268 Pa. 547 | Pa. | 1920
Opinion by
Plaintiff owned and operated a tow boat insured by the Insurance Company of North America and the Home Insurance Company in separate policies and different amounts, but containing identical provisions with respect to the risk covered. The boat capsized while navigating the Monongahela river resulting in a total loss and actions were brought to recover the amounts of the policies. The two cases were, by agreement, tried together and resulted in a verdict for plaintiff in the full amount of both policies. The assignments of error complain of the refusal of the trial judge to give binding instructions for defendants and the subsequent refusal of the court to enter judgment for defendants non obstante veredicto.
The material parts of the policies are as follows: “The perils which this company assumes under this policy, are the unavoidable dangers of the rivers......excepting all perils, losses or misfortunes arising from or caused by the gross negligence, recklessness, or willful misconduct of the owner, master, officers or crew of the said vessel,......or from any other legally excluded causes,......or any loss or damage arising from or occasioned by said vessel being unduly laden,” etc., together with numerous other excepted causes not material
At the time of the accident the boat was running “light,” that is without tow of other vessels, and was proceeding up stream between Dravosburg and Isabelle Mine. At a bend of the river the vessel suddenly capsized, turning bottom upward. At this time it was running at slow speed in the regular channel with practically no wind and little current. The captain testified he was unable to fix the cause of the accident, although there is evidence in the case, hereafter referred to, which in a manner accounts for the boat’s unexpected behavior.
The theory relied upon by plaintiff for recovery was that the loss resulted from the unavoidable dangers of the river and not from any of the excepted causes mentioned in the policy. In support of this theory, evidence was offered to prove the boat was in sound condition, duly laden, properly manned and operated and did not capsize by reason of one or more of the excepted causes. On this testimony, plaintiff claims a right to recover without showing the exact cause of the disaster. The defense was based on two grounds: first, that the vessel was improperly laden by reason of an excess amount of coal stored on the upper deck, making it top-heavy, and, second, that the boat was not operated with proper care and skill, the crew being intoxicated at the time the accident happened. The evidence was conflicting on these matters and the trial judge properly submitted them to the jury with the instruction that “if you should find, from the weight of the testimony given you, that this accident that happened to the plaintiff’s tow boat was due
The argument of defendants is, it was not sufficient for plaintiff to prove the vessel was in good repair, duly laden, properly manned and operated and that the accident did not occur from any of the excepted causes but plaintiff must go further and show the actual cause of the accident so that it might be determined whether such cause was one of the unavoidable dangers of the river. With respect to this the trial judge charged: “We say to you, as a matter of law, that, because the cause of the accident could not be ascertained, the plaintiff! is not prevented from obtaining a recovery. You observe that both of the defendants insured against the unavoidable dangers of rivers; and, therefore, it is that thing against which the defendants agreed to indemnify the plaintiff, and, as we said to you before, because the cause of the accident cannot be ascertained is not, of itself, sufficient to prevent a recovery.” The trial judge also affirmed a point to the effect that the burden of proving that the boat capsized by reason of a peril insured against was on plaintiff and also that, unless the jury found the cause was one of the unavoidable dangers of the river, there could be no recovery; and defined “unavoidable dangers” of the river as meaning “that an accident happened notwithstanding the boat was operated with reasonable care and skill by those in charge, who were ordinarily competent for their duties.” The verdict of the jury established that the boat was not unduly laden and was prop
In the first place, a marine insurance policy, as in the case of other insurance policies, will be given a liberal construction in favor of the insured and all doubts resolved in his favor: Western Ins. Co. v. Cropper, 32 Pa. 351; consequently the risks insured against in this case are the “unavoidable dangers” of the river, with certain enumerated exceptions; any accident occurring during the operation of the boat, and shown not to fall within the excepted causes, must be within the terms of the policy, if, by a reasonable construction it can be held to be an unavoidable danger of the river.
The word “unavoidable” has been held to mean unpreventable by the persons operating the boat with due care and skill: Hays v. Kennedy, 41 Pa. 378, 386. That the present accident was unavoidable within the meaning of this definition has been established by the verdict of the jury. That it was a “danger of the river” seems equally clear from the general rule that such words include the same character of losses as are covered by the expression “perils of the sea” which are held to embrace all kinds of marine casualties, such as shipwrecks, foundering, stranding, collision, etc.: 26 Cyc. 652; Gordon v. Little, 8 S. & R. 533, 562. This case is free from action of the elements, or other act of God, causing or contributing to the overturning of the vessel. The term “unavoidable accident,” however, is not limited to such causes as are within the common law meaning of the expression “act of God,” which confines it to occurrences happening without human intervention and notwithstanding human effort to prevent it, but includes those in which human agencies concur. “It is impossible, therefore, to define inevitable accidents by excluding the element of the intervention of man; for this element itself needs definition. In all the instances we have
Plaintiff was charged Avith the duty of establishing a loss within the terms of the policy: Baker v. Ins. Co., 12 Gray 603; Berwind v. Greenwich Ins. Co., 53 N. Y. Superior Ct. 102; but not to produce proof of the particular cause of the capsizing of the vessel. To cast this latter burden upon it might have defeated the very object in taking out the insurance. It Avas sufficient to show a probable or even a possible cause (Western Ins. v. Tobin, 32 Ohio State 77, 92) and to exclude such causes as plaintiff expressly warranted not to exist, which was done by showing the vessel was seaworthy, properly manned and operated Avith reasonable care and skill. The law applicable in such case was well summarized in Marcy v. Sun Ins. Co., 14 La. An. 264, as fol
While it was unnecessary, under the circumstances of this case, for plaintiff to prove definitely the cause of the accident, there is, in fact, evidence in the record from which such cause may readily be inferred. The boat, like other similar craft, was built for a shallow draught of three feet with the top of the pilot house twenty-two
The judgment of the court below is affirmed.