Rosenheim v. America Ins. Co.

• Decision Date: 31 October 1862
• Citation: 33 Mo. 230
• Parties: MORRIS ROSENHEIM et al., Respondents, v. THE AMERICA INSURANCE COMPANY, Appellant
• Court: Missouri Supreme Court

33 Mo. 230

MORRIS ROSENHEIM et al., Respondents,

v.THE AMERICA INSURANCE COMPANY, Appellant

Supreme Court of Missouri.

October Term, 1862.

Appeal from St. Louis Court of Common Pleas.

The facts are sufficiently stated in the opinion of the court. The instructions given and refused were as follows:

By the court, of its own motion:

“The court instructs the jury that, if the grounding of the steamer Belfast was a fact that would have tended to influence the defendant's estimate of the character and degree of the risk it was about to assume; that is, if it was a fact the knowledge of which would naturally and directly have tended either to prevent the defendant from taking the risk, or to induce it to charge a higher rate of premium for taking it, then the fact of the steamer grounding was material to the risk; and if it was known to either of the plaintiffs at the time of their application for insurance on the goods in question, and not known to the defendant, then it was the duty of the plaintiffs, at the time they made their said application, to communicate the fact to the defendant or its agent, and if they failed to do so they cannot recover in this suit. If, however, the fact of the steamer grounding was not material to the risk, as above explained, the plaintiffs might without prejudice to their rights remain silent about it, although it was unknown to the defendant, unless perchance they acted in bad faith; for, if they remained silent or failed to communicate the fact to the defendant with the intent to commit a fraud on the defendant, their insurance is void, whether the fact was material or not. The burthen of proving the facts that will avoid the plaintiffs' insurance, according to the foregoing instructions, rests upon the defendant.

“The jury will disregard the testimony given by Captain Smith concerning the capacity and experience of Captain Bowen and the mate, Alexander Gower, and will consider the case in the same way as if Captain Smith had not testified on that subject.”

Defendant's instructions given:

“If the jury believe from the evidence that at the time of the application for insurance on the goods, the boat on which the goods were being transported was at the time in an unsound or unseaworthy condition, and so known to be to plaintiffs, or either of them, then the plaintiffs cannot recover in this action.

If the jury believe from the evidence that at the time of the application for insurance on the goods, the boat on which the goods were being transported was in an unsound or unseaworthy condition, then the plaintiffs cannot recover.”

Defendant's instructions refused:

“If the jury believe from the evidence that at the time of the application for insurance on the goods, a portion of the cargo had been thrown overboard and jettisoned, and that such throwing over was known to the plaintiffs, or either of them, then they will find for the defendant.

If the jury believe from the evidence that at the time of the application for insurance on the goods, the said goods were damaged by a peril of the river already incurred, or in immediate danger of damage from such peril incurred, or that the boat on which such goods were in course of transportation was then unsound or unseaworthy, and so known to be to plaintiffs, or either of them, then the plaintiffs cannot recover.”

Krum and Harding, for appellant.

I. The theory upon which the court placed the case before the jury is erroneous. The court left it for the jury to determine whether or not the stranding of the Belfast, the jettison of a part of her cargo, the falling of the river, and the ineffectual attempts made to relieve the boat during the time plaintiff Collins remained on her after her stranding, were facts material to be communicated to the company.

We maintain that the facts were necessarily material, and that the court should have instructed the jury, that if they believed those to be the facts from the evidence, the plaintiff could not recover. We are aware that, generally, it is proper to leave the question of the materiality of facts concealed, and the question of seaworthiness, to the jury; but whenever, from the nature of the facts, it is apparent that they must be material, the court should act upon the hypothesis that they are. In Burritt v. Saratoga Insurance Co., 5 Hill, 188, the court (p. 192) seems to recognize this doctrine.

Unseaworthiness is presumed as a matter of law under certain circumstances. (2 Johns. 124; 3 Johns. Ca. 76; 2 Bay, 503; 2 McCord, 336; 20 Ohio, 211.)

So the courts have declared that intelligence of a certain class received by the assured in time to have been communicated to the insurer before the issuing of the policy, should have been made known to the latter, and that a failure to do so avoided the policy. (2 Caines, 224, and same case, 1 J. R. 150; Harper, 235; 26 Penn. State Rep., 2 Casey, 192; 1 W. Black. 463.)

II. The court below erred in its admission and exclusion of testimony.

F. C. Sharp and Wm. N. Grover, for respondents.

I. The objection made by defendants to portions of the depositions of Wood and Church were general objections, without any specific statement of the grounds of objections. The overruling of general objections will not be reviewed in this court. (Field v. Hunter, 8 Mo. 131; Frost v. Prior, 7 Mo. 316; Dickey v. Malachi, 6 Mo. 186; Dozier v. Jermain, 30 Mo. 220.)

II. The testimony excluded, on motion of plaintiff, was excluded for good and sufficient reasons appearing upon the record, because of the leading character of the questions or of the incompetency or irrelevancy of the answers.

Persons of skill are allowed to give their opinions in evidence only in cases where, from the nature of the subject, facts disconnected from such opinions cannot be so presented to a jury as to enable them to pass upon the question with the requisite knowledge and judgment. (1 Greenl. Ev. § 441, and note 4; Jefferson Ins. Co. v. Cotheal, 7 Wend. 72; Campbell v. Rickard, 5 Barn. & Ad. 840; Westbury v. Aberdeen, 2 Mees. & Wel. 267; Rawlings v. Desbrough, 2 Moody & Rol. 329.)

III. Whether or not the grounding of the Belfast at the time of the insurance was a material fact, was a question for the jury. The question was properly presented to the jury and passed upon. (See authorities cited above.)

DRYDEN, Judge, delivered the opinion of the court.

This was an action on a marine policy of insurance. By the terms of the contract the defendant [appellant] was to insure the goods of the plaintiffs, shipped, or to be shipped, from New Orleans to St. Louis on good steamboats, the shipments being reported to the defendant and endorsed on the policy. The defendant relied upon two grounds of defence:

1. That, at the time of application for the insurance, the plaintiffs concealed from the defendant facts material to the risk; and,

2. That at the time of the application the steamboat on which the shipment was made was unseaworthy.

A trial was had, resulting in a verdict and judgment for the plaintiffs, and the Common Pleas refusing to set the verdict aside, the defendant has appealed to this court. The evidence on the trial disclosed the following facts:

On the 13th of March, 1857, Collins, one of the plaintiffs, shipped, at the port of New Orleans, on the steamer Belfast, bound for Memphis, a stock of goods of the plaintiffs, destined for St. Louis. On the same day the Belfast set out on her voyage, Collins being a passenger.

On the 17th of March, one hundred and fifty miles below Memphis, the...