450 F2d 156 Jack Neilson Inc v. Chicago Insurance Company

450 F.2d 156

JACK NEILSON, INC., Plaintiff-Appellant,
v.
CHICAGO INSURANCE COMPANY, Defendant-Appellee.

No. 29129.

United States Court of Appeals,
Fifth Circuit.

Oct. 25, 1971.

William L. Von Hoene, Von Hoene & Becker, New Orleans, La., for plaintiff-appellant.

William A. Porteous, III, Porteous, Toledano, Hainkel & Johnson, New Orleans, La., for Chicago Ins. Co., defendant-appellee.

Before BELL, AINSWORTH and GODBOLD, Circuit Judges.

PER CURIAM:

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1

Jack Neilson sued the defendant insurance company to recover on a marine insurance contract affording hull coverage, for damages incurred in the sinking of the tug M/Margaret. At the close of plaintiff's case the trial judge directed a verdict in favor of the insurer, on the basis that plaintiff claimed that the cause of the sinking was a recent grounding of the vessel and that plaintiff had failed to prove that the grounding actually was the cause.

2

It appears that the court did not consider the question of whether Tropical Marine Products v. Birmingham Fire Ins. Co., 247 F.2d 116 (5th Cir. 1957), might apply, a possibility which is for consideration by the trial court in the first instance. See also Gulf Coast Trawlers, Inc. v. Resolute Ins. Co., 239 F.Supp. 424 (S.D.Tex.1965). The District Judge is not to be faulted. The state of the pleadings and the stipulations in the pre-trial order were far from clear as to just what the respective parties undertook to prove and where they considered the burden of proof to fall.

3

Other issues are of such nature that they can be removed by sharpened pleadings, or involved incidents of trial which presumably will not arise again, and, therefore, we need not comment on them.

4

Reversed and remanded. Costs are divided equally.