Jack Neilson, Inc. v. Chicago Insurance Company
| Decision Date | 24 June 1970 |
| Docket Number | No. 29129 Summary Calendar.,29129 Summary Calendar. |
| Citation | 429 F.2d 540 |
| Parties | JACK NEILSON, INC., Plaintiff-Appellant, v. CHICAGO INSURANCE COMPANY, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
William L. Von Hoene, New Orleans, La., for plaintiff-appellant.
William A. Porteous, III, New Orleans, La., for defendant-appellee.
Before BELL, AINSWORTH and GODBOLD, Circuit Judges.
Jack Neilson sued the defendant insurance company to recover on a marine insurance contract affording hull coverage, for damages incurred in the sinking of the Tug M/V Margaret. This appeal raises the correctness of a directed verdict in favor of the insurer and certain evidentiary rulings. We affirm.1
Plaintiff claims that the cause of the sinking was an insured peril, a grounding. Plaintiff's theory appears to be that the grounding damaged some of the tug's wheels and shafts, and that from this it may be inferred that it developed excess seepage or a leak which caused it to take water and sink. The insurer adequately raised the issue that the cause of the sinking was not a covered peril.
Plaintiff's proof, from the captain, established that on Friday morning, September 9, 1966 the tug grounded at least once "pretty hard." The captain sent a deckhand into the bilge to check packing glands. Seepage did not appear to be other than normal or increased after the grounding. Late Friday afternoon the tug tied up at her home port, Harvey, Louisiana, and remained there.
It was customary to pump the bilges each night. The captain slept on the boat Saturday night. On Sunday night he pumped out the bilges before going to bed. The water in the bilges seemed to be the normal amount that comes in over a 24-hour period. Later the same night the captain awakened and discovered the vessel was taking water. He was unable to get electric or gas pumps started or to get help. He gathered up his gear and left the boat, already listing badly, and caught a bus for Texas. Later that night, at a time unknown, the tug sank at its mooring. When the boat was raised it was found to have bent shafts and wheels. These are all the facts that would shed any light on the cause of the sinking.
The grant of a directed verdict was proper. This circuit has held that "evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions" will require submission to the jury. Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969). In the instant case, there was no such evidence of a cause-effect relationship between the grounding and the sinking.
Plaintiff urges that it was entitled to go to the jury on negligence of the master, which it says was covered by the policy. But...
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