
    James Singleton et al., Resp’ts, v. The Phenix Ins. Co., App’lt.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed April 19, 1892.)
    
    
      1. Insurance (Marine)—Eire caused by lime.
    Defendant insured a canal boat, with the privilege of carrying lime in barrels, against the usual peril of inland waters and also against fire. The boat was loaded at Troy and while in a tow at Albany was discovered to be on fire. Barrels of lime on deck were removed, when the deck was found to be so hot that further unloading ceased. The boat was then scuttled. The captain of the boat and his son testified that the lime was not wet when loaded; that the hatches were carefulty closed and the barrels on deck covered with canvas. The boat was built in 1881 and in good repair. Held, that a nonsuit was error and the court was not justified upon the evidence in holding that the slacking was caused by a leak making the boat unseaworthy.
    
      Ü. Same—Evidence op fire.
    One of the witnesses testified that they found several pieces or heads of barrels that “were burned into charcoal like.” Held, that this in connection with 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, which was the proximate cause of the loss.
    3. Same—Total loss—Abandonment.
    The proof was that on May 9, L., defendant’s agent, was notified of the loss and examined the wreck. May 10th the captain gave him a verified statement of the loss, and he mailed it to defendant on the 11th. In June, O., defendant’s adjuster, wrote to L. that he had examined the wreck and would in a few days “pick her up,” i. e., raise the boat. July 11, plaintiffs made proof of loss and assigned all their interest in the boat, which assignment wss delivered to and retained by defendant and in September the captain at defendant’s request verified and delivered a further detailed statement of loss. Held, that it was error for the court to hold, as a matter of law, that the boat had not been abandoned by the plaintiffs and that the defendant had not accepted the abandonment.
    
      Appeal from an order of the general term of the supreme court in the third judicial department, which reversed a judgment entered on an order which dismissed the complaint.
    August 2, 1886, the defendant insured the canal boat “ Mary V. Keenan ” for one year from that date under a Uniform Canal Hull Policy, valued for $1,200, against the “perils * * * of the inland lakes, rivers, canals' and fires that shall come to the-damage of the said vessel, or any part thereof. Excepting all perils, losses, * * * arising from want of ordinary care and. skill in loading and stowing the cargo of said vessel. From rottenness, inherent defects and other unseaworthiness. From gangways and openings through the deck or sides being improperly secured and protected.”
    The policy contained the privilege to carry lime in barrels. At about 8 o’clock A. M., bn Friday, May 6, 1887, the captain of the; boat and his son (who constituted the crew) began loading it with quick lime in barrels at Green Island, which is on the Hudson river and about six miles north of Albany. During that day the-hold of the vessel (except the forward hatch) was filled, the, hatches closed and one car load placed on deck.
    On the next day at about four o’clock in the afternoon the boat was.completely loaded. Nearly twenty-one hundred barrels were taken on board, about nine hundred being on deck. After the-loading was completed the boat was towed to Albany, where it arrived about six o’clock in the afternoon of Saturday, and was-placed in a tow to go down the river. Between seven and eight o’clock of the same evening the captain discovered smoke issuing from the hold in the boat, and on examination it was found that the lime was slacking and had engendered so much heat that the-deck was hot, the pitch boiling out of its seams and crackling sounds were heard in the hold. The boat was immediately towed' to a wharf near by and the lime on deck was hurriedly unloaded. The boat was then towed a short distance down the river and sunk in water about seventeen feet deep in order to prevent a total' loss by fire. It is conceded that there was no other way to prevent the total destruction of the boat by fire, for the hot slacking lime could not be removed, and the use of water in the open air would have accelerated chemical action instead of stopping or retarding it. The fire was extinguished when the boat was sunk.
    This action was brought November 1, 1887, to recover the sum for which the boat was insured. The defendant answered that the loss did not occur from any of the perils insured against, and that the lime was loaded in a rain storm and became saturated with water which caused the lime to slack and started the fire. No witnesses were sworn in behalf of the defendant, and at the-close of the plaintiffs’ evidence they were nonsuited, upon which a judgment was entered, and which was reversed by the general term.
    
      Richard L. Hand, for app’lt; L. M. Brown, for resp’ts.
    
      
       Affirming 32 St. Rep., 594.
    
   Follett, Ch. J.

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, a,nd 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 xepaired 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 inferrable from the slacking of the lime. In support of the defend.ant’s contention we are referred to Van Wickle v. Mechanics' & T. Ins. Co., 16 J. & S., 95; affirmed 97 N. Y., 350, and to Berwind v. Greenwich Ins. Co., 114 id., 231; 23 St. Rep., 93. In both ■ of these cases it was held at circuit that the boats were unseaworthy when they left their ports. The reports of Yan Wickle’s ease 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 un sea worthy.

Was there a fire on board the boat which caused its loss ? In N. Y. Express Co. v. Traders' 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 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 in Scripture 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.

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 hut one after the loss, Mr. Little, the agent who issued the policy, was notified of the accident, and on the same day examined tfie wreck. May 10th, the captain of the boat verified a statement of the circumstances of the loss and gave it to the defendant’s agent,, who, May 11th, 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 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 Land on, J., not sitting.  