Benjamin Fiske et al. versus The New England Marine Insurance Company, 15 Pick. 310

Putnam J. delivered the opinion of the Court. The nlaintiffs certainly made out a prima facie case, and must recover unless the defendants rebut it by proof of a legal defence to the action. They rely upon the concealment by the plaintiffs, of the time of the sailing of the vessel. And if that was material to the risk and was not communicated, the defendants should prevail, notwithstanding the plaintiffs did not intend to deceive or defraud the defendants by withholding the information. No fraudulent intent on the part of the plaintiffs is suggested by the defendants.

This matter of defence must be satisfactorily proved by the defendants. They must prove that the time of sailing was a fact material to the risk, and that the plaintiffs withheld the information. The jury have found a verdict for- the plaintiffs ; so in effect finding, either that the time of the sailing was not material, or if it was, that it was communicated to the defendants. And they do not say, upon what grounds they returned their verdict.

They might have found that the time of sailing was material, and if they did so find, then the defendants cot tend, that the burden would have been upon the plaintiffs, to show that they communicated the fact to the defendants. And they further contend, that there is not sufficient evidence in the case to sustain the verdict which may have been given upon that ground. The defence of concealment is nearly allied to fraud and misrepresentation. It is not sufficient to suggest it. The party alleging must prove the fact. Mr.

Roscoe states the general.rule very well. “Where the issue involves a charge of culpable omission, it is incumbent on the party making the charge, to prove it, although he must prove a negative, for the other party shall be pre sumed to be innocent until proved to be guilty.” Roscoe on Evid. 52. The jury were not satisfied that there was any concealment. The defendants cannot expect the Court to disturb the verdict, unless they prove that the evidence in the case established clearly, that the time of sailing was material, and that the plaintiffs did not communicate • it.

The defendants have the same burden of proof before the Court, which they had before the jury, touching every matter or thing which would constitute such a concealment as would avoid the policy. Let us consider whether the time of sailing was material to the risk.

We think this must depend upon some other fact which is connected with the time ; for example, if there were a severe storm immediately after the ship sailed, which was known to the assured, and unknown to the insurer ; if there were a hostile ship watching the departure of the vessel, known to the assured, unknown to the insurer ; if she were a missing ship, and known to be out of time, when the policy was effected ; the time of sailing would be essentially material to the risk.

Withholding the information of the time of sailing, in such circumstances, or in any others having a peculiar and necessary connexion with or relation to the time of sailing, would be very strong evidence of a fraudulent intent on the part of the assured, and would avoid the policy. But “ a party is not bound to communicate the time of sailing, unless at the time when the policy is effected it is a missing ship.” Per Tindal C. J. Elton v. Larkins, 5 Carr & P. 385. Now this was not a missing ship. So the witnesses called by the plaintiffs testified.

She sailed on the 18th or 19th of November, 1831, on a voyage to Smyrna and back to Boston ; and it is proved that the usual length of such voyages is six months. The policy was written on March 13, 1832 ; not quite four months after she sailed. Whether a ship be out of time or not, must depend upon the ordinary length of the voyage or passage described in the policy, compared with the tyne she has been out. In the case at bar only two third parts of the usual time for the accomplishment of the voyage had elapsed.

We cannot imagine that a jury, upon such evidence only, could have found that this was the case of a miss ing ship, or of a ship out of time. She was not out of time It was proved that the Neptune Insurance Company, on Feb ruary 23, 1832, insured $3000 for Andrews on the profits of half of the cargo of this ship on the outward voyage, at the common premium of one and a quarter per cent, notwithstanding the president knew that the ship had been gone a long time.

That policy was less favorable to the underwriters than the one now under consideration ; as in the former there could be no benefit of salvage, while there would be in the latter. The jury might reasonably have thought, when the policy in the case at bar was made, that there was nothing extraordinary in regard to the time that the ship had been upon her voyage, that called for any increase of premium, or indicated any increased risk.

But it was argued for the defendants, that they proved by Cartwright, that there was a gale on November 22, 1831, and that he refused to underwrite, on being informed that the ship sailed before that day. And so they contend, that there was something extraordinary happening so near the time of sailing, as to increase the risk, and to render it necessary for the plaintiffs to disclose the time when the ship sailed. In the case of Ely v.

Hallet, 2 Caines’s R. 57, the plaintiff had special information of a violent storm which took place el i yen hours after the vessel sailed, which he did not particu Iarly describe to the underwriters ; and it was held by a majority of the court that he could not recover. But here the vessel sailed three or four days before the storm of which Cartwright speaks, was observed í¿t Boston. If the ship proceeded upon her voyage with usual despatch, she might, on November 22, 1831, have been, in pleasant weather, two or three hundred miles distant from Boston, where the storm then raged.

It would have been a somewhat violent presumption, to assume, as a fact, that the ship encountered that storm. We think in the absence of any other proof upon the point, that this evidence is not sufficient to establish the fact, that there was any thing extraordinary, which was connected with the time of sailing, which rendered it maerial to the risk.

Several presidents of insurance offices concurred in opinion, that generally they should make no difference in the premium on account of the vessel having sailed before the insurance was made ; but that in the seasons of 1831-32, the time of sailing would make a difference, in their opinions. But as to that opinion, the jury had evidence, in regard to the insurance made for Andrews by the Neptune Insurance Com pony, that no difference was made in the premium. They had facts to weigh against opinions, expressed after the event.

It was contended for the defendants, that the policy was “ at and from Boston to Smyrna &c.,” and so, that the defendants might well suppose, that the vessel had not sailed when the policy was made, or at any rate, had not been out four months on her voyage. But it is proved, that such is the usual manner of describing the risk, when both parties well know that the ship has sailed. No inference against the plaintiff, on that account, could bp made, under the circumstances.

Besides, the memorandum which the plaintiffs made for the insurance was “from Boston to Smyrna” &c., and not “ at and from.” It was left with the defendants, and was not Toduced. Probably it is lost. That however is not the plaintiff’s fault. Upon reviewing the evidence on this point, we think that the jury might well have found, that the time of sailing, under the circumstances, was not material to the risk. But suppose the jury were of opinion, that the time of sail m§ was material to the risk, then the defendants contend, that the burden was upon the plaintiffs to prove that they communicated the fact.

We have already cited the opinion of a learned jurist, (Mr. Roscoe,) that the negative should be proved by the defendants, under such circumstances. They are to affect the plaintiffs with a culpable omission of duty. They are to remove the presumption of the law, that the plaintiffs did their duty, and conducted themselves honestly and properly. We think it was incumbent on the defendants to satisfy the jury, that the plaintiffs withheld that information, if it were material to the risk.

Upon this point,--Powers (who procured the policy) says expressly, that he knew that the vessel had sailed ; that it was published in the newspapers ; and that he had no intention of concealing it. He cannot recollect distinctly, whether he informed Hall (the president) or not, that the Elizabeth had sailed ; but thinks he did not. Now as the witness had no knowledge upon the fact in question, his thinking one way or the other, was not evidence upon which the jury could safely rely.

But they had a fact, which was proved by Pierce, the president of the United States Insurance Company, which was of much weight; that the witness, in practice, always made inquiries respecting the time of sailing of the vessel. There is no evidence in the case, that the defendants have any practice upon this point, which differs at all from that of the United States Insurance Company. It certainly has reason and common se'nse to sup port it. There is no suggestion, that the plaintiffs made a false answer to any inquiry made by the defendants. If that were proved, the case would be clear for the defendants.

It the jury were satisfied, that the time of sailing was material, we think they might well come to the conclusion, that the defendants had failed to show tnat the plaintiffs withheld that information. If the point was left doubtful, then the defendants fail to make out a case of concealment. Upon the whole matter, the Court are all of opinion, that the judgment should be rendered for the plaintiffs, according to the verdict.