Allen v. Mercantile Mutual Insurance

The first point taken is, that there was error in permitting a recovery for the freight of the wheat. This objection is urged on the .ground that the certificate or contract of insurance covered only the freight money on flour. The language of the certificate- is $1200, “ on freight money on flour, inboard cargo and inasmuch as the policy was not a valued policy, the plaintiffs could recover only to the extent of the risk. Had this objection been raised by the pleadings, and at the trial, I am of the opinion that it should have prevailed. The plaintiffs, to make a cause of action, were required to state a valid contract of. insurance, in the complaint. So it was therein averred, in appropriate terms, that the plaintiffs were insured by the defendants, -in the sum of $1200, on freight money on inboard cargo of the brig Bio Grande. This was a material averment, and unless denied by the answer, must stand as admitted. (Code, § 168.) On recurring to the answer, it "will be found that this averment is not denied, or even alluded to by way of qualification. Under this state of the *656pleadings, all the plaintiffs were hound to prove to make out their cause of action, were the facts denied in the answer. The other averments of the complaint stood admitted. If the defendants relied upon any qualification of the contract, or on any contract different from that stated in the complaint, or intended to put the latter in issue, they should have denied the averment, or stated the qualifiation, in the answer. It has been repeatedly held that facts proved, but not pleaded, are not "available to the party-proving them. (6 N. Y. Rep. 179. 2 id. 606. 12 id. 9. 25 id. 266. 20 Barb. 468.) The objection, too, as here presented, is one of variance between the pleadings and the proof. This objection should be taken at the trial. (12 N. Y. Rep. 18.) In this case it was held that the objection that the case made by the evidence varies from that stated in the complaint can not prevail on a review unless made at the trial. The reason of the rule is this, that the objection should be raised in time •to give" the party an opportunity to remove it. Generally this result can be attained by a motion to amend, which will almost invariably be granted. Sometimes it may be effected by further proof. In this case, if the objection had been raised at the trial,.«oro constat but that the plaintiffs would have been allowed to amend their complaint, and have given proof that the contract did in fact cover the entire inboard freight money, and that the word “flour” was inserted, or other words, as “and wheat,” omitted in the written instrument by mistake. (16 N. Y. Rep. 263. 28 id. 438.) For ' these reasons, too, it will be readily perceived that the objection can not be raised by way of exception to the finding of the judge, after the trial.

As the case comes here, the contract of insurance between the parties, as stated in the complaint, is admitted of record; and the plaintiffs must recover the amount specified in the contract, if they have established other facts put in issue and necessary to make out their action.

The contract of insurance in this case, briefly stated, was *657that the defendants would pay to the plaintiffs the freight money stipulated for, in case they were prevented from earning it through the perils of the lakes, rivers, canals, &c. and in case there was no breach on the part of the assured, of any of the conditions forming part of the contract. There is no dispute in regard to the cause of the disaster which occasioned the loss and damage. It occurred from the perils of the lake, against-which the defendants had guarantied to the plaintiffs protection, without fault of the owners, master or crew of the vessel. The plaintiffs were therefore entitled to recover the freight money, in whole or in part.

It is insisted that in this case no recovery can be had, because of the stipulation in the policy, that the grounding of the vessel, or mere detention in any case, should not be cause for abandonment; and that in case of detention on the voyage by the closing of navigation, the risk should continue, but that an additional premium should be paid for the winter risk. This clause contemplates mere detention from the grounding of the vessel, the closing of navigation, or other causes. But here there was more than mere detention. The voyage was entirely broken up and rendered impossible of completion according to the intention of the parties, by stress of weather. Certainly impossible to an extent'which deprived the plaintiffs of all advantages to be derived or realized from their contract with the shippers. The plaintiffs are not, therefore, precluded from recovering by reason of this provision of the policy.

Again ; it is claimed that the plaintiffs can-not recover for the. freight money, or in any event, not the full amount; because they voluntarily surrendered up the cargo without exacting freight, under circumstances where they might have insisted upon earning and receiving it. It is beyond dispute that the plaintiffs were prevented from earning full freight on the contract for transportation. They were unable to deliver the property, specified in the bill of lading and received on board the vessel, at its place of destination. *658The inability to deliver was occasioned by a peril against which the plaintiffs were guarantied by their contract of insurance, and it follows that the defendants were bound to save them harmless and indemnified against the loss and damage which ensued by reason of such peril and disaster. And in my opinion they were entitled to recover the entire sum claimed.

According to the facts found, and they seem well found from the evidence, the plaintiffs were damnified by the dis-. aster, to the full amount of the freight money. It is said they were under obligation to forward the part of the cargo, saved, but the case shows that the damage to them as a result of the disaster would have been enhanced, rather tffan diminished by so doing. It does not, .therefore, lie with the defendants to complain that they took no further steps towards, the delivery of the property at the place of destination, It is undoubtedly true, that as between the plaintiffs and the owners of the cargo, the former were bound by law to use all reasonable diligence in .forwarding the goods saved from the disaster, unless thus abandoned to and accepted by the owners. But this ceased to be a matter of any importance to the insurer- of the freight money, when the damage or loss to the assured would be the same, whether he forwarded the goods or abandoned them to the shipper or owner. In. this view of the case it is unnecessary to. examine the question whether the owners were not, in fact, entitled to take the remaining..jrfoperty at the place of disaster, or at Buffalo, free of freight, I am satisfied that the plaintiffs have established a right to recover-full freight money in this case. The authorities cited by the defendants’ counsel apply to cases of detention—mere interruptions of the voyage—not, as I think, to a case like this, where the voyage was entirely broken up and defeated. As regards these plaintiffs, all chance of deriving any benefit from their contract with the shipper was defeated as effectually and completely as if the vessel had sunk in ten fathoms.

Some objections to the findings of the learned judge, not falling within the line of examination qbpye pursued, have *659been raised by the defendants’ counsel; but I am satisfied that all the findings essential to the support of the judgment are fully sustained by the evidence.

The judgment must be- affirmed, with costs.

Poclces, Pames, Poselran¡ and Potter, Justices.]