Dix v. Union Insurance

23 Mo. 57 | Mo. | 1856

Ryland, Judge,

delivered the opinion of the court.

The questions here involve the correctness of the instructions given by the court to the jury, and also the propriety of refusing those asked by the defendant.

The suit is brought by the insured to recover his proportion of expenses incurred in getting the steamer Timour No. 2 (the property insured) afloat. The boat had grounded on a bar in the Missouri river. The petition alleges that these expenses were necessarily incurred to save the boat from a total loss. Tie policy contains an express stipulation that tbe insured, in case of loss or misfortune, shall use every practicable effort for saving tbe boat. The terms used are, “ for tbe safeguard and recovery of tbe steamboat, and if recovered, to cause tbe same to be forthwith repaired; and in case of neglect or refusal on tbe part of tbe assured, bis agents or assigns, to adopt prompt and efficient measures for the safeguard and recovery thereof, then the said insurers are hereby authorized to interfere and recover the said steamboat, and cause the same to be repaired for account of the assured; to the charges of which the said insurance company will contribute in proportion as the sum herein insured bears to the agreed value of this policy.” There was a trial by jury, and verdict for the plaintiff, and judgment accordingly. The defendant brings the case here by appeal, and questions the propriety of the instructions of the court. These instructions state, in substance, that, to entitle the plaintiff to recover, it must be shown that the boat grounded without the fault of the officers or crew, and that in consequence thereof the boat was in immediate danger of being totally lost or seriously damaged unless she was got afloat; and that the master and owners, for the purpose of rescuing the boat from this peril, in good faith incurred the expenses, and that the same were reasonable and proper under the circumstances then existing.

From the statement of the facts in proof before the jury, there can be no doubt but that the danger of total loss, or of very great injury, was so great and imminent, that the master and owners, as honest men, were bound, under this policy, to take immediate steps to get the boat afloat. They could not, in good faith, await until the bar was cut away up to the bow of the boat before they began to use efforts to rescue her from the misfortune.

Nor was there a necessity that the boat should be in danger of total loss. It is sufficient that the expense was necessarily incurred in rescuing the boat from any danger for which the underwriters would have been liable. The instructions, then, in our opinion, correctly lay down the law of the case as appli-. cable to the evidence before the jury.

The plaintiff states that on the night of the 24th day of August, 1853, while the boat was ascending the Missouri river, she ran upon a bar or mud flat in said river, ancl then and there grounded and became stuck thereon, so that it was out of the power of the officers and crew of said boat to get her off of said bar or flat, although every possible effort was made to do so; that when said boat grounded, the river was falling and continued to fall until the said boat was entirely out of the water, in which situation she remained about three months. The plaintiff states that, in order to save the boat from becoming a total loss, it became necessary to launch her and get her again in .the river, so that she would float; that some time in the month of November, 1858, he caused said boat to be launched for the purpose of saving her from becoming wholly lost, and by thus acting saved her from destruction.

The only possible objection to the instructions of the court consists in the rather loose way in which they are expressed in regard to the peril: “ The boat was in immediate danger of being lost or seriously damaged, or that it was in the highest degree probable at the time that it would be lost or seriously damaged.” We do not consider that this objection materially affects the merits of the matter in controversy. The facts were before the jury, and no one can doubt the imminent danger to the boat of total loss or serious damage. Had the boat not been Hunched, in all human probability she must have broken in two. There were no means in the power of ordinary steamboat machinery, spars and crew, to prevent this breaking, in the condition she was placed, when she was launched, in order to save her from destruction. “ Serious damage” must mean “ weighty, important damage. ” When we say a man is “ seriously wounded,” the idea of probable loss of life comes to the mind of the hearer; and though such expressions are too loose for grave judicial instructions, yet we can not say that in this case any harm was done thereby to the defendant.

It did not require a total loss, o'r imminent danger of a total loss, in order to make the assurers or underwriters liable to contribute to the expenses fairly and bona fide incurred in rescuing the boat therefrom.

The proof sustains, in substance, the .averments in the petition, and we have no doubt the jury were not misled by the words “ serious damage.” Seeing, then, no error calculated to affect, in any manner, the merits of the controversy, and believing that the law was fairly laid down to the jury, we will affirm the judgment;

the other judges concurring.