The Merchants' Ins. Co. of Chicago v. Morrison

• Decision Date: 30 September 1871
• Citation: 1871 WL 8377,14 Am.Rep. 93,62 Ill. 242
• Parties: THE MERCHANTS' INSURANCE COMPANY OF CHICAGOv.EZEKIEL MORRISON.
• Court: Illinois Supreme Court

62 Ill. 242

1871 WL 8377 (Ill.)

14 Am.Rep. 93

THE MERCHANTS' INSURANCE COMPANY OF CHICAGO

v.EZEKIEL MORRISON.

Supreme Court of Illinois.

September Term, 1871.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook County.

Messrs. HITCHCOCK, DUPEE & EVARTS, for the appellant.

Mr. H. S. MOORE and Mr. SIDNEY SMITH, for the appellee.

Mr. JUSTICE MCALLISTER delivered the opinion of the Court:

In June, 1868, the appellee, being engaged in the lumber business at Muskegon Lake, in Michigan, became the owner of the then propeller “Omar Pacha.”

This lake is situated some five miles from the east shore of Lake Michigan, is connected with the latter by a navigable river called the Muskegon River; constitutes a safe harbor, and is known as the Port of Muskegon. During the remainder of the season of 1868, after appellee became the owner, the propeller was employed by him in the lumber trade between that port and Chicago; at the close of navigation the vessel was taken to the Muskegon harbor, where she remained until the 10th of April, 1869; during the winter of 1868-69 she was thoroughly overhauled, repaired, and changed into a lumber barge, the work and repairs costing upward of ten thousand dollars. On the 1st of April, 1869, while the vessel was still in that harbor, through the action of an insurance agent and solicitor a policy of insurance upon the body, tackle, apparel, and other furniture of this vessel was issued by appellant to appellee, insuring the same in the sum of three thousand dollars, from noon of the 1st day of April, 1869, to noon of the 30th day of November, 1869. This was a valued policy, containing an express warranty on the part of the assured that the vessel was then in safety; that she was to be employed exclusively in the freighting and passenger business, and to navigate only the waters, bays, harbors, rivers, canals, and other tributaries of Lakes Superior, Michigan, Huron, St. Clair, Erie, and Ontario, and River St. Lawrence to Quebec, usually navigated by vessels of her class during the portion of the life of the policy between noon of April 1st and noon of November 30th.

The perils insured against were of the lakes, rivers, canals, fires, and jettison, excepting all perils, losses, misfortunes, or expenses consequent upon, and arising from or caused by the following or other legally excluded causes, viz.: * * “Incompetency of the master, or insufficiency of the crew, or want of ordinary care and skill in navigating said vessel, and in loading, stowing and securing the cargo of said vessel, rottenness, inherent defects, overloading, and all other unseaworthiness,” etc.

The policy contained the usual recital of payment of the premium.

The vessel remained in the port where the repairs had been made, where she was at the time the policy was issued, until the 10th day of April, 1869, when, being laden with a cargo of lumber, she set out upon a voyage to Chicago. She continued engaged in the lumber trade between those ports until the 8th day of October, 1869, and then, while lying at a dock in the Muskegon harbor, and during the life of the policy, she was consumed by fire, not the result of unseaworthiness.

The usual protest, proof of loss and abandonment necessary to charge the underwriters, having been made and the appellant having refused to pay the amount insured, this action was brought upon the policy. The cause was tried before the court and a jury; after hearing the evidence, which was conflicting, the jury returned a verdict in favor of the assured, upon which judgment was rendered, and the case brought to this court by appeal.

A single question of law has been presented and discussed in this court. Upon the trial the court permitted the insurance company to introduce evidence tending to show the want of seaworthiness of the vessel during the season of 1869, but with the avowed purpose of showing that she was unseaworthy at the time of setting out upon her first voyage after the insurance. Many witnesses were examined as to this point, upon both sides; but when we consider the presumption of law that she was seaworthy, the clear and satisfactory evidence of the thorough overhauling and repairs which she had received immediately previous to setting out upon such voyage, and contrast the strength of appellee's case with that sought to be made by appellant, it seems to us that the clear weight and preponderance of evidence are with the appellee. Nevertheless, there was sufficient to warrant appellant in asking the court to submit the question of fact to the jury, if the counsel were right in their law as involved in the following instruction, which the court refused:

“The jury are instructed that the law implies a warranty on the part of the plaintiff that the ‘Omar Pacha’ was seaworthy on setting out upon her first voyage after the time from which the policy was to take effect, provided she set out on such voyage from a port in which proper repairs could have been made; and if they believe, from the evidence, that she was not seaworthy when she left such port on such voyage they will find for the defendant.”

The refusal to give this instruction forms the basis of appellant's argument. The policy, we have seen, was made on the first day of April, 1869, whereby the vessel was in terms insured against certain perils, among which were those of fire, from noon of that day. Under these circumstances, did the law imply a warranty that the vessel should be seaworthy when she set out upon her first voyage from that port; and was it requisite that she was seaworthy at that time, in the sense of that term as applied to voyage policies, in order to make the policy attach and charge the insurer for a subsequent loss by fire not arising...