Soelberg v. Western Assur. Co.

Citations

• 119 F. 23
• 1902 U.S. App. LEXIS 4634

Syllabus

<p>1. Marine Insurance—Action on Policy—Evidence.</p> <p>The plaintiff, in an action on a marine insurance policy, having the burden to prove a loss from a cause and to an amount that will authorize a recovery under the terms of the policy, such amount must necessarily be what remains after all proper deductions have been made, and the defendant may properly be allowed to show, on cross-examination of plaintiff’s witnesses, the existence of liens on the vessel which were a charge on plaintiff's interest, not disclosed by their testimony in chief.</p> <p>2. Same—Action on Policy—Sufficiency of Evidence.</p> <p>Under the settled rule that, to entitle an insured to recover on a marine policy of insurance, the burden rests, upon him to prove a loss from a cause insured against, and for an amount which renders the Insurer liable under the terms of the policy, where a policy provides that the insured shall not have the right to abandon the vessel unless the amount which the company would be liable to pay under an adjustment as a partial loss “shall exceed half the amount hereby insured,” and also that no partial loss shall in any event be paid unless amounting to at least 5 per cent, net, the insurer does not meet such burden of proof merely by evidence that the vessel received such injury during a voyage that she was obliged to seek a port of refuge, and that her value when repaired would not equal the cost of the repairs. To establish either a constructive total loss, which gave the insured the right of abandonment, or even a partial loss, under such policy, there must be evidence from which a jury could find that the loss occurred from a peril insured against, and the amount of damage which resulted from such peril, as distinguished from such .as may have resulted from the defective condition of the vessel, attributable to wear and tear or other ordinary causes; and this, whether the amount of loss to fix liability or' to authorize abandonment is measured by the amount