198 Pa. 206 | Pa. | 1901
Opinion by
This is an action of assumpsit brought to recover $3,000, the full amount of a policy of marine insurance issued to the plaintiffs by the defendant on the steam towboat “Dauntless.” The policy is dated January 7, 1897, and ran for one year. There was another policy on the boat of like amount and covering the same period, issued by the Eureka Fire and Marine Insurance Company of Cincinnati, Ohio. The policy issued by the defendant company fixed the value of the boat by agreement of the parties at $8,000. It was a stern wheel vessel and was used for towing purposes in the Ohio, Monongahela and Alleghenj’- rivers. In the early morning of March 8, 1897, the “Dauntless ” was taken to McLaughlin’s landing, on the Pitts-
The plaintiffs, claiming that the boat was a total loss, refused to assist in raising it. The defendant took charge of the boat, raised and repaired it, and on June 29,1897, tendered it to the plaintiffs, claiming that it had been restored to a better condition than it was just previous to the accident of March 8,1897. At the same time, the defendant presented the plaintiffs with a bill incurred in raising and restoring the “ Dauntless,” accompanied by a demand for payment. The plaintiffs declined to receive the boat or to pay the bill, and brought this action.
The defendant company denied its liability to the plaintiffs for the amount of the policy or any part of it, and interposed various defenses at the trial of the cause.
The risks assumed by the company under the policy were the unavoidable dangers of rivers, of fires, and of jettisons, that
It is further claimed that the plaintiffs neglected their duty by failing to comply with clause five of the policy after the vessel had sunk. This clause provides that in case of loss, the assured shall use every effort for the safeguard and recovery of the vessel by employing such means as can be obtained for that purpose, and after recovery shall cause it to be repaired, but in case of the neglect or refusal of the assured to do so, then the company may do it for account of the insured. In such case the company after taking from the cost the deductions allowed in the policy in case of a partial loss, shall contribute to the cost of the repairs in the proportion that the sum insured bears to the agreed value. It is provided in the policy that the acts of the assured or assurers in saving or repairing the property insured shall be held not to be a waiver or acceptance of the abandonment or of an acknowledgment of liability by the assurers. The learned court below thought that this clause should be construed in the light of, and in connection with, clause eight of the policy which provides that there shall be no abandonment as for a total loss, on account of the vessel grounding, unless the injury sustained (exclusive of the cost of raising, docking and any other general average charges) shall be equiv
The day of the accident the plaintiffs notified the defendant of their loss, and the following day filed with them a marine protest. They placed a watch in charge of the wreck, and in three or four days the defendant’s adjustor assumed control of it. The company raised and repaired it and tendered it to the plaintiffs, alleging that the boat was then in a better condition than before it was injured. The plaintiffs denying that such was its condition refused to accept it. The learned judge in his charge said there was no provision in the policy directly providing for a tender back to the assured of the repaired vessel, but notwithstanding the view thus entertained, he submitted to the jury to determine whether the boat was repaired so as to be as good as it was before the accident, and instructed the jury that if it was and the plaintiffs refused to accept it, there could be no recovery. The plaintiffs might have objected to this part of the charge as holding them to the performance of an obligation not contained in their contract, but surely the defendant has no right to complain.
The next question that need be noticed is, whether there was a total loss as contemplated in the eighth clause of the policy which would justify an abandonment of the vessel. As we have seen, clause eight of the policy provides that when the injury
The sixth point alleges error by the court in including the expense of raising the boat in the fifty per cent of its value required to make the total loss. That part of the charge is not accurate, but any error that might have arisen from it was cured by the statements in other parts of the charge that the vessel could not be abandoned unless the cost of the repairing exceeded one half the value of the boat, and the positive statement in the defendant’s fifth point, which was affirmed by the court, that clause eight of the policy “ must be interpreted as meaning that only the actual amount spent in repairs of the vessel shall be considered in calculating the fifty per cent of the total valuation of the vessel.”
• To summarize: The plaintiffs alleging that it was impracticable to repair the boat within the terms of the policy, refused to assist in raising and repairing it, and abandoned the vessel. The company raised and repaired it, and claiming that the repairs were less than one half of its value, tendered the boat to the plaintiffs and demanded payment of the plaintiff’s propor
The assignments of error are overruled and the judgment is affirmed.