New York & Boston Despatch Express Co. v. Traders' & Mechanics' Insurance

Field, J. The exceptions find that‘6 the parties stipulated that, in case of recovery by the plaintiff, the amount should be $768.25, with interest from August 20, 1880, unless it should appear on proper evidence that the amount should be changed.” The defendant offered to show the “ peculiar value" of the goods in a sinking boat, such as it contended this was at the time the fire broke out; and it contended that the goods in the situation they were then in were of no value. The court ruled that “ no proof upon that point could be introduced; to which ruling the defendant excepted.” The jury must have found that the loss was by fire as the immediate and efficient cause. As the goods were not touched or damaged directly by fire, and were not damaged by water until the steamer sank with the goods on board, there was no occasion to apply the rule of damages which prevails when there are two concurrent causes of loss. The actual loss was wholly either by the fire or by the collision, and by which, as the proximate efficient cause, it was for the jury to determine. New York [224] Express Co. v. Traders’ Ins. Co. 132 Mass. 377. Insurance Co. v. Transportation Co. 12 Wall. 194. Western Massachusetts Ins. Co. v. Transportation Co. 12 Wall. 201. It would seem that the opinions of experts upon what was the immediate and efficient cause of the loss would have been inadmissible, although there might be incidental questions upon which they would have been admitted. Milwaukee & St. Paul Railway v. Kellogg, 94 U. S. 469. It is difficult to understand what evidence of the peculiar value of the goods, in the situation they were in at the time the fire broke out, could be offered, that would not involve an opinion upon the probability of the goods being lost, in the manner they were, by reason of the collision, if the fire had not occurred; but if there were evidence, in other respects competent, of this peculiar value, still, if the jury had found that the goods would have been lost in the manner they were, in consequence of the collision, if the fire had not occurred, then on the evidence they could not have found that the loss was caused by fire, and the verdict must have been for the defendant; because the goods were not burned, and the collision was not caused by the fire. If the jury found that the goods would have been saved but for the fire, and that therefore the actual loss in this case would not have happened but for the fire, then evidence that they might have been subjected to some partial injury in saving them, or to some claim for salvage, is too conjectural and uncertain to affect the rule of damages. If the goods had been actually destroyed by burning, under such circumstances that, if they had not been burned, they must inevitably have been totally lost by the steamer’s sinking in consequence of the collision, then the question would have arisen, whether the “ actual cash value at the time of the fire ” must not be estimated with reference to the liability of total loss in consequence of the collision. But in our opinion that question does not properly arise in this case, and the ruling of the Superior Court was correct. A majority of the court are of opinion that the Exceptions must he overruled.