124 U.S. 405 (1888), Union Ins. Co. v. Smith

Citation:124 U.S. 405, 8 S.Ct. 534, 31 L.Ed. 497
Case Date:January 30, 1888
Court:United States Supreme Court

Page 405

124 U.S. 405 (1888)

8 S.Ct. 534, 31 L.Ed. 497




United States Supreme Court.

January 30, 1888


Page 406

[8 S.Ct. 535] Harvey D. Goulder, for plaintiff in error.

J. E. Ingersoll, for defendant in error.



This is an action at law brought by Patrick Smith against the Union Insurance Company of the City of Philadelphia, a Pennsylvania corporation, in the court of common pleas of Cuyahoga county, Ohio, and removed by the defendant into the circuit court of the United States for the Northern district

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of Ohio, to recover the sum of $7,000, with interest, for the loss of a vessel insured by a polich of marine insurance issued by the defendant. The policy was dated May 6, 1884, and insured the steam-tug N. P. Sprague, from May 6, 1884, to December 10, 1884, in the sum of $7,000, the vessel 'to be employed exclusively in the freighting and passenger business, and to navigate only the waters, bays, harbors, rivers, canals, and other tributaries of Lakes Superior, Michigan, Huron, St. Clair, Erie, and Ontario, and river St. Lawrence to Quebec, usually navigated by vessels of her class,' the vessel being valued in the policy at $9,334. The policy contained these provisions: 'Touching the adventures and perils which the said insurance company is content to bear and take upon itself by this policy, they are of the lakes, rivers, canals, fires, jettisons, that shall come to the damage of the said vessel or any part thereof, excepting all perils, losses, misfortunes, or expenses consequent upon and arising from or caused by the following or other legally excluded causes, viz.: Damage that may be done by the vessel hereby insured to any other vessel or property; incompetency of the master or insufficiency of the crew or want of ordinary care and skill in navigating said vessel, and in loading, stowing, and securing the cargo of said vessel; rottenness, inherent defects, overloading, and all other unseaworthiness.' 'Boiler [8 S.Ct. 536] Clause. Unless caused by stranding, collision, or the vessel being on fire, the insured warrants this policy to be free from any claim for loss or damage to boilers, steam-pipes, or machinery caused by the bursting, explosion, collapsing, or breaking of the same, and to be free from any and every general average and salvage expense in consequence thereof, excepting always the expenses of getting the vessel from an exposed position to the nearest place of safety, when further expenses of above nature are not to be a claim on the ininsurer.'

The petition by which the suit was commenced in the state court set forth that the plaintiff was the owner of the tug; that on the eighteenth of July, 1884, the vessel, in her regular course of business, left Port L'Anse, bound to Cleveland; that she was then stout, staunch, and strong, and in all respects

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seaworthy for the voyage she was about to undertake; that, while on that voyage, and on the twenty-third of July, 1884, and without fault or negligence on the part of the plaintiff or those in charge and management of her, but solely by reason of the perils of navigation so insured against by the defendant, she sprung a-leak; that although the plaintiff and his agents, and the officers in charge of the vessel, used all reasonable endeavors to prevent said vessel filling with water, they were unable so to do; that, within a short time after the discovery of the leak, the vessel filled with water and sank, and became a total loss; that the plaintiff promptly caused proof of loss to be made to the defendant, as required by the policy, and also, in compliance with its terms, caused to be made to the defendant an assignment and transfer of all interest which he had in the vessel, and made a claim upon the defendant for $7,000, as for a total loss; and that the defendant accepted the abandonment and transfer.

The answer admitted the character and general occupation of the tug, and the issuing of the policy to the plaintiff, and denied every allegation in the petition not expressly admitted in the answer to be true. The second and third defenses contained in the answer were as follows:

'Second Defense. And, by way of further answer, and for a second defense, defendant says that said tug, while on Lake Huron, was rendered helpless and unseaworthy and in great danger of springing a-leak and sinking by the breaking of her shaft, a part of her machinery, which breaking was not caused by stranding, collision or the vessel being on fire, and was compelled to and did abandon the vessel which she had in tow; and while in such helpless, unseaworthy, and perilous condition, said tug was picked up and towed to Port Huron, a place of safety and a port of repair, where every facility and convenient means of repairing said tug were at hand; yet defendant avers that said tug was not there repaired, but, without the knowledge or consent of defendant, said tug, in the same helpless and unseaworthy and dangerous condition before described, was towed out of and past said port of Port Huron, and was afterwards towed in the same condition into and through and

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past the port of Detroit, at which last-named place every facility and all conveniences existed for repairing said tug, and which also was a place of entire safety; and, without any notice to defendant, and without its knowledge and consent, the said tug being then and at all times hereinbefore mentioned in the possession and control of plaintiff and his agents, said tug was, in such helpless and unseaworthy and dangerous condition, towed out upon Lake Erie, not in any manner navigating as a tug or by or with the aid of her own machinery and appliances, and, soon after reaching Lake Erie, without any stress of weather, the said tug sprung a-leak and was sunk.

'Third Defense. And, for a further and third defense, the defendant says that, while said tug N. P. Sprague was on Lake Huron, having in tow several vessels, part of her machinery, to-wit, her shaft, broke, the said breaking not being caused by stranding, collision, or the vessel being on fire, whereby said tug was completely disabled, and was compelled to and did give [8 S.Ct. 537] up her said tow, and was rendered unseaworthy and helpless, and was in great and constant peril of springing a leak and sinking by the working of her propeller wheel and broken shaft attached thereto; and, in that condition, she was picked up, and, by direction of her master, towed to Port Huron, Michigan, which was a place of safety, and at which every facility and convenient means for repairing said tug in all respects were at hand, but the plaintiff negligently failed and neglected to repair, or cause to be repaired, said tug, and negligently, and without the knowledge or consent of the dependant, caused her to be towed out of and away from said port of safety and repair, in the unseaworthy and dangerous condition above described; and afterwards, in the same condition, said tug was towed into and through and past the port of Detroit, a place of safety, where every means and facility for repairing said tug was at hand and convenient; yet the plaintiff, not regarding his duty in that behalf, negligently failed to repair, or caused to be repaired, the said tug, and permitted her, in the unseaworthy, helpless, disabled, and dangerous condition before described, to be towed out of Detroit river, and out upon Lake Erie; that, soon after reaching the

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lake, and meeting with a slight and ordinary swell, the said tug, by reason of her said broken machinery, and by reason of her said unseaworthiness and helpless and dangerous condition, sprung a serious leak, and soon after was sunk.'

The plaintiff demurred to the second defense, as not stating facts sufficient in law to constitute a defense to the cause of action alleged in the petition, and replied to the third defense as follows: 'This plaintiff admits that, while the tug N. P. Sprague was on Lake Huron, having in tow several vessels, a part of her machinery, to-wit, her shaft, broke, whereby said tug was compelled to and did give up her said tow, and was rendered helpless, and was in this condition, by the direction of her master, towed to Port Huron, michigan, which was a place of safety; that said master caused her to be towed away from Port Huron to and past Detroit, which was also a place of safety; and that, soon after reaching Lake Erie, on her way to Cleveland, she sprung a leak, and soon after sunk; but this plaintiff denies all and singular the allegations in said third defense contained, except those hereinabove admitted.'

The court sustained the demurrer to the second defense, and the issues of fact joined were tried by a jury, which returned a verdict for the plaintiff for $7,569.33. A motion for a new trial was overruled, and a judgment was entered in favor of the plaintiff for the $7,569.33, and interest, and costs, on the twenty-fifth of March, 1886, the verdict having been rendered on the twenty-fourth of February, 1886. The defendant has brought a writ of error to review this judgment.

There is a bill of exceptions, filed on the twenty-fifth of March, 1886, which sets forth that, at the trial of the case, the plaintiff, to maintain the issue on his part, introduced and offered in evidence certain testimony, which is set forth. At the close of such testimony it is stated that counsel 'moved the court to take the case from the jury on the ground of absence of proof of a loss of plaintiff's vessel within the policy, and because there is not sufficient testimony to justify a recovery;' that 'the motion was overruled by the court, to which ruling the defendant duly excepted;' and that 'the foregoing was

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all the testimony offered by the...

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