UNION INS. CO. V. SMITH, 124 U. S. 405 (1888)

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U.S. Supreme Court

Union Ins. Co. v. Smith, 124 U.S. 405 (1888)

Union Insurance Company v. Smith

Submitted January 6, 1888

Decided January 30, 1888

124 U.S. 405


A time policy of marine insurance on a steam tug to be employed on the Lakes, insured her against the perils of the Lakes, excepting perils

"consequent upon and arising from or caused by . . . incompetency of the master . . . or want of ordinary care and skill in navigating said vessel, rottenness, inherent defects, . . . and all other unseaworthiness."

While towing vessels in Lake Huron in July, her shaft was broken, causing a leak at her stern. The leak was so far stopped that by moderate pumping she was kept free from water. She was taken in tow and carried by fort Huron and Detroit and into Lake Erie on a destination to Cleveland, where she belonged and her owner lived. She sprang a leak in Lake Erie and sank, and was abandoned to the insurer. On the trial of a suit on the policy, it was claimed by the defendant that the accident made the vessel unseaworthy, and the failure to repair her at Port Huron or Detroit avoided the policy. The court charged the jury that if an ordinarily prudent master would have deemed it necessary to repair her before proceeding, and if her loss was occasioned by the omission to do so, the plaintiff was not entitled to recover, but if, from the character of the injury and the leak, a master of competent judgment might

Page 124 U. S. 406

reasonably have supposed, in the exercise of ordinary care, that she was seaworthy to be towed to Cleveland, and therefore omitted to repair her, such omission was no bar to a recovery. Held that there was no error in the charge.

Expert testimony as to whether, under the circumstances, it was the exercise of good seamanship and prudence to attempt to have the vessel towed to Cleveland was competent.

The question of the competency of the particular witnesses to testify as experts considered.

The weight of the evidence of each witness was a question for the jury in view of the testimony of each as to his experience.

It was not improper to refuse to allow the defendant to ask a witness what talk he had with the master of the tug after she was taken in tow, in regard to the leak, or what should be done, it not being stated what it was proposed to prove and it not appearing that the statement of the master ought to be regarded as part of the res gestae.

A motion by the defendant at the close of the plaintiff's testimony to take the case from the jury was properly refused because it was a motion for a peremptory nonsuit against the will of the plaintiff, and it was waived by the introduction by the defendant of testimony in the further progress of the case.

A general exception to a refusal to charge a series of propositions as a whole is bad if any one of the series is objectionable.

The defendant having set up in its answer that the loss was occasioned by want of ordinary care in managing the tug at the time she sprang a leak in Lake Erie, and having attempted to prove such defense, it was not error to charge the jury that such want of ordinary care must be shown by a fair preponderance of proof on the part of the defendant.

This was an action upon a policy of marine insurance. Judgment for plaintiff. Defendant sued out this writ of error. The case is stated in the opinion of the Court.

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