Commercial Union Assur. Co. v. Foster

• Decision Date: 20 May 1964
• Docket Number: No. A-9942,A-9942
• Citation: 379 S.W.2d 320
• Parties: COMMERCIAL UNION ASSURANCE COMPANY, Ltd., Petitioner, v. L. R. FOSTER, Respondent. dnt
• Court: Texas Supreme Court

Page 320

379 S.W.2d 320

COMMERCIAL UNION ASSURANCE COMPANY, Ltd., Petitioner, v. L. R. FOSTER, Respondent. dntNo. A-9942.

No. A-9942.

Supreme Court of Texas.

May 20, 1964.

Rehearing Denied June 17, 1964.

T. G. Schirmeyer and L. G. Kratochvil, Houston, for petitioner.

R. Philip Schulze, Houston, for respondent.

SMITH, Justice.

This suit was instituted in the 157th District Court of Harris County, Texas by Respondent, L. R. Foster, hereafter referred to as plaintiff, against Petitioner, purposes. The yacht is a 32-foot Chris-Craft Ltd., hereafter referred to as defendant. Plaintiff sought to recover under the terms of a marine insurance policy, which defendant had issued to plaintiff, for a loss arising out of the sinking of plaintiff's yacht, Nataco.

The trial court, sitting without the intervention of a jury, entered judgment for defendant. Plaintiff appealed to the Court of Civil Appeals for the First Supreme Judicial District at Houston, Texas. Upon equalization of the dockets of the Courts of Civil Appeals by this court, this cause was subsequently transferred to the Court of Civil Appeals for the Sixth Supreme Judicial District at Texarkana, Texas, which court reversed the judgment and remanded the cause to the trial court. 373 S.W.2d 395. The judgment of the Court of Civil Appeals is reversed and the trial court judgment is affirmed.

The facts are these: On or about February 1, 1960, a Captain Jack Roberts, on behalf of defendant, surveyed the plaintiff's yacht, Nataco, to ascertain and report upon the condition of the yacht for underwriting purposes. The yacht is a 32-foot Chris-Craft Cruiser, which is constructed of wood with a flat transom stern and rounded bilge. As a result of his inspection, Captain Roberts recommended that the plaintiff have the Nataco hauled out of the water at a marine repair yard, and have necessary repairs made to the hull so that certain seepage in the transom could be stopped.

Defendant issued the marine insurance policy in question to plaintiff, insuring the yacht. The terms of the policy extended from February 1, 1960, to February 1, 1961. Under the hull insurance coverage, the Nataco was insured against losses caused by '* * * the adventures and perils of the seas and waters, * * * vandalism and malicious mischief, * *' ¹ The policy further provided that the yacht must 'be laid up and out of commission afloat for the entire policy term at Greens Bayou, Texas.' In accordance with the policy provisions, plaintiff moored the Nataco in his boathouse at the rear of his residence at Greens Bayou, Texas.

On October 16, 1960, plaintiff, together with his brother and brother-in-law, made various repairs aboard the Nataco. In general, plaintiff and his associates were attempting to repair the afterdeck of the yacht. In order to accomplish these repairs, it was necessary to remove the 'after' section of decking and lift out the gasoline tanks. Certain hoses which connected the deck drains to outside drain fittings in the stern or transom of the yacht were also disconnected from the decking, when the decking was removed. Plaintiff tied off and tied upward these hoses leading from the outside drains in the stern of the vessel. This was done in order to prevent water from entering the hull of the yacht through these outside drain fittings which were near the waterline. This work stopped on October 16, 1960, without plaintiff having replaced the decking or the gasoline tanks. The drain hoses were tied off as described above.

On October 21, 1960, plaintiff was notified that the Nataco had sunk at her moorings in plaintiff's boathouse. Plaintiff informed defendant's agent, and was instructed by the agent employ someone to raise the yacht and do all possible to salvage her. On October 22, 1960, Nataco was raised by Anchor Boat Works.

On being raised, the outside drain fittings in the stern were found hanging loose outside the sternboard. In fact, in order to get the yacht pumped out, it was necessary to plug these drain holes in the stern or transom. Furthermore, the lines which had tied up the hoses connected to the outside drain fittings were missing, and the hoses were lying in the bottom of the yacht.

Defendant refused to authorize the repair of the Nataco. Thereupon, Anchor Boat Works, following plaintiff's instructions, repaired the yacht at the cost of $4,520.37. This suit followed.

In its Findings of Facts, the trial court found, in part, as follows:

'13. The work done by the Plaintiff and his brother and brother-in-law in the vicinity of the transom caused the screws, securing the drain discharge fittings, to give way from an unseaworthy stern board or transome plank at or near the water line at the stern of the NATACO.

'15. The NATACO did not sink by reason of vandalism or malicious mischief or any other insured peril.

'16. The NATACO did not sink by reason of a peril of the sea, but rather by the failure of Plaintiff to keep and maintain his yacht in a seaworthy condition while the NATACO was afloat in calm water and moored in Plaintiff's boathouse. The water entered the hull of the NATACO through openings in the stern of the yacht where the discharge fittings of the cockpit drains should have been made fast to the stern planking at or near the waterline. There was no external damage to the hull or skin of the NATACO. The NATACO did not sink by reason of some unexplained cause.'

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