Union Ins Co Philadelphia v. Smith
Decision Date | 30 January 1888 |
Citation | 31 L.Ed. 497,124 U.S. 405,8 S.Ct. 534 |
Parties | UNION INS. CO. PHILADELPHIA v. SMITH |
Court | U.S. Supreme Court |
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 dis- trict 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.'
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 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 w re 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:
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 all the testimony offered by the plaintiff to maintain the issues on his part, in chief.' It is then stated that the defendant, to maintain the issues on its part, offered in evidence certain testimony, which is set forth. It is then stated that 'the foregoing was all the testimony offered upon either side, and upon both sides, in the trial of said case;' th...
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