11 N.Y.S. 141 | N.Y. Sup. Ct. | 1890
This is an appeal from a judgment entered upon a nonsuit granted at the Warren circuit. The action was upon a policy of insurance issued by the defendant, upon the canal-boat called the “Mary V. Keenan,” and her tackle and apparel, for $1,200, with the privilege of carrying lime in barrels. The insurance was against and touching the adventures and perils of the inland lakes, rivers, canals, and fires that should come to the damage of said vessel, or any part thereof, excepting perils, losses, etc., consequent upon, arising from, or caused by, want of ordinary care and skill in loading and stowing the cargo of said vessel, from rottenness, inherent defects, and other unseaworthiness, from gangways and openings through the deck or sides improperly secured and protected, etc. While this policy was in force the boat was loaded at Green island from a train of railroad cars, with lime in barrels, both in the hold and deck, and was started in tow for Hew York, and, while halting temporarily at Albany, she was discovered to be on fire, smoke issuing from the hold in different places. The cargo on deck was immediately removed, and when that was done the deck appeared to have been, too hot to enable parties to proceed further with unloading, and she was towed a safe distance down the river, and then scuttled by the captain and sunk. The next day after the sinking of the boat, the plaintiff notified an agent of the company at Glens Falls, who visited the place of the loss, and from that time forward up to the time of the action considerable correspondence between the parties occurred.
Two questions are mainly urged as reasons why the judgment should be reversed, and a new trial granted: (1) That th’e evidence was sufficient to warrant a finding that the loss was caused by one of the perils insured against, and that the defendant had no valid defense to the claim; (2) that the evidence was sufficient to authorize a finding that the defendant had waived all defense to the plaintiff’s claim, and was estopped from denying liability. The learned judge at the trial disposed of the case upon the first proposition, as matter of law, in effect holding that the loss was not occasioned by any of the matters against which the defendant’s policy insured, but, on the contrary, was occasioned by reason of causes excepted in the. policy, and for which the defendant would not be liable. This action being upon the policy, before the plaintiff could recover he must show that the loss fell within some of the causes embraced within the terms of the risks assumed
The exceptions were loss from incompetency of the master, or insufficiency of the crew, from want of ordinary care and skill in loading and stowing cargo of said vessel, from rottenness or inherent defects and other unseaworthiness, from theft, barratry, and robbery, from the bursting or explosion of a boiler, collapsing of flues, or breaking of machinery, unless occasioned by unavoidable external cause, or fire ensuing therefrom. These are the only ■excepted causes of injury to the vessel which could possibly have any relevancy to this case. The first is as to the incompetency of the master, or insufficiency of the crew. No point seems to have been made upon the trial of deficiency in either of these respects; but, if there were objections upon these points, the evidence was sufficient to present a question of fact to be submitted to the jury. The evidence showed how long the master had acted in that capacity, and how long he had been engaged in boating on the canal, also what the usual and proper crew was for this kind of service, and the number -of hands employed; and we think that evidence was sufficient to raise a question of fact for the jury, and the court could not properly pass upon them as questions of law, without first finding the fact. The second exception in the policy was for rottenness, inherent defects, and other unseaworthiness. Was this loss so directly traceable to defects coming within this exception as to authorize the trial judge to treat it as a question of law arising upon an undisputed state of facts, or was the evidence upon this point of such a character as to raise questions of fact to be passed upon by the jury? On the part of the respondent, it is insisted that the fact of the burning of the vessel by tlie ■slacking of lime furnishes.incontrovertible evidence of her leaky and unseaworthy condition, and that therefore the cause of the loss was defects against which there was no insurance, and as to which there was an express exception in the policy; while on the part of the appellants, it is claimed that the ■evidence is full and complete that this was a very stiff boat, which had been used about seven years, was thoroughly repaired and well, and always kept so, and was perfectly tight, ;ind seaworthy at the time of the loss. The contention on this point on either side seems to have the support of some evidence, upon which a disputed question of fact is raised, proper for the consideration of the jury. There is no pretense that the third exception in the policy existed in this case, that of “theft, barratry, or robbery.” Was the loss indisputably traceable to this exception, “from gangways and openings through the decks or sides being improperly secured or protected?” Wethink, under the evidence, that question should have been answered by the verdict •of the jury, and not disposed of as a question of law by the court. There is some evidence of the manner in which the hatchways were closed and covered by canvas, and with that evidence in the case which bore upon this question, it should have been submitted to the jury. The same may be said ■of the manner of loading, and the care and skill in loading and stowing the cargo in the vessel. There was some evidence as to the manner in which it was done, that the lime in the barrels in the hold rested upon a floor six inches from the bottom of the boat, and that the barrels were not exposed to water while being loaded, but were rolled on skids from the railroad car to the deck of the boat. It was quite true, as the learned judge remarked, that the permission to carry lime was accompanied with the implied condition
This view of the case renders it unnecessary for us to examine the other points raised and litigated on the trial, as to whether the defendant, by its. conduct in reference to the insured property after the loss, is estopped from denying the liability. The judgment is reversed, and a new trial ordered, with costs to abide the event. All concur.