41 N.Y.S. 901 | N.Y. App. Div. | 1896
Lead Opinion
This action was upon a time policy of insurance, whereby the defendant insured the steamer Queen of the Pacific from the 9th day of August, 1887, to the 9th day of August, 1888. The language of the policy is very broad, and generally is against “ all other perils, losses and misfortunes that have or shall come to the hurt, detriment or damage of the said ship, etc., or any part thereof.” It appeared from the evidence that this steamer, being in good order and apparently properly manned and equipped, sailed on April 29, 1888, at two o’clock in the afternoon, from San Francisco for San Diego, Cal. When the ship sailed there was an ordinary west and northwest wind, and a chopped sea with a full sail breeze for a ship. Everything went on well until sometime between two and half-past two o’clock the next morning, April thirtieth, when one of the officers of the ship discovered water coming in from the starboard alleyway. The officers of the ship attempted to stop the leak without success. The vessel was run ashore, where she sank.. She was subsequently raised, when it was found that an after port hole in the starboard alleyway was open ; that there were no other holes or breaks in the hull of the vessel, and that the water which caused the vessel to sink must have got in through this open port hole. The evidence is clear that the vessel was properly constructed, the deadlights ample for the purpose; and that, but for the fact that one of the deadlights was open, the vessel was in a perfectly seaworthy condition both at the. time of the issuing of the policy and from the time she sailed from San Francisco to the time of the sinking. There is, it is true, a claim by the defendant that in consequence of some error in the construction of the vessel, the water getting into this alleyway was unable to reach a portion of the vessel from which it could be taken up by pumps ; and testimony was given by a person who described himself as a “ surveyor for
Counsel for the defendant claims that such a finding would be against the weight of evidence, because there was no possible way by which this port hole could have been opened after the vessel sailed if it was securely fastened before. We have the positive testimony, however, of an uncontradicted witness that he closed the port holes and securely fastened them. It is impossible to state just who entered this alleyway after the officer of the ship fastened the port hole. We have a fact testified to under oath that the port holes were closed and securely fastened before the vessel left San Francisco, and in the face of that testimony it would have been error for the court to hold that the jury were not authorized to believe it and base their verdict upon it because the court could not see how the port holes could subsequently become open if the testimony was true.
Considering the charge as a whole, we do not think that that question was clearly submitted to the jury in such a way as to obviate the error in granting the plaintiff’s request to charge that the defendant must prove unseaworthiness by reason of the willful fraud of the owner, and that there must be a new trial.
The judgment appealed from is, therefore, reversed, and a new-trial ordered, with costs to the appellant to abide the event.
Van Brunt, P. J., Patterson and O’Brien, JJ., concurred.
Concurrence Opinion
The action was brought upon a marine insurance policy issued by the defendant. The policy was issued August 8, 1887. The vessel sailed from San Francisco for San Diego April 29,1888, and on the following day, April 30, 1888, began taking water and soon after sank, near Port Harford, Cal., in twenty-five feet of water. It was subsequently discovered that the water entered the vessel through, one of the deadlights in the starboard alleyway, and that the hull of the vessel was uninjured. There was no opening from this alleyway into which the water entered to permit the water to reach the vessel’s pumps so that it could be removed and the sinking of the vessel prevented.
The defendant claims, however, that in view of the conceded facts in the case, and the charge of the court, the verdict cannot be sustained ; that there was no question of fact for the jury, and a verdict should have been ordered for the defendant.
The court charged the following propositions : If the deadlight was ojien when the vessel sailed, she was not seaworthy. If the deadlight ivas not sufficiently strong to resist ordinary pressure of the sea in fair weather without opening, she was not seaworthy. If the ship was so constructed that water enough could come in through the deadlight to sink the vessel, because the water could not get to the pumps, she was not seaworthy. That there was no evidence of the fact, and the jury were not authorized to presume, that there had been any willful opening of the deadlight with intent to cause the vessel to leak, after the deadlight had been fastened and before the sinking of the vessel. That there was no question in the case under the pleadings and evidence of barratry of the master or mariners. And then the court submitted to the jury, under the rules it laid down and upon the evidence in the case, the question whether the vessel was seaworthy when she sailed, telling the jury that if they found she was seaworthy when she sailed, their verdict should be for the plaintiff; if she was not, their verdict should be for the defendant.
These Avere the latest suggestions in the charge to the jury and must liaAe expressed correctly the vieAvs of the court. Under such a charge the verdict certainly cannot be sustained upon the evt
The jury, by the first request, having been told they must assume that the vessel was seaworthy when the policy was issued, August 8, 1887, the court by the third request instructed them that the burden •of proof was on the defendant, and it must prove that she subsequently became unseaworthy by reason of the willful fraud of the owner or assured, otherwise the plaintiff was entitled to a verdict. The vessel did not sail upon the voyage during which the loss occurred until April 29, 1888, more than seven months after the issue of the policy. If the defendant proved the vessel unseaworthy, at the time she sailed on this voyage, it was not necessary to prove that such unseaworthiness was a result of the willful fraud of the owner or assured. If the charge had been made assuming seaworthiness at the time the vessel sailed, instead of at the time the policy was issued, it would have been correct as an abstract proposition. As it was, it was entirely erroneous and may well have misled the jury in render, ing their verdict.
In view of the facts in this case and' the charge of the court it was equivalent to saying, the deadlight being closed when the policy was issued, even though it was open when the vessel sailed, still, unless it was so by reason of willful fraud of the owner or assured, plaintiff can still recover. Again, the charge of the court already referred to, that if the ship was so constructed that water enough could come through the deadlight to sink the vessel, because the water could not get to the pumps, she was unseaworthy, would seem to have precluded a recovery by the plaintiff.
That the vessel was so constructed and in such condition when she sailed, and that the loss resulted from a failure of the water to get to the pumps, is undisputed. And there was expert evidence to sustain the proposition thus advanced by the court as to such a condition or construction constituting unseaworthiness.
We do not think that this verdict should be permitted to stand. Eairness and justice require that jurors should meet the questions
It is apparent, from the most casual reading of the evidence and the charge in this case, that the jury in rendering this verdict acted upon some improper instruction by the court, or suspicion or speculation or imagination arising in their minds. They could not have decided that the vessel was seaworthy when she sailed, which was really the only question submitted to them.
We arrive at the conclusion that the verdict was not supported by the evidence; that there were errors in the charge that must have misled the jury, and that the judgment entered upon the verdict should, therefore, be reversed and a new trial ordered, with costs to abide event.
Judgment reversed, new trial ordered, costs to appellant to abide event.