies: In re Sherwin (1844) 4 Moo. P.C. 311; 13 E.R. 323.  See B. Kercher, "Unreported Privy Council Appeals from the Australian Colonies before 1850" (2003) 77 Australian Law Journal 309.

 

Published by the Division of Law, Macquarie University and the School of History and Classics, University of Tasmania