[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 300 The plaintiffs do not assert that the loss was occasioned by any of the perils insured against except fire. The defendant insists that the fire was caused by some part of the lime being put on board during a rain storm, and that the defendant is exempt from liability under the clause which provides that it shall not be liable in case the loss arises "from want of ordinary care and skill in loading and stowing the cargo of said vessel."
The captain of the boat and his son, who placed the cargo on board, testified that the lime was not wet while it was being transferred from the cars to the boat, that the hatches were carefully closed and the barrels on deck were well protected by canvas. No evidence was given which tended to contradict the positive testimony of the captain and his son. Under this state of the proof, the Circuit Court could not properly nonsuit the plaintiffs on the ground that the boat was improperly laden. It is also insisted by the defendant that if the lime was dry and in good order when taken on board, it must have been wet by means of a leak while the boat was on its trip from Green Island to Albany, and that, therefore, the boat must have been unseaworthy, as no storm was encountered and no accident happened during the trip. The undisputed testimony shows that the boat was built in 1880 or 1881, had been kept in good repair and was thoroughly overhauled and repaired late in the summer before the loss. No witness testified to the existence of defects in the boat, and there is no evidence of unseaworthiness unless, as the defendant contends, they are inferrible from the slacking of the lime. In support of the defendant's contention, we are referred to VanWickle v. Mechanics Tr. Ins. Co. (16 J. S. 95; aff.97 N.Y. 350) and to Berwind v. Greenwich Ins. Co. (114 id. 231). In both of these cases it was held at Circuit that the boats were unseaworthy when they left their ports. The reports of Van *Page 303 Wickle's case do not agree as to the circumstances attending the loss. The Superior Court said that the boat sank at its dock after a voyage occupying about forty-eight hours, in fine weather and on a smooth sea, having encountered no sea peril.
In the Court of Appeals it was said that within twenty-four hours after the boat began its voyage, it was found abandoned by its master, soon went down, and that it had not encountered any sea peril on the voyage. In Berwind's case the boat was being towed from South Amboy, N.J., to New York city, and when a few hours out it sank in a smooth sea, without having met with any accident or sea peril. In both cases the plaintiffs failed to show that the loss was caused by any peril insured against. Those boats were lost by leaks large enough to sink them in a smooth sea, and in fine weather a few hours after leaving port. In both cases it was well held that it was shown that they were unseaworthy when the voyages began. But in the case at bar, there is no evidence that the slacking of the lime was caused by a leak in the boat of sufficient size to cause it to be unseaworthy, or that it was caused by any leak.
When the boat was tested after it was discovered to be on fire, but one inch of water was found. No attempt was made to show what care the lime had received before it was delivered from the cars, and some of it may have been sufficiently wet to cause it to begin to slack before it was loaded. We do not think the evidence justified the Circuit in holding that the slacking was caused by a leak of sufficient size to make the boat unseaworthy.
Was there a fire on board the boat which caused its loss? InN.Y. B.D. Express Co. v. Traders' M. Ins. Co. (132 Mass. 377), there was an insurance against loss by fire on goods which were being transported by a steamboat which came in collision with another boat, causing a fire; the boat was sunk before the goods insured were injured by fire, and this was held to be a loss covered by the policy. In City Fire Ins. Co. v. Corlies (21 Wend. 367), there was an insurance on goods against loss by fire. The building in which they were kept *Page 304 was by the direction of the city authorities blown up to prevent the spread of a conflagration. It was found as a fact that the building would have been burned had it not been destroyed; the goods insured were destroyed by the explosion, and it was held that the insurer was liable for the loss.
In the case at bar it clearly appears that the boat would have been destroyed by fire had it not been sunk. After it was sunk it was found that the sides of the boat looked as wood does after it has been "afire, kind of black, charred like, and the barrels all swelled up." A witness who examined the boat about the middle of June with Mr. Owen the defendant's agent, testified: "At the time Mr. Owen and I looked into the boat we found pieces of barrel like, and found several pieces of heads of barrels that were burned into charcoal like." This evidence which was uncontradicted, clearly shows that ignition or combustion had begun before the boat was sunk. This taken in connection with the evidences of fire which were discovered before the boat was sunk, the smoke issuing from the hold, with the deck so hot that the pitch oozed from its seams, makes it reasonably certain that a fire had broken out in the vessel before it was sunk, and which was the proximate cause of the loss. As was well said inScripture v. Lowell Mutual F. Ins. Co. (64 Mass. 356-359), "It may well happen that serious damage within the scope of a fire policy shall be done to a building or to its contents, by the action of fire in scorching paint, cracking pictures, glass, furniture, mantel-pieces and other objects, or heating and thus actually destroying many objects of commerce, and yet all this without actual ignition; that is, visible inflammation."
In this case the charred wood renders it reasonably certain that there was actual burning by flame, or at least it was not so certain that there was no fire that the Circuit was authorized to so decide as a matter of law. (May Ins. § 402.) The Circuit clearly erred in holding that the evidence of burning was insufficient to justify the submission of the question to the jury. *Page 305
Was the evidence sufficient to warrant the jury in finding that the plaintiffs abandoned the boat as a total loss and that the defendant accepted of the abandonment.
On May 9, 1887, the day but one after the loss, Mr. Little, the agent who issued the policy, was notified of the accident and on the same day examined the wreck. May tenth, the captain of the boat verified a statement of the circumstances of the loss and gave it to the defendant's agent, who May eleventh, mailed it, with a full statement of his own of the condition of the wreck, to the defendant. These statements were received on the next day and were retained. In June Mr. Little received a letter from Mr. Owen, defendant's adjuster, in which he stated that he had examined the wreck, and that he would return to Albany in a few days and "pick her up;" the information contained in this letter was communicated to plaintiffs. The term "pick her up" was testified by the witnesses to mean, to raise the boat. July 11, 1887, the plaintiffs verified formal proofs of loss and executed an assignment to the defendant of all of their interest in the boat which were delivered to and retained by the insurer. September 5, 1887, the captain, at the defendant's request, verified and delivered to it a further detailed statement of the loss. There is no evidence that the defendant did not authorize Little to act as its agent in this matter, but on the contrary it appears that they paid the expenses which he incurred in the examination of the wreck. Under this state of the proofs it was error for the Circuit to hold, as a matter of law, that the boat had not been abandoned by the plaintiffs, and that the defendant had not accepted of the abandonment.
The order should be affirmed and judgment absolute rendered against the appellant with costs.
All concur, except LANDON, J., not sitting.
Order affirmed and judgment accordingly. *Page 306