O'Boyle v. Northwestern Fire & Marine Ins.
49 F.2d 713
2d Cir.
1931
Check Treatment
CHASE, Circuit Judge

(after stating the facts as above).

With the evidence conflicting as above indicated, the denial of the defendant’s motion, made at the close of all the evidence, to dismiss the complaint for lack of proof, was not erroneous. Treated, as it should be, as a motion for a directed verdict, it presents the question of whether a jury of reasonable and impartial men were justified in finding the facts as the evidence in favor of the plaintiff tended to show them to be in spite of the evidence to the contrary. Troxell V» *716Delaware, L. & W. R. R. Co., 227 U. S. 434, 33 S. Ct. 274, 57 L. Ed. 586. There was evidence sufficient to support a verdict for either party, and upon elementary principles that is enough to withstand a motion for a directed verdict and quite enough to uphold the denial of such a motion when made one of the grounds of appeal.

The proof of loss put the cause of the sinking of the Maybrook upon collision with an unknown vessel. Though the plaintiff reasonably believed that to be the truth when the proof was filed, it was not shown at the trial to have been the cause. The defendant denied all liability before suit was brought, and so waived any right to further particulars by way of proof of loss as a condition precedent to the accrual of this cause of action. Royal Ins. Co. v. Martin, 192 U. S. 149, 163, 24 S. Ct. 247, 48 L. Ed. 385. There is nothing to indicate that it was misled by anything contained in the proof of loss or that the plaintiff was not acting in good faith in making the statements in it. It now insists that the cause of damage was not “ascertained” ; that the stated cause was false when the proof was filed and being so there can be no recovery. Courts, in giving effect to that provision in an insurance policy, have never treated the requirement for a proof of loss as a mere trap for the unwary. See Atlas Assur. Co. v. Hurst (C. C. A.) 11 F.(2d) 250, and cases there cited. Where the insurer has taken no action to its detriment in reliance upon any statement therein, the rule would be harsh indeed that worked a forfeiture of all insurance as the penalty for an honest mistake of fact. The law which governs here is that a substantial compliance with the terms of the policy relating to proof of loss is sufficient. American Merchant Marine Ins. Co. v. Ford Corporation (C. C. A.) 269 F. 768; Globe & Rutgers Ins. Co. v. Prairie Oil & Gas Co. (C. C. A.) 248 F. 452. See, also, Glazer v. Home Ins. Co., 113 App. Div. 235, 98 N. Y. S. 979; Lloyd v. North British & Mercantile Ins. Co. of London & Edinburgh, 174 App. Div. 371, 161 N. Y. S. 271.

The court at first charged that the burden to show unseaworthiness was upon the defendant, having in mind, no doubt, such cases -as American Merchant Marine Ins. Co. v. Ford Corporation, supra; Fireman’s Fund Ins. Co. v. Globe Nav. Co. (C. C. A.) 236 F. 618; American M. M. Ins. Co. v. Liberty Sand & Gravel Co. (C. C. A.) 282 F. 514. To this the defendant was allowed an exception which has been argued. It is true that \ the insurance policy here sued upon placed the burden upon the plaintiff to prove that the loss was not caused by unseaworthiness. After the charge excepted to was delivered, however, and before the jury had finished its deliberations, it returned to the courtroom for further instructions. At that time, the court called the attention of the jury directly to the provisions of the policy, and charged, according to the printed record: “Under that contract it would be the duty of the plaintiff to prove that the loss was (not) caused through ineompeteney or other unseaworthiness.” To this the plaintiff was allowed an exception. It is so- plain from the context that the word “not,” supplied in the above quotation in parenthesis, has been left out of the record through error that we shall treat the supplemental charge, just as it must have been given and understood by all at the time, as an instruction to the jury that the plaintiff was bound to prove that his loss was not caused by the unseaworthiness of the boat. In this way any previous error in that regard was cured, and the defendant now has nothing of which it can justly complain on' that score.

The court did comply with some of the defendant’s specific requests to charge. Others were refused. A reading of the charge as a whole shows that the issues were accurately and fully presented to the jury and in as favorable a manner as the defendant was entitled to under the law. Of course the court was not required to adopt the phraseology of the requests. A few exceptions taken to the admission and exclusion of evidence are alluded to in the defendant’s brief. Perhaps some of these rulings were not exactly in harmony with a striet application of the technical rules of evidence, but it is beyond reason to believe that the defendant was at all prejudiced by them.

Judgment affirmed.