Union Marine Ins. Co. v. Charles D. Stone & Co.

• Citation: 15 F.2d 937
• Decision Date: 01 December 1926
• Docket Number: No. 3730.,3730.
• Parties: UNION MARINE INS. CO. v. CHARLES D. STONE & CO.
• Court: U.S. Court of Appeals — Seventh Circuit

15 F.2d 937 (1926)

UNION MARINE INS. CO. v. CHARLES D. STONE & CO.

No. 3730.

Circuit Court of Appeals, Seventh Circuit.

December 1, 1926.

A. C. Wetterstorm, of Chicago, Ill., for plaintiff in error.

Charles E. Kremer, of Chicago, Ill., for defendant in error.

Before ALSCHULER, EVANS, and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge.

This is an action on a marine insurance policy on goods shipped from Chicago to Milan, Italy. It was brought in the municipal court in the city of Chicago, was removed to the court below, and tried upon the original statement of claim filed in the municipal court. The parties will be referred to as they appeared below. In its statement of claim plaintiff alleged that "during transit the said goods were damaged by sea water, theft, and pilferage," to the amount sued for. Defendant pleaded the general issue, a jury was called, and, at the close of plaintiff's evidence, the defendant, offering no evidence, moved the court to direct the jury to return a verdict in its favor. The defendant also requested the court to instruct the jury that, if they found for plaintiff, there was no evidence to justify a finding of damages in excess of $65. These motions were overruled and exceptions taken, and the rulings are assigned as error. The jury returned a verdict for plaintiff for $3,500 and interest from January 31, 1921, and judgment was entered accordingly.

The policy, introduced in evidence, in addition to insuring against theft, pilferage, and certain losses arising from explosion, provides:

"And touching the adventures and perils which the said company is contented to bear and does take upon itself in the voyage so insured as aforesaid they are of the Seas Men-of-War Fire Enemies Pirates Rovers Thieves Jettisons Letters of Mart and Countermart Surprisals Taking at Sea Arrests Restraints and Detainments of all Kings Princes and People of what Nation Condition or Quality soever Barratry of the Master and Mariners and of all other Perils Losses and Misfortune that have or shall come to the Hurt Detriment or Damage of the aforesaid subject matter of this Insurance or any part thereof."

The statement of claim contains no averment as to how the loss occurred, except that the goods were damaged by sea water, theft, and pilferage. The only evidence of loss by theft or pilferage is contained in the below-mentioned "certificate of damage." This was admitted in evidence only because it was in the possession of the defendant. Taking it as properly admitted, and as proving some loss by theft, there is no way to determine what part of the loss is attributable to that cause. As some of the loss was attributed to sea water wetting, and as the whole loss shown in this certificate of damage was only $65, the loss by theft must have been inconsiderable, but what small part of it may be laid to theft cannot be told from the evidence. The verdict therefore must stand, if it stands at all, upon loss from perils of the sea.

The clause covering perils of the sea is very old and has many times been construed. Speaking of it, Winter on Marine Insurance (Ed. 1919) p. 140, says:

"Read without reference to the wealth of legal lore referring to this particular part of the policy, the document is vague, misleading, and perhaps unintelligible. But practically every word in the paragraph has been weighed in the judicial balance and its own meaning and its meaning in relation to the context has been determined."

The Supreme Court has held that, in insuring against loss by perils of the sea, the underwriters "insure against losses from extraordinary occurrences only; such as stress of weather, winds and waves, lightning, tempests, rocks, &c. These are understood to be `perils of the sea' referred to in the policy, and not those ordinary perils which every vessel must encounter." Hazard v. Insurance Co., 33 U. S. (8 Pet.) 557, on page 585, 8 L. Ed. 1043. The words "all other perils, losses, and misfortunes" cannot enlarge the perils insured against. Used as they are, they cover only risks which are of like kind to those previously enumerated and none other. Thames, etc., Marine Ins. Co. v. Hamilton, 12 App. Cases, 484; Sassoon & Co. v. Western Assurance Co., 1912 App. Cases, 561; Bluefields, etc., v. Western Assurance Co. (C. C. A.) 265 F. 221, on page 227. This rule of construction is too familiar to require further citation.

It has been uniformly held...