Reliance Ins. Co. v. Brickenkamp, 3076

• Decision Date: 21 November 1962
• Docket Number: No. 3076,3076
• Citation: 147 So.2d 200
• Parties: RELIANCE INSURANCE COMPANY, Appellant, v. William A. BRICKENKAMP, Appellee.
• Court: Florida District Court of Appeals

Page 200

147 So.2d 200

91 A.L.R.2d 1290

RELIANCE INSURANCE COMPANY, Appellant, v. William A. BRICKENKAMP, Appellee.

No. 3076.

District Court of Appeal of Florida, Second District.

Nov. 21, 1962.

Rehearing Denied Dec. 20, 1962.

G. Morton Good, of Smathers & Thompson, Miami, for appellant.

William Gundlach and Floyd V. Hull, Jr., of Anderson, Gundlach & Hull, Fort Lauderdale, for appellee.

SHANNON, Chief Judge.

This is an appeal by the defendant from a final judgment entered upon a jury verdict holding the defendant liable on a policy of marine insurance. The appellant-defendant had issued a policy of marine insurance to the appellee-plaintiff wherein, among other things, was contained a clause which is in controversy here. The clause defined the risk insured against as:

'This insurance also to cover, subject to the special terms of this policy, loss of and/or damage to hull or machinery through the negligence of master, mariners, engineers, or pilots, or through explosions, bursting of boilers, breaking of shafts, or through any latent defect in the machinery or hull provided such loss or damage has not resulted from want of due diligence by the owners of the vessel, or any of them, or by the manager.' (Emphasis added).

Apparently the insured boat had been used only about twenty hours when it sank in the vicinity of Fort Lauderdale, Florida. The record shows that prior to its use that day the exhaust pipe of the vessel could be seen protruding through the transom and that water could be seen issuing therefrom. Within approximately one-half hour the plaintiff observed smoke coming out of the hatch and immediately pulled the vessel into a canal, where it sank.

The facts in the case are not disputed and so we will cite from the appellant's brief the cause of the accident as:

'* * * It was found that the rubber hoses between the exhaust elbows and the pipes going out of the transom of the boat were burned in half, allowing water to enter the hull. The holes in the rubber exhaust hoses were caused by the loss of cooling water circulation to the engine, which, in turn, resulted from a water pump failure, which failure was caused as a result of the drive belt slipping. The cause of the belt slippage was a maladjustment of the generator, which adjustment draws the belt tight on the water pump. The generator is mounted on a swivel bolt and can be swung in an arc to either tighten the belt or to loosen it. Once the generator is properly positioned and the belt is properly tensioned, a second bolt on the generator is tightened to hold it in its proper place. There was nothing physically or mechanically wrong with the water pump, with the engine, with the generator, or with the belt, and the only difficulty was that the generator was improperly adjusted, which permitted the belt to be too loose and thereby slip on the water pump, causing a shortage of cooling waters to the engine, and consequently overheating of the exhaust gased and the burning of the exhaust hoses.'

The plaintiff and the defendant both put on expert witnesses as to the cause of the damage, but the essence of their testimony is encompassed within the statement which we have quoted. The defendant made a motion for directed verdict at the conclusion of all the testimony; the motion was denied; and thereafter the jury found against it.

Both the appellant and appellee have divided the questions presented to us into several categories, but, as we see it, there is one question that is determinative of the whole issue, and that is whether or not under the facts of this case the cause of loss came from a latent defect in the machinery or hull, within the meaning of those therms as used in the marine policy of insurance. In other words, was the improperly tensioned water pump drive belt a latent defect in the machinery or hull, or was it not?

As is stated in Friedman v. Virginia Metal Products Corp., Fla.1952, 56 So.2d 515, 33 A.L.R.2d 956:

'It is a cardinal rule, that the construction of all written instruments, is a question of law and belongs to the courts, provided: 'the language used is clear, plain, certain, undisputed, unambiguous, unequivocal and not subject to conflicting inferences'. * * *'

That the language in the policy is unambiguous and unequivocal cannot be gainsaid. The question involved here is not an analysis of the language of the policy but is, rather, whether or not the facts in the case fit into the clause set out above.

In Waterman S. S. Corp. v. United States S. R. & M. Co., C.C.A. 5, 1946, 155 F.2d 687, the court stated:

'* * * 'A latent defect is one that could not be discovered by any known and customary test.'9

"A comparative local weakness must be based upon some visible defect in the material, or should be shown under a test to be fairly pronounced, in order to indicate that bursting was not due to wear and tear or inevitable depreciation, rather than to what can be termed a latent defect in any workable sense.'10

'A true latent defect is not a gradual deterioration but is a defect in the metal.11 The ship owner has the burden

of showing that the latent defect was not discoverable.12

The law dealing with 'latent defect in machinery or hull' has been fairly uniform. In the case of Ferrante v. Detroit Fire & Marine Insurance Co., D.C., 1954, 125 F.Supp. 621, it is stated:

'On examination of the evidence, we found no latent defect existed. Defendants' expert testimony on the subject of latent defects was unsatisfactory and the manufacturer's report contradicted this testimony. From the evidence we found that the shaft failure and entire engine damage was proximately caused by negligence of the engineer in failing properly to lubricate the engine, and in failing to observe the symptoms of inadequate or improper lubrication which were or should have been apparent to a competent engineer. * * *'

The condition which ultimately caused the sinking of the vessel in the instant case was not a latent defect, but it was, as shown by the record, one that was difficult to see or to find. If the condition had been on deck it would have been seen readily, but merely because it was difficult of ascertainment does not draw it into the category of a latent defect.

The defendant below moved for directed verdict at the conclusion of all the testimony and we think that the trial judge erred in refusing to so direct.

Reversed.

SMITH, J., concurs.

WHITE, J., dissents.

WHITE, Judge (dissenting).

The subject of plaintiff's loss was a new eighteen-foot boat powered by an inboard motor and insured inter alia against negligent operation and latent structural and mechanical defects under a comprehensive type policy issued by the defendant-appellant. The policy provision pertinent to this case insured the plaintiff...