The British-American Assurance Company, of Toronto v. Wilson

• Decision Date: 04 October 1892
• Docket Number: 14,943
• Parties: The British-American Assurance Company, of Toronto, v. Wilson et al
• Court: Indiana Supreme Court

31 N.E. 938

132 Ind. 278

The British-American Assurance Company, of Toronto, v. Wilson et al

No. 14,943

Supreme Court of Indiana

October 4, 1892

From the LaPorte Circuit Court.

Judgment affirmed.

R. Rae J. A. Thornton and J. H. Orr, for appellant.

M. Nye and J. F. Gallaher, for appellees.

OPINION

Miller, J.

This was an action by the appellees against the appellant upon a policy of marine insurance.

The amended complaint is in substance as follows:

That the plaintiffs, Cook and Wilson, complain that on the 22d of June, 1888, the defendants, a corporation doing business under the laws of Indiana, executed to the plaintiffs its policy of insurance, a copy of which is attached to the complaint, and in consideration of the premium paid, and by the contract proposition made on said date, of which a copy is herewith attached, the defendant agreed to insure Cook and Wilson against any and all loss which they might sustain, by means of the perils and misfortunes that might come to the hurt, detriment or damage of all kinds of lumber and timber, goods, wares and merchandise, by reason of the shipment and during the voyage, to any of the vessels, or on any of the lakes, from the point of shipment to the point of destination from said 22d June, 1888, to the following 30th of November; that on or about the 31st of September 1888, the plaintiffs loaded on board the barge Rice, at the port of Deer Park, Lake Superior, bound for and consigned to Michigan City, a cargo of lumber, the property of the plaintiffs, consisting of 575,800 feet, of the value of $ 6,716.60, which cargo was covered by the policy of insurance of defendant.

On the 22d of September, the barge R.N. Rice, with cargo on board, left port of Deer Park in tow of the propeller Huron City, and bound for Michigan City, and while on said voyage the barge, by reason of the storms, was, by the perils and damages of the lakes and force of the waves, wrecked and lost, together with her cargo, of the value aforesaid; that due notice was forthwith communicated from plaintiffs to defendant, and thereupon the cargo was duly abandoned to the defendant by proper notice, and that the abandonment was accepted by defendant; that afterwards protest and proofs of loss according to terms of policy were made and forwarded to defendant, together with a copy of the invoice and tally-sheet of lumber, and made part of the proofs of loss. Plaintiffs aver that they performed all the provisions of the policy required by them to be performed, and the defendant became liable to them for the value of said cargo, to wit: $ 6,717.60, but that the defendant wrongfully refuses to pay, and demands judgment for $ 7,500.

A demurrer to the complaint was filed and overruled, and this ruling is assigned as error, but no argument being made in support of this assignment, it is to be taken as having been waived. Elliott's App. Procedure, section 444.

The defendant answered, in substance, as follows:

First. Denies each and every allegation of the complaint.

Second. The defendant further answering says that when the cargo was taken on board on September 22, 1888, the Rice was not tight, staunch and strong enough to resist the ordinary perils of the lakes, and other perils covered by the policy of insurance in this case, and that the vessel was not at the time of shipment, nor at the time of loss of cargo, seaworthy, or lakeworthy, or fit to undertake and perform her intended voyage, and that she continued unseaworthy before, from and at said shipment of said cargo on board of her until the cargo was lost. The cargo was lost by reason of unseaworthiness, and not otherwise.

Third. That after the Rice had taken in and aboard said cargo mentioned in said complaint, she started on her intended voyage, etc., and was on the 26th day of September, 1888, at the port of Manistee, a place of safety, the master well knew that the said vessel was unseaworthy, and not fit to stand the ordinary perils of the lakes.

The port of Manistee was a port of repair, and it there became and was the duty of the master and others, or either of them, to repair said vessel and put her in a seaworthy condition, and that he neglected said duty, and on the morning of September 29, 1888, resumed the voyage in an unseaworthy and unsafe condition, and that the vessel and her cargo was thereby lost, and not otherwise.

Fourth. That the Rice, with said cargo on board on said voyage, in tow of the Huron City, a water craft owned by plaintiffs at the time said cargo was lost on Lake Michigan, September 30, 1888, under contract of towage to tow the Rice with cargo on board, whereof the plaintiffs were owners, and defendant underwriter; and that by terms of the contract of towage, it is provided that the officer of the Huron City should skilfully and carefully tow the Rice with cargo on board from Deer Park to Michigan City, the dangers of navigation alone excepted.

By the terms of the contract it became the duty of the master of the Huron City to carefully and skilfully tow the Rice and so manage the tow that the cargo might not be cast adrift or in any manner unnecessarily exposed to any peril which the master of the Huron City, in the conduct and management of his tow by due care and skill could prevent. But nevertheless the master was regardless of his duty in this respect, and did in violation of his duty cast adrift the Rice, and caused his vessel to abandon her, etc., and said cargo was by reason of said want of skill and care on the part of the officers lost, and not otherwise.

A reply of general denial put the case at issue.

The cause was tried by jury and a general verdict for the plaintiff for the full amount of the loss was returned, together with answers to the following special interrogatories submitted by the court:

"1. Was the barge R. N. Rice seaworthy when she commenced her voyage from Deer Park on the 22d of September, 1888, with plaintiff's cargo on board? A. Yes.

"2. Was the barge R. N. Rice unseaworthy when she put into Manistee on the 26th of September, 1888, and if so, could she have been made seaworthy at Manistee? A. No.

"3. Did the Rice leave the port of Manistee in an unseaworthy condition? A. No.

"4. Did the officer of the steamer Huron City act negligently in cutting the barge Rice adrift in Lake Michigan? A. No.

"And if not, did they cut her adrift to relieve the Huron City and the tow from a danger of navigation, and for the best interest of the property at risk? A. Yes."

The record, both in the journal entries and bill of exceptions, informs us that after the jury returned their verdict and answer to interrogatories the defendant moved the court for a judgment, notwithstanding the verdict, which motion was overruled and excepted to, and, thereupon, the jury was required to retire to their room and again answer interrogatory four, to which the appellants excepted, and the jury again returned into court with the answer revised.

The action of the court in directing the jury to retire to their room and revise their answer to this interrogatory is complained of. We could only interfere with the discretion necessarily lodged in the trial court where it appears from the record that the complaining party has been injured by the action of the court. We are nowhere informed what changes were made by the jury in their answer to the interrogatory, and can not, therefore, ascertain whether the court abused its discretion or the appellant was injured by the action of the court. Assuming that the change consisted in dividing the fourth interrogatory into two parts and answering each separately, we can not say that the action of the court was not in furtherance of justice.

It is earnestly contended by appellant's counsel that the court erred in overruling their motion for judgment in favor of the defendant, notwithstanding the general verdict.

The special findings of the jury override the general verdict only when both can not stand; and this antagonism must be apparent upon the face of the record, beyond the possibility of being removed by any evidence legitimately admissible under the issues. Lockwood v. Rose, 125 Ind. 588, 25 N.E. 710; Matchett v. Cincinnati etc., R. W. Co., post, p. 334. In reviewing the ruling upon the motion for judgment on the...