
    The Washington Mutual Insurance Company v. George M. Reed and Wilson N. Brown.
    Injury to a flat-boat by the waves raised'by a steamboat, is one of the perils insured against in any ordinary policy of insurance, although the steam, boat was an ordinary steamboat, and the swell raised by her an ordinary one.
    The insuror does not insure against certain loss, such as must inevitably happen to all boats, as wear and tear, and the like; but insures against accidents such as may, or are likely to happen.
    The question whether the external force that produced the injury was great or'small, may be important as an item of evidence, in determining whether the vessel was seaworthy or not; but if the force causing the injury fall within the class of perils insured against, if the vessel be seaworthy, it matters not whether it be great or small, the insurer will be liable.
    Error to the Supreme Court of Hamilton county.
    The original action was assumpsit, in the commercial court of Cincinnati. Beed and Brown, the plaintiffs below, declared specially, on a policy of insurance effected by the defendant below, the insurance company, on 750 barrels of whisky, to be shipped in a No. 1 flat-boat, from Lawrenceburg, Indiana, to New Orleans.
    The declaration avers that while the policy was in force, said boat, “by a peril of the river, grounded, and became and was fast upon a bar . in the bed . of the river, whereby, and by reason *of the beating of the waves against said flat-boat, the same sprung a leak, whereby . . the said 750 barrels of whisky on board said boat, the property of plaintiffs, became and were wholly lost.”
    The declaration avers notice to defendant, demand and refusal of payment, etc. The declaration also contained the common counts. Plea, general issue.
    On the trial in the court below, the plaintiffs gave in evidence the policy of insurance declared on ; proved that they owned the whisky, and its delivery on board the boat June 26, 1817. The bill of exceptions taken on trial then states : “ The plaintiffs also gave in evidence the depositions of John F. Oreakbaum (and others by name), and also the papers and documents attached to the said depositions, including the statement of general average made by A. Brother.” The bill then states that “ the defendant objected to the paper marked ‘No. 1 General Average’ as not competent evidence.” The objection was overruled, and exception taken.
    The depositions of Creakbaum (and other persons named in the bill) are copied in the record of this case sent up with the writ of error.
    Creakbaum’s deposition proves that the flat-boat left Lawf-enceburg for New Orleans, laden with the whisky insured, at the proper time, covered by the policy ; that the boat and cargo were in good condition ; that on the voyage the flat-boat met the steamboat John Dronnan, at the foot of Longberry bar. “In going out of the deep water on the shoal water, the John Dren nan caused a heavy swell. When wo wont into those shoals the boat shook considerably, and the John Drennan came so near that I could have jumped aboard of her. . . Alter we struck the swells we struck them very fair with our bow, so as not to strain the boat; and when the midship of the boat came onto the heavy swells the flat-boat cracked—made a noise like something breaking. I started a man to each pump, but they found no water. I run on, then, some twenty minutes ; tried the pumps, and found the water flush; . . examined the boat; *found the water running in about midship: found the water run in at the splice of the gunwales. The flat-boat met the steamboat just after dark. Wo run on until eleven o’clock at night, and struck ; then had eighteen inches water on the false floor.” Finally the flat-boat was landed at Louisville, with nearly two feet of water on the false floor. The injury to the cargo, and loss, wore proved by the depositions. The parties in the court below having submitted their evidence, the jury returned a verdict for the defendant below, and judgment was entered. During the trial the plaintiffs excepted to the charge of the court to the jury, and submitted a motion 'for a new trial, which was overruled.
    The cause was removed to the Supreme Court of Hamilton county, and the judgment was reversed for error in the charge of the court below.
    This is a writ of error to reverse the judgment of the Supreme Court of Hamilton county.
    The charge of the court below to the jury, claimed to be correct by plaintiff in error, and erroneous by defendants in error, is stated in the opinion of the court, with the other facts necessary to understand the decision.
    
      The policy of insurance, as far as material to a correct understanding of the decision of this court, is as follows:
    “ The Washington Mutual Insurance Company of Cincinnati, by this policy, do cause to bo insured, lost or not lost, Wilson N. Brown, in the sum of $82.50, on 750 barrels whisky, on a No. 1 flat-boat, “Yorktown, No. 1,” from Lawrcnceburg, Indiana, to Now Orleans, in charge of Mr. Creak.baum, pilot, with the privilege of lying at Freeport, or Lafayette, thirty days (but no coasting privilege), and twelve days at Now Orleans, being for account of whom it may concern, and in case of loss payable to Joseph Leech & Co., . . . whereof-is master for tho present voyage, or whoever else may go for master, beginning the adventure upon said property from and after tho lading thereof on board said boat, and continuinguntil safely landed at theportof destination. . . . *“ Touching the perils which the said insurance company are content to bear, and take npon themselves in the promises, they are of the seas, rivers, fires, jettisons, enemies, pirates, and overpowering thieves (but not other thieves). Provided, that the insurers shall not be liable except in cases of general average for loss or damage on said property, unless it amounts to five per cent, on the whole sum at risk, etc. . . .
    “ And it is agreed that the insurers shall not bo liable for damage to goods by wet or dampness, or by being spotted or discolored, moldy or rusty, unless the same be directly caused by some disaster of the vessel, and proof thereof furnished.” .... etc., dated July 5, 1847. ■
    Coeein & Mitchell, for plaintiff in error:
    I. It will be perceived that the record in this case does not contain one word of the testimony which was offered upon the subject of the cause of the loss. The depositions on file are not referred to in such a way as to make them part of the bill of exceptions.
    Whether the plaintiffs offered any, and if any, what evidence, tending to proye the issue, does not appear. There is nothing to show the relevancy of any instructions on the subject of swells in tho river produced by steamboats; and it is clear that this court will not reverse the judgments of inferior courts for errors as to abstract questions of law.
    To determine whether a court has given erroneous instructions, the evidence upon the point must be set out in the bill of exceptions. Gale v. Pearson, 6 Miss. 253; Hamilton v. Moore, 4 Watts & S. 570 ; Cawthorn v. Muldron, 8 Miss. 617; Mason v. Campbell, 2 Pike, 506 ; Trott v. West, 10 Yerg. 499; Wilkinson v. Gilmore, 2 Humph. 140; Ib. 494; Samuel v. Withers, 9 Miss. 166; Frazer v. Yeatman, 10 Miss. 501.
    The Supremo Court will not reverse the judgment, unless the bill,oi'exceptions shows that the error complained of was *material. Stephens v. State, 14 Ohio, 386 ; Watson v. Brown, 14 Ohio, 473.
    And the facts must show, affirmatively, the error complained of. Coil v. Willis, 18 Ohio, 28; Wagers v. Dickey, 17 Ohio, 440; Cressenger v. Lessee of Welch, 15 Ohio, 156 ; 16 Ohio, 518.
    And where a bill of exceptions refers to certain instruments of writing, as being marked with certain letters of the alphabet, but the writings themselves are not incorporated into the bill of exceptions, the court will not notice them, even though similar instruments are inserted in the record. Pickett v. Doe, 5 Smedes & M. 470 ; Hicks v. Pearson, 19 Ohio, 446.
    II. We claim that the commercial court did not err in the-charge given. .3 Kent, 300; Paddock v. Franklin Ins. Co., 11 Pick. 235 ; 2 Sumn. 202, 571; 1 Phil. on Ins. 625 ; Barnwell v. Church, 1 Caine, 234; 2 Johns. 127 ; 8 Pet. 557; 2 Johns. 128, 129.
    The assured assumes the common and ordinary perils to which vessels are necessarily exposed in the voyage insured; hence he warrants to the underwriter that the vessel is every way fitted to overcome these perils. Then comes the underwriter and says, that being so, I will underwrite against the extraordinary perils.
    By the implied warranty of seaworthiness, “ is meant that she shall be in a fit state, as to repairs, and in all other respects, to encounter the ordinary perils of the voyage insured 1 Arn. on Ins. 652; Parke, B., in Dixon v. Sadler, 5 M. & W. 414.
    It is sufficient, on a question of seaworthiness, if the vessel was fit to perform the voyage insured as to ordinary perils; the underwriters are bound as to extraordinary perils. Watson v. Ins. Co. N. A., 2 Wash. C. C. 480.
    III. It is, perhaps, unnecessary, but we advert to one or two other points:
    1. The charge of the court upon the question of seaworthiness was correct. 2 Greenl. on Ev. see. 500; 3 Kent, *205, n.; 1 Johns. Cases, 304 ; 2 Ib. 231, and note; 3 Mass. 485; 1 Arn. on Ins. 652, 653; Park, 8 ed. 568.
    
      2. If the vessel was not seaworthy, the plaintiffs below claimed, that they should have had a verdict for the premium.
    The insurance was upon the cargo “ from the time of loading,” and the policy attached to the cargo as soon as it was on board. A vessel may have a latent defect, yet if the cargo is put on board, and tho policy is on the cargo from the time of lading, the policy •attaches, and there shall be no return of premium, though the unseaworthiness defeat the action for a loss subsequent to the sailing of the vessel. Taylor v. Sewell, 3 Mass. 331, 343; Mutual Ins. Co. v. Clapp, 11 Pick. 56, 64, 65. See also 1 Phil. 448; 2 Phil. 526, 527, 538 ; 8 Johns. 1; 3 Cranch, 357; Cond. U. S. 561-565.
    Even if the policy did not attach, tho court would not reverse a judgment because the jury did not give tho plaintiffs a verdict for the return of the premium where tho plaintiffs did not ask for such a verdict. Pcnnoman v. Tucker, 11 Mass. 66 ; Penson v. Lee, 2 B. & P. 330; Clark v. Mutual Ins. Co., 2 W & M. 472, 494.
    Fox & French, for defendants in error :
    An important question in tho cause arises out of the charge of the court, in the following words, given at the request of defendant below:
    “ That the defendant was not liable for losses arising from the common and ordinary perils, to which boats are necessarily exposed, in navigating to New Orleans ; and that if the jury were of opinion that the loss in this case arose from an ordinary swell in the river, produced by the passage of an ordinary steamboat by the flat-boat, while on her course in the river, then it was not a loss by a peril within the policy.”
    This charge can not be sustained. The substance of tho charge is, that if the loss was occasioned by an ordinary swell of an ordinary steamboat, no recovery could be had.
    ^Suppose an ordinary steamboat comes so near to a flatboat that the swell she ordinarily creates has the effect to sink the boat, is tho owner of the flat-boat insured not entitled to recover in such a case? If not, then the right to recover does not depend upon the contract or policy, but depends altogether upon the question, whether an ordinary steamboat produces an ordinary swell ■only, without reference to tho question whether that ordinary swell was produced near to or at a distance from the flat-boat.
    Again, the charge is erroneous on another ground. It assumes that an insurance company is not liable for losses arising from the common and ordinary perils to which, flat-boats are necessarily exposed in navigating to Now Orleans. This strikes a death-blow to all policies of insurance.
    But it was claimed that because the boat was injured by the wave of the Drennan, therefore she, the flat-boat, could not have been seaworthy. There was no evidence offered by the defendants to prove that the vessel was not seaworthy.
    When a boat meets with a disaster that is apparently sufficient to produce the injury complained of, .we deny that the jui’y have a right to draw the conclusion in the absence of all other testimony, that the loss was occasioned by unseaworthinoss, instead of being the result of the resistance met with. 1 Marsh. on Ins. 465, a; 4 Mason, 442.
    Again, the loss was occasioned by a springing of a leak, caused by the breaking of the gunwales. We suppose this, in analogy to the springing of a leak at sea, even without any apparent cause, is a peril of the river. Patrick v. Hallet & Brown, 1 Johns. 241 ; Talcot v. Commercial Ins. Co. 2 Johns. 127; 2 Johns. 467; 1 Binn. 600; 1 Johns. 248; 2 Sumn. 197; 2 Wash. C. C. 480; 1 Condy’s Marshall, 165 ; 1 Johns. 241; 2 Johns. 129, 467; 1 Phil. on Ins. 635, 315, 312; 4 Mason, 442 ; 6 Cow. 270.
    It is universally admitted, that if the policy never attached) the insured has a right to a return of premium, and such ought to have been the verdict in this case. But the judge precluded *the verdict from being so rendered, because he charged that if the boat was unseaworthy, the jury must render a verdict for the defendant. This was clearly erroneous. 2 Bos. & Pul. 333; 2 Woodb. & Minot, 494, 495 ; 4 Whart. 67; 4 Mason, 442; 13 Mees. & Welsb. 392; 1 Phil. on Ins. 326; 1 Caine, 302.
   Caldwell, J.

This is a writ of error to the Supreme Court of Hamilton county. The error complained of is that the Supreme Court erred in reversing a judgment of the commercial court of Cincinnati, rendered in this cause, tried in that court, in which Heed and Brown were plaintiffs, and the insurance company was defendant. Th.e suit was brought by Reed and Brown, on a policy of insurance, against the company, for damages to a flat-boat load of whisky, insured at and from Lawrenceburg, Indiana, to New Orleans, by river. The jury found a verdict for defendant below (the insurance company) on which judgment was entered. E'eed and Brown prosecuted a writ of error to the Supreme Court. The Supremo Court reversed the judgment of the commercial court, on the following ground, as stated in the record of reversal: “Because the court below, at the request of the defendants, charged the jury that if they were of the opinion, that the loss declared on by the plaintiff arose from an ordinary swell in the river, produced by the passage of an ordinary steamboat, by the flat-boat, while on her course in the river, then it was not a loss by a peril within the policy, and the plaintiff could not recover, whereas the court ought not so to have charged.” It is said, on the part of the plaintiff in error, that the Supreme Court erred in reversing the judgment of the common pleas: 1. Because the bill of exceptions did not show that the charge of the commercial court was material in the trial of the cause ; *and in the second place, if material, the charge was good law. In the first place, then, does the bill of exceptions show that the charge was material upon the questions in controv'ersy between the parties? The bill of exceptions refers to the depositions of certain persons, by name, as being read in evidence; in terms those depositions are not made part of the bill of exceptions, nor does it refer to them by letter, number, or other term of designation. The depositions, however, are made a part of the record in the case; are all certified up by the clerk—the evidence appears from the record to have been before the Supreme Court without any objection. We find, then, these depositions certified -up with the record, agreeing with'the description given of them in the bill of exceptions, and are bound to consider them as the same there referred to, and as being made a part of the record ; if they are not properly made a part of the record, certified up, the plaintiffs in error should have had the record corrected in the Supreme Court. If, then, we take this evidence, the materiality of the charge becomes clearly manifest. But the charge was asked by the counsel for the plaintiff in error ; and in the absence of testimony going to show the materiality of the charge asked by them, we would suppose that it would not be treating the opinion and conduct of counsel with too much respect, to presume that what they asked was material in the ease, and therefore proper to be asked, when that presumption could not injuriously affect the interest of the other party.

Besides, the charge given was directly in reference to the contract of insurance; it was a definition of the legal rights and liabilities of the parties under the policy of insurance-—a matter that could scarcely fail to bo material in the matter in controversy.

We think, therefore, we are bound to consider the charge given by the commercial court as a matter material for the consideration of the jury.

This leads us to the next and main question in the case, whether the charge of the commercial court was law. The ^charge has been substantially given above. It was, that the insurance company was not liable for the losses arising from the common and ordinary perils to which boats are necessarily exposed in navigating to New Orleans, and that if the jury were of the opinion that the loss in this case arose from an ordinary swell in the river, produced by-the passage of an ordinary steamboat, by the fiat-boat, while in her course in the river, then it was not a loss by á peril within the policy, and the plaintiff could not recover. In 1 Phillips on Insurance, 635, it is said: “Under perils of the sea, which constitute a part of the risks in almost every marine policy, are comprehended those of the winds, waves, lightning, rocks, shoals, running foul of other vessels, and, in general, all causes of loss and damage to the property insured arising from the elements, and inevitable accidents, other than those of capture and detentions.” In this case, it appears from the evidence that at the time the flat-boat sprung the leak, the steamboat John Drennan waa passing her, so close that a person could have jumped from one boat to the other; that the steamboat John Drennan, in passing out of the deep into the shoal water, made a very heavy swell ; and that when the flat-boat struck the swell, about midship, the boat cracked, as if something was breaking; that in a short time the water was coming into the boat faster than it could be pumped out, and that on examination it was found that the splicing of the gunwales had given way, etc.

Now, injury arising from the action of the waves is one of the perils insured against, and we do not see, in reason, the difference between a wave raised by the wind and one raised by a steamboat. Nor have we been able to ..find that any such distinction has ever been held to exist. Nor do we think that any such discrimination as appears to bo presupposed by tho terms “ ordinary swells ” and “ ordinary steamboats ” exists. Whether the gale was a severe one, or whether it was moderate; whether it produced heavy swells, or only those that were moderately so, is not important in determining whether the insurer is liable or not; it is only necessary, to fix his liability, *that the waves should have caused the injury. Whether the steamboat was very large, or only ordinary, whether the swell was extraordinary or not, is not the question ; but the question is, did the swell cause the damage to the boat? We see no more reason in making the liability of the insurance company depend on whether the boat was an ordinary one, and the swell an ordinary one, or whether they were both extraordinary, than there would be in making its liability depend on whether the snag against which the boat run was an ordinary or extraordinary one. Now, if the steamboat had run against this boat, and run her under, there is no question but such collision would have been a peril within the policy; and wo are unable to see any difference, in principle, between running a boat under by directly striking her yntk another boat, or by running so close to her as to cause tho waves to sink or break her. The boat causing the injury would bo equally liable in the one case as in tho other, and so would the insurance company.

But it is said that the peril arising from the waves of steamboats is one of the ordinary perils to which ñat-boats are subjected, and when it is not of an extraordinary character, it is not one of the perils insured against. The time has been, within the recollection of many, when danger to a flat-boat, from the waves of a steamboat, on our waters, would have been a rare occurrence— when it would have been an extraordinary peril; but we do not suppose that the fact that the number of steamboats has so increased that it has become an ordinary peril, has altered the law of insurance.

The flat-boat, although not so highly appreciated as a means of transportation as formerly, has lost none of her legal rights; they must still be extended to her, if for no other reason, for the good she has done. Counsel for plaintiff in error have cited us to a number of authorities, in which it is said that the insurers are not liable for ordinary perils, but only for such as are of an extraordinary kind. I have been able to find no specific definition of what perils are to be considered ordinary and what extraordinary, in the sense in which these terms are used in this connection. The term ordinary peril,” is not used as of ^similar meaning with common or frequent peril, or peril likely to be encountered ; nor does it have any relation, so far as I have been able to discover, to how great or how small the force may be that is brought to bear, or is encountered. The term, I think, is used rather in contradistinction to accident. The insurer does not become liable for inherent defects in the thing insured; he does not insure against wear and tear—such things as all vessels must necessarily be subjected to; does not insure against certain loss, but insures against accidents.

The question how great the force was that produced the injury, may be an important item of evidence, going to show seaworthiness or the reverse, or the like; but if the force produces the injury on a seaworthy vessel, the insurer is liable, if the peril belong to the class insured against, although such force may have been ever so small. The case that gives the most color to the distinction that plaintiff’s counsel have drawn between ordinary and extraordinary perils, is the case of Hazard’s Adm’r v. The New England Insurance Company, 8 Pet. 557. In that case the court say, that the policy does not cover ordinary perils, but extraordinary ones, and yet we think it falls far short of sustaining their position. In that case, the judge, on the circuit, had charged “ that if the jury should find, that in the Pacific ocean, worms ordinarily assail and enter the bottom of vessels, then the loss of a vessel destroyed by worms would not be a loss within the policy.” The Supreme Court sustained this charge. They based their decisions principally on the case of Rohl v. Parr, 1 Espinasse. Judge McLean, however, remarks in delivering the opinion of the court: “ If worms ordinarily perforate every vessel which sails in a certain sea, is not a risk of injury from them as common to every vessel which sails on that sea as the ordinary wear and decay of a vessel on other seas? The progress of the injury may be far more rapid in the one case than in the other; but do they not both arise from causes peculiar to the different seas, and which affect, in the same way, all vessels that enter into them ??? This case, I think, clearly keeps up, *and is based

on, the distinction between injuries that must necessarily occur, and accidents that may or are likely to occur. If all vessels that sail in the Pacific ocean must necessarily be perforated with worms, it could not be an accident that the particular vessel in question was perforated by them.

We think the commercial court erred in their charge to the jury, and that the Supreme Court decided correctly in reversing their judgment.

The judgment of the Supremo Court will therefore be affirmed. 
      
       See Hicks v. Pierson, 19 Ohio, 426; and see Bank of Virginia v. Bank of Chillicothe, 16 Ohio, 170; Acheson v. Sutliff, 18 Ohio, 122; and as to bills of exceptions generally, see Wilcox’s Dig. 44, and Snp. 16, and Coil v. Willis, 18 Ohio, 28; Bascom v. Parish, 18 Ohio, 268.
     