74 F.2d 539 | 5th Cir. | 1935
This was an action by the appellant on a policy of insurance issued by the appellee for the alleged value of 6,957 bunches of bananas the loss of which was alleged to have been occasioned directly and proximately by perils insured against by said policy, to wit, “hurricanes and/or floods, and/or accidents to the conveyance.” The allegations of appellant’s petition as to the loss of the bananas having been due to. perils insured against were put in issue by the appellee. The evidence introduced in the trial consisted of the insurance policy sued on and a stipulation of counsel which admitted as follows:
“First. Counsel for defendant admits that railway bridges and portions of track constituting the approaches to said bridges at or near points known as Kilometer 178-A, 253-A and 414-A on the line of the Pan-*540 American Railroad of the National Railways of Mexico in the State of Chiapas, Mexico, over which line said bananas were in course of transportation, were washed out or rendered impassable to rail traffic by excessive rain waters on or about October 13, 1932, after said bananas had been loaded and their transportation had commenced; that, as a result thereof, the train transporting said bananas was delayed between two of these railroad bridges, and as a result of said delay the bananas described in plaintiff’s petition rotted and became a total loss.
“Second. Counsel for plaintiff admits that no hurricane occurred as alleged in its petition, that none of the rivers mentioned in its petition is navigable and that the loss of the bananas described in its petition was not caused by hurricanes or floods within the meaning of the insurance policy on which this suit is brought.”
Upon the conclusion of the evidence, each of the parties requested the court to instruct a verdict in its favor. The request of the appellee was granted, and the request of the appellant was denied.
The contract sued on was embodied in a printed form of insurance policy and riders attached thereto. Some provisions of the printed form of policy are found in the margins thereof. The policy as a whole covered shipments of bananas consigned to the assured or to others for account of the assured “at and from interior points in Mexico via Puerto Mexico to United States Gulf ports.” A typewritten rider contained the following:
“This insurance to attach from time of being loaded onto railroad cars in the interi- or during the ordinary course of transit until on board the ocean going vessel and to continue until discharged from the vessel at destination named herein. Including risk on dock or in railroad cars on dock at New Orleans, La., for a period of not exceeding three (3) days or (?) held covered.
“This policy covers while on docks, wharves or elsewhere on shore and/or during land transportation only against the risks of collision, derailment, fire, cyclones, hurricanes, earthquakes, flood (meaning rising navigable waters) or any accident to the conveyance and/or collapse and/or' subsidence of docks and to pay loss or damage caused thereby, even though the insurance be otherwise F. P. A.”
A printed provision contained in the margin of the printed form of policy used reads as follows: “It is understood and agreed that where this policy attaches on goods on railroad cars, the risks of fire, derailment and collision only are covered, and that where this policy attaches on goods while on any other land conveyance or while on docks, wharves or elsewhere on shore, the risks of fire and flood (meaning rising navigable waters) only are covered.”
A result of the stipulation of counsel was that under the evidence the appellant’s right to any recovery was dependent upon the cause of the loss of, or damage to, the bananas being “any accident to the conveyance,” within the meaning of that language as used in the policy. The occurrence shown by the stipulation of the parties did not include “any accident to the conveyance” if the word “conveyance,” as used in the quoted provision, has the meaning ordinarily expressed by that word. Webster’s International Dictionary-defines the noun “conveyance” as follows: “The instrument or means of carrying or transporting anything, now especially persons or passengers, from place to place; a vehicle; a carriage.” A definition of that word found in the Century Dictionary follows: “That by which anything is carried or borne along; any instrument of transportation from one place to another; specifically, a carriage or coach; a vehicle of any kind.” In behalf of the appellant, it was contended that the conveyance contemplated by the policy, from interi- or points in Mexico to the port of ocean loading, was a railroad and none other; that, in respect of a railroad as a conveyance, all the elements of a railroad — locomotives, cars, tracks, and bridges, — are essential parts of the conveyance, without any of which there could be no conveyance, and that “any accident to the conveyance” covers an accident to any essential part of the railroad ; that the conveyance contemplated being a railroad, an accident to the railroad’s tracks or bridges was an “accident to the conveyance” within the meaning of the policy; and in this connection counsel for appellant invoked the rule that, the policy of insurance being the writing of the insurer, any uncertainty or ambiguity in its terms is to be construed against the insurer. A principal basis of the stated contention is the above set out “beginning of the adventure” clause of the policy. It was argued that the language of that clause shows that, while the bananas were on land, they were not intended to be insured except while they were on railroad cars. The first sentence
I f the parties to the contract had intended the insurance of the bananas to cover, in addition to the risk of derailment, collision, and other named risks, also risks of accidents, not only to the car or cars on which the bananas were loaded, but to rail
We conclude that the evidence did not show that the loss of the bananas was due to a risk insured against, and that the court did not err in ruling to that effect.
The judgment-is affirmed.