Starbuck v. Phenix Insurance

Williams, J. (concurring):

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.

As the case was tried and submitted to the jury, the verdict of the jury was made-to depend upon the seaworthiness of the vessel at the time she sailed, as affected by the open deadlight. There seems to have been no storm or bad weather to affect the vessel or the deadlight. The real questions were, whether the deadlight was closed and secured when the vessel sailed, and if it was, how it came to be open afterwards. There was no dispute but that it was the duty of the owner to have the vessel in a seaworthy condition when she sailed, and if this duty was not performed, and the loss occurred by reason of the failure to perform such duty, there could be no recovery. It was also agreed that the burden of proof upon this issue of fact was, in this case, upon the defendant, the policy being a time policy. (Berwind v. Greenwich Ins. Co., 114 N. Y. 234.)

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 deuce in the case. The jury could not under these instructions find that the deadlight was opened by any one intentionally after the vessel sailed. It must have been left open or improperly secured at the time she sailed, or her condition must have been such at the time she sailed that the deadlight was forced open by the ordinary pressure of the sea in fair weather. And in either of these cases the vessel was, under the instruction of the court, unseaworthy when she sailed. The defendant asked the court to charge that the open deadlight must be accounted for in one of these two ways, but the court refused to so charge. The court must have had in mind, in refusing this request, an idea suggested in the requests made in behalf of plaintiff and charged by the court, which, although indefinite and uncertain in the language used and more or less obscure, evidently were designed to convey the idea that a recovery by the plaintiff would not be defeated by a finding that the vessel became unseaworthy after she sailed and before she sank (that is, during the voyage), as the result of the negligence of the master or crew, in the absence of willful fraud upon the part of the owner or assured, and of such fraud there was no evidence. Under the evidence, however, we are unable to see liow it could be presumed (certainly there was no proof of the fact) that, even if when the vessel sailed the deadlight was properly closed or secured, and was strong enough to resist the ordinary pressure of the sea in fair weather, yet, through some carelessness or negligence of the master or crew thereafter, the deadlight was opened and left open. The evidence is quite conclusive and undisputed that the doors of the alleyway were closed up and secured before the vessel sailed, and were not opened again until the vessel had sunk. What carelessness the master or crew could have been guilty of after the vessel sailed, under this evidence, it is difficult to imagine. Ho suggestion on this subject was made by the court to the jury, and none is made by counsel uq>on this appeal. Jurors should not be left to speculate and draw upon their imagination. They should be required to act upon the evidence. There was no evidence in the case to authorize them to find the deadlight came open during the voyage as the result of any negligence on the part of the master or crew after they sailed. As already suggested, the question submitted to the jury was clearly as to the seaworthiness at the time the vessel sailed, and under the •charge and upon the evidence there was no basis for the jury to find the vessel was seaworthy when she sailed, but became unseaworthy thereafter as a result of the negligence of the master or crew. But, beyond this, at least one request was submitted by the plaintiff and charged, which was clearly erroneous and cannot be so construed as to avoid such error..

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 submitted to them and determine them upon the evidence, and obey the, instructions of the court as to the law.

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.