Hart v. British & Foreign Marine Insurance

Foote, C. This action was brought to recover ornan insurance policy for a marine loss on a cargo of wheat shipped on a barge called the Grand Island for a voyage from Colusa to San Francisco. The owners of the wheat were Messrs. Hart and Harrington, the plaintiffs here.

Some time about the middle of the night or in the early morning of the tenth day of December, 1878, the barge suddenly sank in the bay of San Francisco, when just below Red Rock, a well-known place in that body of water. Her cargo, consisting of the plaintiffs’ wheat, was a total loss. The night was not very dark, and a light north wind was blowing. The barge was being towed, about the usual course for such vessels over that [441]water-way, and there is nothing to show any sunken rocks, or other obstructions to navigation, which would have caused her loss at the place where she was overtaken by disaster.

Her pilot does not, from his testimony, seem to have any definite idea of the cause of her loss, except that she sprung a leak, the origin of which he was unable to-determined When, afterward, the craft was raised, and her bottom examined, it was found that three of her planks were broken and splintered.

The defenses set up to the action were: 1. That the barge was unseaworthy; 2. That the plaintiff Hart at the time he made application for the policy, fraudulently concealed from the defendant the facts known to him, viz., that the barge was overdue and probably lost, of which facts the defendant had no knowledge, and which at the time it had no means of knowing or ascertaining; 3. That Hart, at the time of the application, had knowledge of the loss of the barge, which fact, then unknown to and beyond the reach of the defendant, he fraudulently concealed. Which facts, it was alleged, avoided the policy.

After the plaintiffs had rested their case, the defendant was not allowed to introduce proffered evidence to sustain the issues of fraudulent concealment. The plaintiffs claiming, and the court concurring, that, assuming such facts as alleged to be true, they did not in law avoid the policy, but gave the defendant the right only of rescinding the contract, and that as the exercise of that right had not been pleaded by way of defense, the proposed evidence was inadmissible. By permission of the court the answer was so amended as to allege the required rescission. The trial was prosecuted to a conclusion, the jury finding generally “in favor of defendant.” From the judgment, and an order refusing a motion for a new trial, this appeal is taken.