Saltus v. Commercial Insurance

10 Johns. 487

Opinion

Per Curiam.

The survey was not evidence on the part of the plaintiffs, unless called for by the defendants. It is altogether an ex parte document. (3 Johns. Cases, 46.) But the point need not have been raised in this case, for if the surveys be excluded, there was no evidence of a want of seaworthiness, and on the question of seaworthiness, as the testimony stands, the court do not think it would be proper to interfere with the finding of the jury.

The plaintiffs were likewise entitled to recover the partial loss, (in addition to a total loss,) arising from the repairs put on the vessel at Kinsale, in November and December, 1810. As soon as these repairs were made, a right of action for those damages accrued; and to deny to the plaintiffs a right to recover them, would be denying them an indemnity. They were not connected with the subsequent total loss. They were a previous distinct loss. It was, at the time, a reparation in which the interest of the insurers was concerned, and as much for their benefit as for that of the assured. The motion on the part of the defendants to set aside the verdict is denied.

Motion denied.