Rosenheim v. America Insurance

Dryden, Judge, delivered the opinion of the court. This was an action on a marine policy of insurance. By the terms of the contract the defendant [appellant] was to insure the goods of the plaintiffs, shipped, or to be shipped, from New Orleans to St. Louis on good steamboats, the shipments being reported to the defendant and endorsed on the policy. The defendant relied upon two grounds of defence: 1. That, at the time of application for the insurance, the [234] plaintiffs concealed from the defendant facts material to the risk; and, 2. That at the time of the application the steamboat on which the shipment was made was unseaworthy. A trial was had, resulting in a verdict and judgment for the plaintiffs, and the Common Pleas refusing to set the verdict aside, the defendant has appealed to this court. The evidence on the trial disclosed the following facts : On the 13th of March, 1857, Collins, one of the plaintiffs, shipped, at the port of New Orleans, on the steamer Belfast, bound for Memphis, a stock of goods of the plaintiffs, destined for St. Louis. On the same day the Belfast set out on her voyage, Collins being a passenger. On the 17th of March, one hundred and fifty miles below Memphis, the boat ran aground; and still remaining so on the 18th, Collins and most of the other passengers took passage on the Kennett for Memphis, where they arrived on the 19th, when Collins sent the following telegram to his partner in St. Louis: “Memphis, March 19, 1857. — To Rosenheim & Collins:' Insure seven thousand dollars from New Orleans to Memphis. Martin Collins.” The dispatch was received by Rosenheim the same day, and he immediately went to the office of the defendant and had the following endorsement made on the policy, viz: “ March 19th. — From New Orleans to Memphis. Mdze.— amount $7,000. Rate J — premium $35.” So far as appears from the evidence, both Rosenheim and the defendant were ignorant of the grounding of the boat. Before Collins left, the officers of the Belfast caused a part of the cargo — railroad iron, not being the property of the plaintiffs — to be thrown overboard. Collins knew this fact. At the time the boat grounded the river was falling rapidly. A day or two after the Kennett passed up, the Belfast, still aground, was discovered leaking. Afterwards that part of her cargo not lost was resliipped and the boat became a [235] wreck. The plaintiffs’ goods became damaged, resulting from the grounding of the Belfast. In the depositions of the captain, clerk and mate of the Belfast, read by the plaintiffs, they severally stated that at the time the Kennett left no damage to the Belfast or her cargo was apprehended by either the officers or crew. To these statements the defendant objected, but the objection was overruled and exception was taken. The defendant then offered to read from the deposition of Captain Bowen, of the Kennett, an experienced river man, so much of it as expressed the opinion of the witness as to the degree of danger the Belfast was in when passed by the Kennett on the 18th. The plaintiffs objected to the competency of the evidence, and the objection was sustained, and the defendant excepted. The court, of its own motion, instructed the jury on the question of the concealment of material facts, and, on motion of the defendant, gave two instructions on the question of unseaworthiness, but refused two other instructions asked by the defendant, and the defendant excepted. The questions presented by the record for our consideration concern the admission and rejection of testimony and the giving and refusal of instructions. 1. As to the testimony objected to of the officers of the Belfast: The objection urged in this court for its rejection is, that the evidence is not the statement of any fact, but the expression of the opinion of the witnesses, and therefore incompetent. Neither this nor any other specific ground of objection was stated at the trial, and we will therefore not stop to inquire whether the evidence is subject to the objection or not. When a party seriously objects to the evidence offered by his adversary, common fairness requires him to disclose the ground for its exclusion at the time it is offered, and if he fail to do so he cannot complain that the disclosure in the appellate court will be unavailing. 2. As to the testimony of Captain Bowen, which was excluded : The defendant endeavored to show that the Belfast, [236] at the time Collins left her, was in imminent danger of breaking in two, and becoming, with her cargo, a total loss, and for this purpose, instead of laying before the jury the facts from which they could find the existence of such peril, the defendant sought to establish it by the opinion of a witness of experience in the navigation of the river. It does not appear that any question of science or skill was involved in the case; no question which a jury of practical men could not solve by a view of the facts themselves, unaided by the opinions of experts. The evidence was, therefore, incompetent and properly rejected. 3. It is the duty of the assured, when he makes application for insurance, to disclose to the underwriter every fact within his knowledge, which, if known to the insurer, would naturally cause the latter either to charge a higher rate of premium or to refuse the risk altogether; and if he fail to make such disclosure, it will avoid the policy. In every case, the question whether the fact concealed is such as would thus influence the conduct of the underwriter, if known to him, is a question for the jury, and not for the court, to determine. In the case under consideration, the defendant insists the grounding of the vessel was a material fact known to the plaintiffs and not known to the defendant. That the fact was known to the plaintiffs and unknown to the defendant was scarcely controverted ; but its materiality— that is, whether, if the grounding had been known to the defendant, it would have caused it to decline the risk; or to charge a higher rate of premium — was contested. The court, in the instruction given of its own motion to the jury, expressed the law, as applicable to this branch of the defence, with great precision and clearness; and the jury having-found the issue for the plaintiffs, we have no sufficient warrant for disturbing the finding. 4. In every contract of marine insurance it is said there is an implied warranty, on the part of the assured, of the seaworthiness, at the time of the risk, of the vessel insured, or [237] on which the thing insured is to be transported, which, if broken, avoids the policy. It was argued at the bar with great force by the learned counsel of the defendant, that, at the time the insurance was effected in this case, the boat upon which the goods were being transported being hard aground and powerless to relieve herself by any means at her command, she was unseaworthy, and that it was the duty of the court to declare her unseaworthy as a matter of law. It may be true, as argued, that if the vessel was in the condition supposed, she was unseaworthy, and that if the facts were agreed or so found, the court would, as a matter of law, declare hér unseaworthy ; but it seems to have been forgotten that the very question in dispute was as to the condition of the boat, a question of fact which must, in the nature of things, be settled before the judgment of the law can be pronounced. ''Unseaworthiness, like the materiality of a fact concealed, is a question of fact for the jury. The two instructions given to the jury at the instance of the defendant, sustain this view, and in this respect are tenable. They are, however, both objectionable in omitting to inform the jury what facts would constitute unseaworthiness ; but, as they were given as asked by the defendant, (and of course no exception,) and as the defect was to the prejudice of the plaintiffs and not the defendant, there is no ground of complaint. The court properly refused the two remaining instructions asked by the defendant. The first assumes that the throwing overboard of a part of the cargo, if known to the plaintiffs, would avoid the policy without regard to the question whether the vessel or cargo was in danger, or whether the jettisoning was successful, or whether the defendant had notice. The second was no better. Both were manifestly wrong. Let the judgment of the court below be affirmed; the other judges concur.