Supreme Court of Canada
Providence Washington Ins. Co. v. Gerow (1888) 14 SCR 731
Date: 1888-03-17
Providence Washington Insurance Co. (Defendants)
Appellants
And
George W. Gerow (Plaintiff)
Respondent
1888: Feb. 28, 29; 1888: Mar. 17.
Present—Sir W. J. Ritchie C. J. and Strong, Fournier. Henry, Taschereau and Gwynne JJ.
ON APPEAL FROM THE SUPREME COURT OF NEW BRUNSWICK.
Marine Insurance—Description of voyage—Deviation—Question for jury—Misdirection—Waiver—Defective case—Application for the re-hearing of the judgment under.
A marine policy insured a ship for a voyage from Melbourne to Valparaiso for orders, thence to a loading port on the western coast of South America, and thence to a port of discharge in the United Kingdom. The ship went from Valparaiso to Lobos, an island from twenty-five to forty miles off the coast of South America and was afterwards lost. In an action on the policy.
Held, that whether or not Lobos was a loading port on the western coast of South America within the policy was a question for the jury, and it not having been submitted to them a new trial was ordered for misdirection.
After judgment application was made to vary or reverse the judgment on affidavits showing that the question was submitted and answered.
Held, that the application was too late, as the court had to determine the appeal case transmitted, and the respondent had allowed the appeal to be argued and judgment rendered without taking any steps to have the case amended.
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Appeal from a decision of the Supreme Court of New Brunswick refusing to set aside a verdict for the plaintiff and order a non-suit or new trial.
This was an action on a marine policy by which the respondent's ship the "Minnie H. Gerow" was insured for a voyage from Melbourne to Valparaiso for orders, thence to a loading port on the western coast of South America and thence to a port of discharge in the United Kingdom The only material question raised in the case is whether Lobos, an island from twenty-five to forty miles distant from the mainland of South America, is a port of loading on the coast under the policy. At the trial the question as to this was withdrawn from the jury, the judge holding that it was well understood by shipowners in St. John that Lobos was a loading port and would be understood to be included in the provision in the policy, and he directed the jury, as a matter of law, that Lobos was such a port.
The Supreme Court of New Brunswick affirmed the verdict obtained by the plaintiff at the trial. The company then appealed to the Supreme Court of Canada.
Straton for the appellants, refers to McManus v. The Etna Ins. Co.; Grainger v. Martin; Deybel's Case.
Weldon Q. C. and Palmer for the respondent, cite McManus v. Etna Ins. Co. (1); Stoneham v. The Ocean, &c., Ins. Co..
By the Court.—This was purely a question for the jury, and it not having been left to them there must be a new trial.
Appeal allowed and a new trial ordered.
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On a subsequent day Weldon Q. C. moved to vary or reverse the judgment, on affidavits showing that the question had been submitted to the jury and answered although by oversight the answer was not in the printed case.
By the Court.—The court must determine an appeal on the case transmitted to it; as no application was made to amend the case before the appeal was argued it is too late now. To grant this motion would necessitate a re-argument of the appeal.
Motion dismissed with costs.
Solicitors for appellants: Gilbert & Straton.
Solicitors for respondent: Weldon, McLean & Devlin.
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