Washburn & Moen Manuf'g Co. v. Reliance Marine Ins.

U.S. Circuit Court for the District of Massachusetts

Washburn & Moen Manuf'g Co. v. Reliance Marine Ins.

66 F. 69, 1895 U.S. App. LEXIS 3049

CourtU.S. Circuit Court for the District of Massachusetts

DecidedMarch 1, 1895

DocketNo. 356

StatusPublished

This text of 66 F. 69 (Washburn & Moen Manuf'g Co. v. Reliance Marine Ins.) is published on Counsel Stack Legal Research, covering U.S. Circuit Court for the District of Massachusetts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Washburn & Moen Manuf'g Co. v. Reliance Marine Ins., 66 F. 69, 1895 U.S. App. LEXIS 3049 (circtdma 1895).

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Opinion

PUTNAM, Circuit Judge.

The court has scrutinized this record anxiously, hoping to be able to dispose of the point which the defendant has sought to raise, but it is unable to do so. The causes of demurrer assigned are that certain portions of the declaration are double, repugnant, ambiguous, and multifarious. The difficulty the court finds is that the parts to which the demurrer relates are merely inconsequential and immaterial, and therefore cannot, in the view of .the law, result in duplicity, repugnancy, ambiguity, or multifariousness; The declaration alleges that the cargo of wire became a total loss, by the perils insured against, and also that the plaintiff is entitled to recover for a total loss. The latter allegation has a proper relation to the first. Interjected between these is one that the cargo was abandoned, and also an allegation as follows: “That the loss of the said cargo, by perils insured against, amounted to more than one-half of the whole value of said cargo, as declared in said policy.” If, in lieu of this, it had been alleged that the loss amounted to more than one-half of, but less than, the whole value; that there had been an abandonment; and that, therefore, the plaintiff was entitled to recover a total loss, under the policy, —the case might have been other than it is. As there has been no cause of demurrer assigned for mere immateriality, the demurrer cannot be sustained. Any views which the court might now express touching the claim that, under the allegation of a total loss, the plaintiff cannot recover for a constructive total loss, would not relate to any issue now before us, and would not, therefore, be binding at the trial on the judge who may preside at that time. Therefore, while, according to the rules of the common law, under a declaration for a total loss a claim for a constructive total loss can be recovered, the court would not be justified in now passing on the question, as it arises under the statutes of Massachusetts., So far as the demurrer is concerned, the second count f ollows the first.

It may be that by a special answer, or otherwise, the defendant can compel the plaintiff to meet the issue which it seeks to raise in advance of the trial of the facts; but the court cannot take cog[71]*71nizance of the attempt to do so, as tbe case now stands. Demurrer overruled; defendant to answer on or before tbe 11th day of March next; costs to abide the result.

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PUTNAM, Circuit Judge.

The court has scrutinized this record anxiously, hoping to be able to dispose of the point which the defendant has sought to raise, but it is unable to do so. The causes of demurrer assigned are that certain portions of the declaration are double, repugnant, ambiguous, and multifarious. The difficulty the court finds is that the parts to which the demurrer relates are merely inconsequential and immaterial, and therefore cannot, in the view of .the law, result in duplicity, repugnancy, ambiguity, or multifariousness; The declaration alleges that the cargo of wire became a total loss, by the perils insured against, and also that the plaintiff is entitled to recover for a total loss. The latter allegation has a proper relation to the first. Interjected between these is one that the cargo was abandoned, and also an allegation as follows: “That the loss of the said cargo, by perils insured against, amounted to more than one-half of the whole value of said cargo, as declared in said policy.” If, in lieu of this, it had been alleged that the loss amounted to more than one-half of, but less than, the whole value; that there had been an abandonment; and that, therefore, the plaintiff was entitled to recover a total loss, under the policy, —the case might have been other than it is. As there has been no cause of demurrer assigned for mere immateriality, the demurrer cannot be sustained. Any views which the court might now express touching the claim that, under the allegation of a total loss, the plaintiff cannot recover for a constructive total loss, would not relate to any issue now before us, and would not, therefore, be binding at the trial on the judge who may preside at that time. Therefore, while, according to the rules of the common law, under a declaration for a total loss a claim for a constructive total loss can be recovered, the court would not be justified in now passing on the question, as it arises under the statutes of Massachusetts., So far as the demurrer is concerned, the second count f ollows the first.

It may be that by a special answer, or otherwise, the defendant can compel the plaintiff to meet the issue which it seeks to raise in advance of the trial of the facts; but the court cannot take cog[71]*71nizance of the attempt to do so, as tbe case now stands. Demurrer overruled; defendant to answer on or before tbe 11th day of March next; costs to abide the result.

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Bluebook (online)

66 F. 69, 1895 U.S. App. LEXIS 3049, Counsel Stack Legal Research, https://law.counselstack.com/opinion/washburn-moen-manufg-co-v-reliance-marine-ins-circtdma-1895.