Petrie v. . P. Ins. Co. , 132 N.Y. 137 ( 1892 )

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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The question which meets us at the threshold of this discussion is, was the evidence sufficient to justify the submission of the question, whether the defendant's agents approved of the application for this insurance? The authority of W.M. Onderdonk Co. to bind the defendant by indorsing in the book in any form their approval of the risk proposed is not denied. Six days before the entry in question the insured entered on the same book an application for insurance on the boat "Delia McKeever" for $2,500 on cement, New York harbor, which was approved by writing the word "harbor" in the column designated "Signature of Approval." The insured testified that other risks were approved by the entry of the word "harbor" in the approval column. A clerk of the insurance brokers, who was sworn in behalf of the defendant, testified that he wrote the word "harbor" opposite this application and the same word in the same book against other applications for insurance, and that it indicated an acceptance of the risk by insurers other than the defendant. The witness also testified that he never informed the insured that the word "harbor" indicated that the risk was not taken by defendant, but by some other company, and that the insured had no other open policy and book, except these issued by defendant. The assured testified that these brokers did all of his insurance, that he always applied for it in the same way, by entering the proposed risk in this book and sending it to the agents for their approval, who usually returned certificates of insurance executed by the defendant, and that he never had received any from any other company. This state of the evidence justified the court in submitting the question of the acceptance of the risk by the defendant to the jury and its verdict must be regarded as final upon this question.

Was the contract of insurance void because the duration of the risk was not fixed by time nor for a voyage between specified places? Ordinarily, marine contracts of insurance not specifying the duration of the risk either by time or by the places at which the voyage insured is to begin and end, is void for uncertainty. (Molloy Bk. 2 C. 17, § 14; 2 Par. Mar. L. 311; 1 Phil. Ins. § 918; 1 Arn. Mar. Ins. [6th ed.] 236; Manly v. United M. F.Ins. Co., 9 Mass. 85.)

The undisputed evidence is that during the season of 1887 the assured had been engaged in forwarding cargoes of Portland cement to the contractors engaged in extending the Croton water supply, which were delivered at various points in the upper part of the harbor of New York, on the Harlem river and at Tarrytown. It was the custom of the contractors to direct the assured to load five or six thousand barrels on boats, and subsequently designate the places at which they should be unloaded. That in such cases the place of destination could not be entered in the book, and that the words "from New York to harbor" indicates such shipments. The assured also testified that all of these cargoes had been insured through these agents by the defendant under the policy put in evidence and by entries on the book, made as in this instance. Under such a practice an insurance on a cargo to be delivered at some place in the same port would not be so indefinite and uncertain as to render the contract void, both parties understanding what was meant by the term. Did the loss occur in that harbor? It was competent to receive evidence as to the meaning, in the business of insurance, of the term "harbor of New York." (Nelson v. SunMutual Ins. Co., 71 N.Y. 453.) Upon this issue there was evidence that the term "harbor of New York," as used in the business of marine insurance, included Tarrytown and other points within the New York custom house district. Other witnesses testified that the harbor of New York did not extend above Spuyten Duyvil, and did not include Tarrytown. This question was submitted to the jury and found for the plaintiff. No available error is presented by the ruling on the question put to the witness Baker, because he was subsequently permitted to testify as to the meaning of the words "New York to harbor," and fully as to all facts called for by the question.

It is insisted that the loss was not within the perils insured against. The evidence is that the "Abel" was loaded at the Anglo-American stores, Brooklyn, N.Y., October 19, 1887, and left that place at 8 o'clock P.M. of that day in a tow bound for Tarrytown, where it arrived at 1 o'clock the next morning. The boat was moored alongside of the dock, and when the tide went out it grounded, and was so broken or strained that it sank and the cargo was destroyed. It was testified that the boat was seaworthy when laden, which evidence was not disputed. This case does not fall within the class of cases of which Berwind v. GreenwichIns. Co. (114 N.Y. 231) is a type. In that case the boat sprung a leak and sank without any known cause. It was held that this raised a presumption that it was unseaworthy, but that this presumption might have been rebutted by showing that the loss was occasioned by some other cause than the unseaworthiness of the boat. This was precisely what was done in this case.

Whether the defendant had waived the requirement in the policy, that formal proofs of loss should be furnished within thirty days and an action brought within twelve months after a loss, was submitted to the jury and was found for the plaintiff. No point is made by the learned counsel for the appellant that the evidence was insufficient to sustain the verdict on these issues.

But two exceptions were taken to the instructions given by the court, and neither of them was argued by the learned counsel for the appellant.

The judgment should be affirmed, with costs.

All concur.

Judgment affirmed.