McKern v. Corporation of Royal Exchange Assurance

Mr. Justice Harris delivered the opinion of the court. 1. The pleadings presented two issues: One concerned the liability of the defendant, and the other related to the amount of the loss sustained by the plaintiffs. To determine that the insurer is liable is only to take one of the two steps required to be taken before the plaintiffs are entitled to a judgment, for the insured have yet to show the amount of the loss sustained by them; and, hence, the judgment cannot be sustained. No evidence was offered upon any subject and consequently there was no evidence to warrant a judgment for $254.75, even though it be assumed that the defendant is liable: 26 Cyc. 726. 2-4. The pleadings admit that the boat sank while in port, but there is not a word of evidence to show the cause of the sinking. If the loss did not occur from [656] some cause insured against, the plaintiffs cannot recover; and it was therefore incumbent upon the plaintiffs to show that the sinking was probably caused by one of the perils insured against: Cory v. Boylston F. & M. Ins. Co., 107 Mass. 140 (9 Am. Rep. 14); Soelberg v. Western Assur. Co., 119 Fed. 23 (55 C. C. A. 601); 26 Cyc. 723, 730. If there is evidence showing that a vessel was lost or damaged upon encountering some peril insured against, the presumption is that the vessel was seaworthy and the burden rests upon the insurer to show that the vessel was unseaworthy; but when a loss occurs which cannot be ascribed to stress of weather, or to any accident which might by possibility have produced it, the fair and natural presumption is that the vessel was defective and not seaworthy, and the burden of proving that, in fact, she was seaworthy is then thrown on the insured: Higgie v. American Lloyds, 14 Fed. 143, 147 (11 Biss. 395); Parker v. Union Ins. Co., 15 La. Ann. 688; Dupeyre v. Western M. & F. Ins. Co., 2 Rob. (La.) 457 (38 Am. Dec.) 218; Deshon v. Merchants’ Ins. Co., 52 Mass. (11 Met.) 199; Barnewall v. Church, 1 Caines (N. Y.), 217 (2 Am. Dec. 180); Snethen v. Memphis Ins. Co., 3 La. Ann. 474 (48 Am. Dec. 462); Treat v. Union Ins. Co., 56 Me. 231 (96 Am. Dec. 447); Perry v. Cobb, 88 Me. 435 (34 Atl. 278, 49 L. R. A. 389); Miller v. South Carolina Ins. Co., 2 McCord (S. C.), 336 (13 Am. Dec. 734); Rugely v. Sun Mut. Ins. Co., 7 La. Ann. 279 (56 Am. Dec. 603); Martin v. Fishing Ins. Co., 20 Pick. (37 Mass.) 389 (32 Am. Dec. 220); Wallace v. De Pau, 1 Brev. (S. C.) 252 (2 Am. Dec. 662); Talcot v. Commercial Ins. Co., 2 Johns. (N. Y.) 124 (3 Am. Dec. 406); The Orient, 16 Fed. 916 (4 Woods, 255); Swift v. Union Mut. Marine Ins. [657] Co., 122 Mass. 573; 26 Cye. 723; 7 Enc. of Ev. 549; 14 R. C. L., p. 1046, § 223. The plaintiffs did not make a sufficient record to support the judgment. The judgment is reversed and the cause is remanded for further proceedings. Reversed and Remanded.