Craig v. Continental Insurance Company

This is an action at law, brought by Thomas Craig, administrator of the estate of John Carbry, deceased, against the Continental Insurance Company of New York, a New York insurance corporation, and three other insurance corporations, to recover, under a statute of Michigan, (2 How. Ann. St. Mich. §§ 8313, 8314,) $25,000, as damages for the death of Carbry, for the benefit of his mother and his three minor sisters, as next of kin and distributees of his estate, it being alleged that he lost his life through negligence of the defendants, in December, 1883. It was commenced in the superior court of the city of Detroit, Mich., and was removed by the defendants into the circuit court of the United States for the eastern district of Michigan.

The defendants were insurers against marine risks of a steam-propeller called the 'Enterprise.' While on a voyage on the lakes she was stranded, November 20, 1883, on rocks at Green island, in the northern part of Lake Huron. She had on board a cargo of merchandise, and a crew of 10 or 12 men. After the stranding, her owners a bandoned her to the insurers, and she became the property of the latter. The general agent of the Continental Insurance Company for the lake region was Mr. Dimock, of Buffalo, N. Y., who was also a member of the firm of Crosby & Dimock, of that place, who were general agents for several other companies. James J. Reardon, of Buffalo, was employed by Crosby & Dimock as a marine inspector. Among his other duties was that of going, when notified, to the assistance of wrecked and stranded vessels insured by companies represented by Crosby & Dimock, and getting them to a port of safety. On November 29, 1883, Reardon was notified by Crosby & Dimock in regard to the Enterprise, and went with a steam-tug called the 'Balize,' with steam-pumps and engineers, to the assistance of the Enterprise. One of the steam-pumps was in charge of Carbry. Soon after their arriving at the place where the Enterprise was, her crew being still on board of her, and in charge of her, the steam-pumps were set up, and she was pumped out and pulled off from the place where she had stranded. This was done under the supervision of Reardon. She was more or less injured by the stranding, but when she was got off she was towed into deep water, and, although she leaked, she was kept free by the use of one pump for about 66 hours,-from 10 o'clock Thursday morning until 4 o'clock the following Sunday morning. Part of her cargo had been removed, but it was replaced. Her machinery was disabled, and it was necessary that the Balize should take her in tow, to remove her to a port where she could be repaired. She started in to astern of the Balize, bound for Detroit, at 4 o'clock on Sunday morning, December 9, 1883, with her cargo on board, and a crew of 13 men, including 4 who were in charge of 2 steam-pumps, one of which was under the care of Carbry. Her mate was in command of her. Reardon was on board of the Balize. No trouble was experienced in the navigation of the Enterprise until 2 o'clock on the morning of the next day-22 hours after she had started; and then, while off Point aux Barques and Saginaw bay, she filled and sank, and became a total loss, and Carbry lost his life. He was 22 years of age. The declaration alleged that his life was lost through the negligence of the defendants, in particulars which it specified.

The defendants having, in the state court, separately demanded a trial of the matters set forth in the declaration, the action was, after its removal, tried in the circuit court of the United States, before the district judge, Judge BROWN, (now of this court,) and a jury; and, under the instruction of the court, a verdict was rendered in favor of the three defendants other than the Continental Insurance Company. The trial proceeded against the latter company, and resulted in a verdict against it for $8,000. On motion, and in February, 1886, the verdict was set aside, and a new trial was granted. The opinion of the court on the motion, delivered by Judge BROWN, is reported in 26 Fed. Rep. 798. The ground assigned for granting the motion was that the liability of the defendant, if any, was destroyed, because it was subject to the provisions of section 4283, Rev. St. U.S., and the Enterprise was totally lost during the voyage on which the death occurred. A judgment was then entered in favor of the three defendants other than the Continental Insurance Company. The new trial was had before Judge BROWN and a jury in March, 1886. There is a bill of exceptions, which states that the court instructed the jury to render a verdict in favor of the defendant, which was done. The plaintiff excepted to the instruction of the court. The bill of exceptions contains all the evidence offered on both sides. A judgment in favor of the defendant was rendered in September, 1887, and the plaintiff has brought the case to this court by a writ of error. It is stated in the bill of exceptions that prior to the sending of the expedition under Reardon to rescue the Enterprise, she had been abandoned by her owners to the Continental Insurance Company, by which she was insured, and had become its property; and that, by reason of her being sunk at the time Carbry lost his life, she became and was a total loss.

Don M. Dickinson, for plaintiff in error.

[Argument of Counsel from pages 641-644 intentionally omitted]

F. H. Canfield, for defendant in error.

Mr. Justice BLATCHFORD delivered the opinion of the court.