279 Mo. 500 | Mo. | 1919
This cause was instituted in the Circuit Court for the City of St. Louis, March 10, 1914. The petition, after alleging the corporate character of the plaintiff and defendant surety company, proceeds as follow^:
“And plaintiff for cause of action states that heretofore, to-wit, on the 27th day of October, 1913, de
“That said bond or writing obligatory was, however, subject to certain conditions thereunder written, to the effect that whereas contemporaneously with the execution and delivery thereof, said Edward Nowland, Jr., the principal, had entered into a contract and charter-party with plaintiff, the obligee in said bond, for the use said obligee’s steamer, Shiloh (a copy of which contract and charter-party was and is annexed to said bond or writing obligatory and by reference made a part thereof as fully and effectually as if therein set forth in words and figures), therefore if said principal, defendant Nowland, should and would from time to time and at all times fully do, keep, observe and perform all of the things, stipulations, agreements, provisions, undertakings and conditions by him in the said contract and charter-party agreed to be done, observed, kept and performed, and should and would pay all of the rentals in said contract and charter-party mentioned and referred to, as and when the same should become due and payable, and should and would keep and protect the said steamer Shiloh, and plaintiff as its owner, from all claims and demands of every kind, character and description, whether for repairs made, supplies furnished, wages earned or other demands upon or against said steamer or plaintiff as her owner, and should and would keep, save harmless and protect said steamer and plaintiff, as owner thereof, of and from all attorneys’ fees and other expenses, and should and would at his, said defendant Nowland’s expense,
“And plaintiff states that there have been breaches of said bond or writing obligatory, and as such breaches thereof this plaintiff assigns the following, to-wit:
“First. That upon the execution of said bond or writing, to-wit, on the 29th day of October, 1913, plaintiff delivered to said defendant Nowland, at Paducah, Kentucky, the said steamer Shiloh, and defendant received the same from plaintiff on said day and at said place, and the rent agreed to he paid by said defendant for the use of said steamer began to accrue on said day at the rate of $22.50 per day, payable to plaintiff, in accordance with the terms of the contract or charter-party aforesaid, on the first and fifteenth days of each month thereafter. That said defendant has failed and refused to pay unto this plaintiff the rent accruing, from and including December 1, 1913', to and including December 15, 1913, fifteen days, at $22.50 per day, amounting to $337.50, although payment thereof has been frequently demanded.
“Second. That the said defendant Nowland, being-in charge of said steamer Shiloh on, to-wit, December 15, 1913, under the contract and charter-party hereinbefore mentioned, sank and lost said steamer or boat and has disabled himself from returning her to this plaintiff and has so announced to this plaintiff. That said defendant therefore has made it impossible for himself
“And plaintiff states that the said steamer Shiloh, at the time she was so sunk and lost by defendant Now-land, was reasonably worth the sum and value of $12,000, and is fully lost to this plaintiff.
“Wherefore, plaintiff prays judgment against defendants for $10,000, the penalty of the bond or writing obligatory aforesaid, together -with interest and costs.”
The answer, omitting introduction and prayer, is as follows:
“Defendants admit that plaintiff is, and was at the times mentioned in the petition, a corporation organized and existing under the laws of the State of Missouri; that defendant United States Fidelity & Guaranty Company is, and was at the times mentioned in the petition, a corporation organized and existing under the laws of the State of Maryland and doing business and maintaining an office in said City of St. Louis; that defendant Edward Nowland, Jr., is indebted to plaintiff in the sum of $367.50 on account of rental for the steamer Shiloh up to and including December 15, 1913, but defendants say that long before the institution of this suit, and when said rental became due, defendant Nowland tendered to plaintiff said sum of $337.50 and now tenders in court said sum in discharge of the rental due under the charter-party or contract mentioned in the petition.
“For other and further answer, defendants deny each and every allegation in said petition and in each count thereof contained, except such as are herein-before expressly admitted.
“For other and further answer to said petition, and especially to the second county thereof, defendants state that said steamer Shiloh, which was rented by
The plaintiff replied by general denial. When the trial was called the defendant, having theretofore tendered $337.50 to plaintiff, deposited it in court. The plaintiff then introduced the bond sued on and the contract or charter-party therein mentioned and proved the total loss of the vessel by sinking at the dock at Memphis, Tennessee, at midnight December 14-15, 1913, and rested. It offered no evidence of the cause of the disaster.
The defendants thereupon asked the court to instruct the jury to find for them, which was refused by
“Said party of the first part agrees to pay the cost of marine insurance on said steamer during said period of five months, or during the continuance of this charter-party, if, by reason of ice, as hereinafter mentioned, the same shall continue longer than five months, which marine insurance shall be to the amount of nine thousand dollars.”
That “upon the expiration of said period, the party of the second part shall return said steamer to the party of the first part, at Paducah,'aforesaid, in as good order and condition, as when received by him, excepting only such usual wear as is incident to the trade.
“The party of the second part agrees that said steamer shall be operated by him as a freight and passenger packet in regular trade between Memphis, Tennessee, and Henrico, Arkansas; but said party of the second part may, if he shall so desire, extend such trade as far up the river as Cairo, or as far down the river as New Orleans, providing such steamer shall be covered by proper and adequate insurance.”
It was also provided that the steamboat should be operated with a full crew of competent men and that the lessee should comply with all the laws of the United States relating to said steamer and her certificates of inspection and command her at all times when possible, and give his personal skill and judgment towards seeing-' that she was well and properly cared for, to the same extent as if she were his own property, and give bond with good security for the fulfilment of the said charter-party in all particulars and respects; and pay all ob
“Said party of the first part assumes all risks and liability to said steamer which is covered by marine and fire insurance policies upon her; also any extraordinary breakage of shafts, cylinders or machinery; also the consequences of accidental explosion or burning; but in case of loss by sinking or burning, whether such loss be total or partial, but sufficient, if partial, to render said steamer unfit for service at the time, said party of the second part shall remain with and protect said steamer to the fullest extent possible, immediately notifying said party of the first part and giving said party of the first part, or its agents or representatives, sufficient and ample time to reach the steamer and to take possession of her. In the event' of any damages to said boat, rendering it unfit for service, for which party of the first part would be responsible, such as partial loss or damage by fire or sinking, the amount to be paid under this contract is to cease with the closing of the day of such accident or loss and is to continue during the period for making repairs, which repairs, party of the first part agrees to make as promptly as possible. ... In the event of the total loss of the steamer, the charter money, or rental, shall cease on the day of such loss.”
The next paragraph provides in substance that the party of the second part shall keep the steamer in as good order and condition as when received by him, ordinary wear of the trade only excepted, subject to conditions in the preceding paragraph.
An option is given in the instrument to purchase the property at $9000, with a credit of all rentals paid
It was also shown and admitted that about January 21, 1914, the plaintiff made to these three insurance companies the following offer in writing:
“We are willing to borrow from you the sum of $7500 and to give you our written obligation that in compliance with the provisions of the policy subrogating you to any security which we may have for the loss of the boat outside of the insurance, we will institute in our name an appropriate suit or action at law against Ed Nowland, Jr., and the United States Fidelity & Guaranty Company, surety on his bond, to recover thereon for the amount due us from Nowland for the hire of the boat, any amounts for which we may be liable for supplies furnished it and for the value of the boat itself. Should we succeed in recovering judgment and collecting thereon, we will, after first retaining the amount due us for hire and the amount for which we may be liable for supplies, repay to you the said sum of $7500, without interest, or such proportion thereof as the recovery will warrant, but in the event there should be no recovery and collection, then we shall not be liable to return any of the $7500 borrowed nor be liable for its repayment. . . .
“Please advise us whether this settlement and method of compromising your liability is satisfactory. If it is, the $7500 must be paid within two weeks from this date; otherwise the adjustment is off.”
This offer was accepted and the $7500 paid plaintiff on the terms expressed.
Defendants introduced the protest of the master (Nowland) and other officers and members of the crew of the Shiloh, made at the time of the accident, against objection and exception duly made by the plaintiff. They also introduced evidence tending to show that the steamer sank at the Memphis wharf at the time of the completion of a trip from the South, without fault of the defendant or the other officers, or the crew, and that it had not been overladen. On the other hand plaintiff introduced testimony that the sinking was due to carelessness and overloading.
At the close of all the evidence the defenants again asked’an instruction in the nature of a demurrer to the evidence, which was refused. The court then gave a number of instructions at the request of plaintiff and defendants respectively. Among those given for the defendants are the following, upon which error is assigned in this appeal:
“5. If you find from the evidence that the Shiloh sank through one of the perils covered by the insurance upon her so that plaintiff was entitled to collect said insurance of the insurance companies, and if you find that the amount of said insurance was equal to or greater than the value of said steamer, then the plain
“9. In order to avoid liability for the sinking of the steamer Shiloh, the defendants are not required to show definitely and certainly what caused the sinking of said steamer. •
“To the giving of which instructions for defendants, and each of them, plaintiff then and there duly excepted at the time and still excepts.”
The court then of its own motion gave the following instruction, to the giving of which plaintiff duly excepted at the time.
“10. The court instructs the jury that the burden of proof is on the plaintiff to establish by the preponderance or greater weight of the evidence the facts necessary to.a verdict in his favor under these instructions.
“By the terms ‘burden of proof’ and ‘preponderance of the evidence,’ the court intends no reference to the number of witnesses testifying concerning any fact, or upon any issue in the, case, but simply uses those terms by way of briefly expressing the rule of law, which is that unless the evidence (as to such issue) appears in your judgment to preponderate, in respect to its credibility, in favor of the party to this action on whom the burden of proof (as to such issue) rests, then you should find against such party on said issue.”
The motion for a new trial does not mention this instruction. The cause was submitted to the juryy, which returned a verdict for plaintiff for $337.50, the amount of rental due and unpaid, upon which judgment was entered. After an unsuccessful motion on the part of plaintiff for new trial it took this appeal.
There are certain .questions relating to the admission of evidence to which reference will be made in the opinion.
I. This' is a suit to recover $10,000, the amount of the penalty of a bond executed by the defendants to the plaintiff, conditioned for the performance of the terms of a contract technically called a charter-party, by which the Mississippi River steamer Shiloh was chartered by plaintiff to deféndant Nowland for ^ months, to be returned to the plaintiff upon certain conditions and subject to- certain contingencies to which we will presently refer. The condition of the bond was set out in the petition, and by its terms referred to the charter-party, which was thereto annexed and made a part thereof. By it the plaintiff expressly assumed'all risks and liability covered by marine and fire insurance polices upon her. At that time three policies of insurance were in force insuring the plaintiff against loss of the steamer by sinking unless “caused by gross negligence, recklessness, or willful misconduct of the owner, master, officers or crew,” or from “being unduly ladened.” While said policies were all in force, and on the 15th day of December, 1913, the steamer was lost by sinking at the dock in Memphis, Tennessee.
A proof of said loss, which we shall have further occasion to notice, was thereupon made by the plaintiff against the respective underwriters in the three insurance policies, and thereafter the plaintiff made a proposition in writing to each of them to the effect that they should loan plaintiff $7500, for which it would subrogate them to any security plaintiff might have for the loss of the boat outside the insurance and that it would institute in its name a suit against the defendants on this bond for the value of the boat with unpaid rentals. If successful it would repay the said $7500 without interest, otherwise it would retain the same, the said underwriters to pay seventy-five per cent of the expenses of the suit. The underwriters were also authorized to select such counsel as they might deem proper for the institution and prosecution of the suit or if they desired it would direct its own counsel to look
We have made this condensed statement of the pleadings and undisputed facts involved in this appeal that we may have well in mind the parties interested in and to be bound by the result of the suit, as well as the narrow issues involved.
It will be seen from the preceding paragraph that this suit was instituted, and is prosecuted and maintained, by the plaintiff, for the use and benefit of the three insurance companies, as well as for itself. They are interested in its result to the extent of $7500. If the plaintiff recovers for the loss of the boat, they get it back to the extent of the loan and plaintiff gets the remainder. The amount sued for being ten thousand dollars, the penalty of the bond, they divide the expense exactly in proportion to the interest of each.
To the extent of the interest of the underwriters the issue is clearly defined. It is whether or not the loss of the Shiloh comes within the terms of the policies by which they have obligated themselves to pay for the loss of the boat by sinking, unless such loss was caused by gross negligence, recklessness, or willful misconduct of the owner, master, officers or crew of the vessel or from its being overladened. In the absence of tnese excepted causes they can be entitled to nothing. The plaintiff, having expressly assumed in the charter-party all losses covered by the insurance, is also entitled to nothing, so that the issue as to all is precisely the same; that is to say, whether the loss is covered by the policies. Being reduced to still narrower limits by the terms of the bond, including the charter-party which is a part and
II. The first error of which the appellant complains is the giving to the jury by the court of its own motion, of instruction number ten. Whatever diffixnight attend the determination of this question has been obviated in the failure of the appellant to notice it in the motion for a new trial. This precludes its examination here.
III. The plaintiff also complains because the court gave at the request of defendant an instruction numbered nine which told the jury that “in order to avoid liability for the sinking of the steamer Shiloh, the defendants are not required to show definitely and certainly what caused the sinking of said steamer.” It says that this was equivalent to instructing the jury that the burden was upon the plaintiff tó show that the sinking of the vessel was caused hy gross negligence of the officers or crew or over-lading. Without expressing any opinion upon the question whether this construction, if couched in plain, simple and unmistakable words, would or would not be error, we are of the opinion that it is suceptible of no such construction. If the evidence showed to the entire satisfaction of the jury that the vessel was, at
IV. The appellant predicates error upon the action of the court in permitting Captain Nowland to testify, in substance, that the officers and crew selected by him as captain of the Shiloh to assist in the navigation of the vessel were careful and competent and S°°d reputation in their .nautical calling. This objection seems to be founded oh a misapprehension as to the real office of this testimony under the pleadings in this case. Nowland was not only the owner of the vessel for the time being for all purposes connected with its navigation, but was its master charged with the employment of officers and crew. He was charged with gross negligence and mismanagement with respect to these duties. In short, the appellant vigorously insists that the burden is upon him to exonerate himself from this charge. Had he knowingly placed his vessel at the mercy of incompetent or reckless officers or crew without professional character or reputation and its loss had resulted therefrom, it is evident that the insurance companies could have availed
Y. Perhaps the most important question in this case is raised upon assignment of error in the admission in evidence on behalf of the defendants of the protest of the master and crew of the Shiloh.
The marine protest is ancient in its origin and stands upon solid ground with respect to its useful purpose. It is made for the benefit of the owners of the ship and those interested in its cargo as as ^s °fficers and crew, and contains a statement under oath of master officers and men alike of all the circumstances of the voyage leading up to the particular accident, as well as of the accident itself, and gets its name from a statement of the notary that he protests in behalf of all against the winds, waves and perils of seas and rivers as the cause of the disaster. It will be seen that this statement, with its wealth of detail, is an important element in determining the cause of the disaster, especially to insurance companies, so that its incorporation into the proof of loss has become a universal caution if not a rule of law.
In this case the protest was incorporated in the proof of loss furnished by plaintiff to the three insur
VI. The appellant complains that counsel for respondent were permitted to make improper statements to the jury in argument. We have searched for these in the record, and find that objections were made and exceptions saved to statements indicating the interest of the insurance companies in the issue on trial. We have already referred to that interest for the purpose of showing that these companies are not only interested in the result of this case, but are substantially parties to its prosecution. This being true and the facts being fully before the jury we see no reason why they should not be referred to by counsel. We do not think the remarks of counsel as shown in the record are reversible error.
Finding no reversible error in the record we affirm the judgment of the circuit court.
The foregoing opinion of Brown, C., is adopted as the opinion of the court;
