Rodee v. Detroit Fire & Marine Insurance — 56 N.Y. St. Rep. 393

Majority

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Henry Rodee et al., Resp’ts, v. Detroit Fire & Marine Insurance Co., App’lt.

(Supreme Court, General Term, Third Department,

Filed December, 1893.)

Headnote

1. Insurance—Marine—Damages.

In an action on a policy of insurance upon a cargo of wheat, the loss or damage is to be measured by the difference between the value of the grain, upon its arrival at its port of destination, in a sound and undamaged condition, and its actual value in its damaged condition.

2. Same—Termination of voyage.

The voyage is not ended, within the terms of the policy, until the vessel is actually landed at the dock, where the cargo can be removed.

8. Same—Notice.

Where the vessel arrived at its port of destination on Thursday, but it could not, from the fact that it had to be lightened, reach the dock until Saturday, when it was unloaded and the goods found to be damaged, a notice to the company on the following Monday or Tuesday is within the meaning of the provision of the policy that, in case of damage, the company should have early notice thereof.

4. Evidence—Insurance

In an action upon a policy to recover damages to wheat from wetting, a party may testify what, in his opinion, was the cash market value of the wheat at the i port of destination, based upon his experience and the daily market quotation, even though such valuation was, in part, made up of the cost of the wheat, the freight, insurance and exchange.

Appeal from a judgment in favor of plaintiffs,

Clinton, Clark & Ingram {George Clinton, of counsel), for app’lt; Louis Hasbrouck {Alric H. Herriman, of counsel), for resp’ts.

By a policy of insurance dated August 20, 1891, the defendant insured a cargo of grain belonging to the plaintiff, on board of the schooner Hartford, to be transported from Detroit to Ogdensburg, the policy reading “ in board cargo of the schooner Hartford, at and from Detroit to Ogdensburg.”

It was in the policy that the property insured should be insured from “ beginning the adventure upon the said property from and immediately following the loading thereof at the port and place named in the endorsement, and so shall continue and endure until the same shall arrive and be safely landed at the port of destination, not to exceed forty-eight hours from time of arrival.” It was further provided in said policy of insurance, “ that in case of loss or damage to the property hereby insured, it is agreed that this company, their agent or representative, shall have early notice of the same.”

On its way from Detroit to Ogdensburg, the schooner encountered a storm, and took in some water, whereby a portion of the grain became wet; the testimony of the captain which seems to have been taken as conclusive was, that the water came in around the centre-board box ; the strain of the centre-board on the centreboard box which enclosed it, worked the box in such a way as to let in the water.

The vessel reached a point at or near Ogdensburg on the morn

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ing of the 3d of September, but could not reach the plaintiff’s dock or elevator because of the depth of the vessel in the water, until a portion of the grain had been taken out of the vessel— “ lightered out in bags;” that is, “ we put the wheat into bags and put it into a lighter till we got light enough draft so we could go up the river.” After taking out a portion of the wheat, and so lightening the vessel, it proceeded up the river to the plaintiff’s elevator, arriving there on Saturday the 5th.

The plaintiff proceeded to unload the vessel by means of the elevator; it was discovered that the wheat was damaged, there were some lumps or cakes of it around the centre-board box; • the lumps or cakes off damaged wheat were attempted to be kept separate from the rest, but in taking them out some of them crumbled away and got mixed with the other wheat. In proceeding further with the unloading it was discovered that a portion of the wheat on the bottom of the vessel was wet; some of the wheat in the cargo was so wet that it sprouted.

The plaintiff commenced grinding the wheat as rapidly as possible, upon the theory subsequently explained by him upon the trial, that the wheat would become worse if not immediately disposed of, and a considerable portion of the wheat was ground up.

Upon the trial the court charged the jury that no allowance should be given by them for any loss or damage for that portion of the wheat so ground into flour.

On Monday, or Tuesday, it is uncertain which, in one portion of the evidence he says on Monday, and in another portion on Tuesday morning, the plaintiff gave notice of the loss to the defendant’s agent at Ogdensburg, who notified the home office of the company, who sent an adjuster to examine into the loss, if any.

The principal questions litigated were whether the plaintiff had given timely notice of the loss and whether he had proved by legal evidence the loss or damage sustained by him. It was practically conceded on both sides that the loss or damage is to be measured by the difference between the value of the grain at "Ogdensburg upon its arrival in a sound and undamaged condition, and its actual value in its damaged condition, and it is claimed by the defendant that an essential element was to prove what its market value would have been if sound and undamaged, and his claim is that the plaintiff failed to give any legal evidence of such market value.

The plaintiff testifies in his direct examination, “ In my opinion $1.12 per bushel would be the cash market value of the 23,001 bushels of wheat composing that cargo had it arrived at Ogdensburg sound.” No objection to this testimony was made by the defendant. *

In his cross-examination the plaintiff testified: “The cash market price was $1.12 for No. 2 red ; this was Michigan wheat. When the vessel arrived that was the cash value in Ogdensburg. We had the market quotations every day. That is what a cargo of No. 2 red wheat would have cost to have bought it and delivered it at Ogdensburg that day when the wheat arrived there, adding

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freight and insurance to it. I take the cost of the cargo and add freight and insurance. The cost of this cargo was $1.06 and nearly one-half cents at' Detroit; then the freight was five cents and the insurance, I think, was about half a cent a bushel; then there was exchange. I added all that together and called it the cash market value at Ogdensburgh.

At the close of the plaintiff’s evidence, the defendant .moved to strike out the evidence in regard to the value of the sound wheat upon the ground “ that it appears from the testimony of the witness Rodee, that the valuation which he gives, and which is the. only evidence as to the value, he arrives at it by taking the cost of the wheat, adding freight, insurance and exchange.” The court, in declining to grant the motion, said: “ The courts have held that the cost of an article is some evidence of its value. And Mr. Rodee does not entirely limit his estimate to the method you speak of, as I understand his testimony. He goes upon his own experience. He says they received daily market valuations, I suppose from some centre, and that his own judgment as a purchaser of wheat'for many years coincides with the costs of wheat at Ogdensburg.”

As to the first question suggested, that the plaintiff did not comply with the condition of the policy requiring early notice of the loss, it seems to me that the trial court made no error.

The property was insured until the vessel should arrive “ and be safely landed at the port of destination, not to exceed forty-eight hours from time of arrival.”

It appears that the vessel could not land at the plaintiff’s dock or elevator until she had been lightered, that is, a portion of the cago removed, and the place where she commenced the lightering was not her point of final destination, and the voyage was not ended within the terms of the policy until the vessel was actually landed at the plaintiff’s dock, where the cargo could be removed. Meigs v. The Mutual Marine Ins. Co., 56 Mass., 439 ; Bramhall v. The Sun Mutual Ins. Co., 104 id., 510 .

The vessel reached plaintiff’s dock or elevator on Saturday, and notice was given to the resident agent of the defendant on the following Monday or Tuesday. What is early notice of the loss, is to a certain extent to be determined by the circumstances of each particular case. Bennett v. Lycoming Co., 67 N. Y., 274 -77.

Upon first beginning to remove the wheat from the vessel, the full extent of the damage could not be ascertained; there were lumps or cakes of the dampened wheat around the centre-board box; by the terms of the policy unless the loss or damage reached five per cent, it was not recoverable, and it may very well be that the plaintiff would be justified in not giving notice until it appeared that the loss was reaching that per cent, which would entitle him to a recovery.

The grain was unloaded on Saturday, when the full extent of the loss was apparent; the next day was Sunday, not a business day, and notice was given the following Monday or Tuesday; and it seems to me that that is a fair compliance with the terms of the

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policy; it is not immediate notice, but it is “early notice.” As to the prooí of damage which the defendant asked to be stricken out, it seems to me that the trial court committed no error in that respect, first, it was admitted without objection ; second, it appears as suggested by the trial court that the witness not only testified from his own experience, but that they received daily market quotations. As to which the witness laid the most stress upon, the court which heard him give his testimony, and his manner of giving it, can judge much better than the appellate court as to whether he relied entirely upon his method of computing the value or whether upon the market quotations, or upon both. As the testimony appears in the case, the witness seems to have been qualified to form his judgment as to the value of the grain from the market quotations, and also upon his own judgment and computation as explained by him, and heretofore set forth.

I do not think it necessary to discuss any of the other questions raised in the case or the facts relating thereto.

The judgment should be affirmed, with costs. '

Mayham, P. J., and Putnam, J., concur.