Land v. Franklin Nat. Ins. Co. of N. Y.
| Decision Date | 01 March 1954 |
| Docket Number | No. 16838,16838 |
| Citation | 225 S.C. 33,80 S.E.2d 420 |
| Parties | LAND v. FRANKLIN NAT. INS. CO. OF NEW YORK. |
| Court | South Carolina Supreme Court |
Thomas, Cain & Nettles, Columbia, for appellant.
John Grimball, Columbia, for respondent.
The plaintiff was the owner of a twenty-six-foot speedboat on Lake Murray, powered by a 225-horse inboard motor, which was in the use and possession of his son, J. N. Land, Jr. The facts of the controversy will be stated largely from the latter's testimony at the trial of this action and the references hereinafter to 'Mr. Land' will be to him.
On September 1, 1950, after the boat had recently been repaired, the defendant, now appellant, issued its policy of marine insurance covering it for $1,500, for which annual premium of $75 was paid; it contained the following provisions:
'Section 'A'--Hull Insurance. In port and at sea, under power or sail, in docks and graving docks, and on ways, gridirons and pontoons. With leave to sail with or without pilots, to tow and assist vessels or craft in all situations, and to be towed and to go on trial trips.
'Perils * * * Touching the adventures and perils which we, the Assurers, are contented to bear, and do take upon us, they are of the seas, rivers, lakes and/or other inland waters, fire, assailing thieves, jettisons, barratry of the Master and Mariners, and of all other like perils, losses and misfortunes, that have or shall come to the hurt, detriment or damage of said yacht or any part thereof.
'Latent Defect and Negligence * * * This insurance shall also cover, subject to the average warranty herein, loss of or damage to the hull or machinery, through the negligence of Master, Mariners, Engineers or Pilots, by contact with aircraft, or through explosions, bursting of boilers, breaking of shafts, or through any latent defect in the Machinery or Hull (excluding, however, the cost and expense of repairing or renewing the defective part), provided such loss or damage has not resulted from want of due diligence by the Owners of the yacht, or any of them, or by the Manager, r by the Assured.'
Mr. Land was a member of a Coast Guard Auxiliary unit that maneuvered on the lake, for which purpose the boat was used, and also for pleasure. It was satisfactorily operated occasionally between September 1st and about September 24th when it was put through the usual Coast Guard maneuvers, after which it was briefly run at full throttle which produced a speed of over fifty miles per hour. When it was docked afterward, Mr. Land noticed that it was taking water and instead of leaving it at its usual mooring, he pulled it into shallow water, presumably as a precaution against sinking. That was on a Sunday afternoon and on the following Tuesday Mr. Land was notified that the boat had sunk, whereupon he had it raised and the motor removed to a repairman and the hull taken to another repair place.
He was experienced with motor boats over a period of twenty years and thereby qualified as an expert witness. He testified that the torque of the engine at full throttle caused the planking underneath the hull to open, the ribs giving under the strain of the engine at full throttle, which caused the leaking and sinking. This was emphasized on cross-examination by his statement that the torque of the engine was the only thing that could have caused the seams to open. He also testified that after the recent repairs and at the time of the issuance of the policy and subsequently the boat was seaworthy. He was supported in this opinion by the testimony of another, disinterested expert witness who annually inspected the boat for seaworthiness for the Coast Guard; but his last inspection was several months before, and prior to a preceding sinking of the boat after which it was last repaired.
Appellant's answer in this action upon the policy alleged as a defense that the boat was not seaworthy when insured, which constituted a breach of implied warranty; and further alleged that the damage did not result from a 'peril of the sea' or 'latent defect' within the terms of the policy. At the close of plaintiff's evidence motion of appellant for nonsuit was refused, whereupon it offered no evidence and moved for directed verdict which was also refused. Appellant then voluntarily agreed that only questions of law were involved, and the jury were discharged and the case was taken under consideration by the court. However, there was at least the contested fact of seaworthiness and the finding of the trial court thereabout will be affirmed, of which further mention will be made.
Order of judgment for plaintiff was thereafter rendered in which it was held that the loss came within the broad terms of the policy but it was not specified whether liability arose from a peril of the sea or from a latent defect. Judgment was awarded respondent in the sum of $1,093, which was the sum of the damages to the hull and engine, as established by the evidence, and the expenses of raising and removal of the boat from the water.
Appellant's first and second exceptions are to the effect that the only reasonable inference from the evidence is that the sinking of the boat was the result of neither a peril of the sea nor a latent defect, within the purview of the policy. The third exception is that it can only be reasonably inferred from the evidence that the boat was not seaworthy. The fourth exception is, we think, too general for consideration. The fifth is that if the sinking was caused by a latent defect, the cost of repairing the hull should be excluded from the amount of the judgment because it was the defective part.
The third exception, which relates to seaworthiness, is plainly without merit because the only pertinent testimony is that the boat was seaworthy at the time of the issuance of the policy. It had been recently repaired and had afterward successfully undergone numerous tests and trial runs. The boat was about twenty years old but was of double-planking construction and...
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