Graves v. Washington Marine Insurance , 94 Mass. 391 ( 1866 )

Bigelow, C. J.

There was evidence proper to be submitted tt the jury upon the question whether the defendants had not waived all objections to the sufficiency of the preliminary proof of loss. It appeared at the trial, not only that the defendants made no objection to the nature or kind of proof submitted to them by the plaintiff, but that they contented themselves with a general refusal to pay, and that subsequently they entered into negotiations with the plaintiff for a settlement of the loss without any suggestion that he had not offered all the proof necessary to make his claim under the policy due and payable. This course of conduct tended to lead the plaintiff into the belief that the defendants did not require further evidence of the loss, and to induce him to forbear making fuller proof, if that originally offered was in any respect deficient. 2 Arnould on Ins. 1200. Francis v. Ocean Ins. Co. 6 Cow. 404, 415 ; 8. C. 2 Wend. 64. Heath v. Franklin Ins. Co. 1 Cush. 257, 265. Martin v. Fishing Ins. Co. 20 Pick. 389, 396. The jury having found a waiver of further preliminary proof of loss upon competent and adequate evidence, the defendants were precluded from all objection to its sufficiency.

Besides; if there had been no waiver, the defendants show no valid ground of exception to the course adopted at the trial in relation to this part of the case. All the documents which constituted the preliminary proof were in evidence at the trial. It was open to the defendants to raise any objection to its sufficiency, and to ask for a ruling of the court on the question. This they did not do. Having omitted to avail themselves of the opportunity to object to the adequacy of the proof, they cannot now be heard to say that it was defective or informal. Tt is no answer to say that the documents were not offered in evidence by the plaintiff, and that the court erred in not requiring him to produce them. This was a wholly immaterial error, which worked no prejudice to the defendants. It was competent for them to raise the objection at any stage of the trial after the protest and survey were put in evidence, and its weight and effect would have been the same, whether the evidence on which it was based was introduced by themselves or by the plaintiff. They were not aggrieved, therefore, by the ruling of the court that the plaintiff was not bound to offer these documents in evidence, nor were they shut out from raising objections to the sufficiency of the preliminary proof.

The objection to the auditor’s report, on the ground that he did not^find the diminished value of the vessel at the home port, and that his finding as to the amount of the plaintiff’s claim for a partial loss should have been based on such home valuation, is not well founded. The insured is entitled to an indemnity He cannot claim for a total loss, because there has been nc abandonment. But there can be no doubt that the sale of the vessel was justifiable, because it was impossible to repair her, either at the" port of necessity or at a neighboring port to which, she might have gone after receiving temporary re pairs, without an expenditure of a sum greatly exceeding the value of the vessel as fixed by the policy. Under such circumstances, her diminished value at the home port is no measure of indemnity, even if it could be ascertained. By reason of the perils insured against, the assured has been com pelled to sell his vessel in a foreign port. He could not bring her home without repairs. He could not make the repairs, because the cost of them would have been excessive and dispro portionate.. He has therefore sustained a loss equivalent to the whole sum insured by the policy. It is quite immaterial that no repairs were actually made, because it is apparent that, if made, it would not have diminished the plaintiff’s claim, on the insurers. The contract of insurance on the ship is, that the insured shall be indemnified for losses by perils of the sea during the time named in the policy. If the ship becomes innavigable in consequence oi such perils, so as to require repairs in a foreign port which cannot be made, and a sale of the ship becomes necessary, the loss of the owner cannot be less than the value of the ship, deducting the proceeds of the sale, and nothing less than that sum can be an indemnity under such circumstances. Stevens & Benecke on Av. (Phil, ed.) 387, n. 2 Arnould on Ins. 985. The plaintiff, having waived his claim to retain the whole sum received for old materials sold, and having agreed to deduct from the amount of the verdict a due proportion of such proceeds, is entitled to recover of the defendants the balance remaining after such deduction is made.

It was within the discretion of the court to require the jury to find specially on certain questions at issue between the parties. Dorr v. Fenno, 12 Pick. 521, 525. Spoor v. Spooner, 12 Met. 281. Besides; we do not see that the defendants have been in any degree prejudiced by the mode in which this discretion was exercised at the trial. Exceptions overruled.