Whalen v. Western Assur. Co. of Toronto

• Decision Date: 14 February 1911
• Docket Number: 162.
• Citation: 185 F. 490
• Parties: WHALEN et al. v. WESTERN ASSUR. CO. OF TORONTO.
• Court: U.S. Court of Appeals — Second Circuit

185 F. 490

WHALEN et al. v. WESTERN ASSUR. CO. OF TORONTO.

No. 162.

United States Court of Appeals, Second Circuit.

February 14, 1911

Carpenter & Park (J. E. Carpenter, of counsel), for appellant.

Hyland & Zabriskie (Nelson Zabriskie, of counsel), for appellees.

Before LACOMBE, WARD, and NOYES, Circuit Judges.

LACOMBE Circuit Judge.

The sole defense relied upon here is based on the following clause of the policy:

'And in case of any loss or misfortune it shall be lawful and necessary to and for the assured, his or their agents factors, servants and assigns, to give to the assurers prompt notice of the disaster, and a failure to do so will render the assurers free from any liability for loss or damage under this policy.'

The facts relevant to this defense are as follows: Whalen, the owner of the boat, lived at Whitehall. At the close of the season of 1907, about the middle of November, he laid her up in a cove near Burlington on Lake Champlain, where other boats were laid up, all under the charge of a ship carpenter named Pashby who lived in the vicinity. During the winter, as the temperature changed, the cove froze over or thawed out. There is testimony that as late as March 19, 1908, the boat was apparently in good condition, but soon after she began to leak, and, although Pashby and others worked the pump on her the water kept gaining, and he saw that he could not keep her up, whereupon he wrote to Whalen that the boat was sinking. Pashby says that Whalen replied that it was impossible for him to come, and to do the best he could. He could accomplish nothing, and three or four days later she sank. This date is fixed as March 29th. Other letters were written to Whalen after she sank. On April 7th or 8th he arrived at the cove and saw the Eaton. He procured men, hand pumps, and ropes began pumping about the 14th or 15th, and worked for several days trying to raise her, but without success. Towards the end of April he abandoned these efforts and secured another boat in the cove which he pumped out and took to Benson, a place about 10 miles north of Whitehall, where he loaded her with lumber for New York; finished loading about the 1st of May, and reached Whitehall from Benson pretty close to the first boat on the opening of navigation, 9th or 10th of May. Until he had brought this other boat down to Benson, he had sent no word of what had happened to Bascom or to any one else representing the company. There is a controversy as to the date when he did inform Bascom of the situation. Libelant in one place says it was about April 27th. Elsewhere he gives it as six or seven or eight days before he arrived at Whitehall with his boat, which would make it some time between the 1st and 3d of May. Bascom testified that the interview did not take place until some time between May 15th and 22d. We are inclined to think the latter statement is more accurate. Libelant seems to be quite uncertain as to all the dates he gives; but it is unnecessary to decide which witness is right in that particular. Fixing the date most favorably for libelant, three weeks elapsed after he knew the boat had sunk in the ice before he gave notice of the disaster, either by mail, telegraph, telephone, or word of mouth, although Whitehall, where Bascom was located, was but 90 miles away, easily reached by mail or telegraph.

The two men do not agree as to details of the conversation between them when libelant informed Bascom that the boat was sunk and he had tried unsuccessfully to raise her, but they do agree that the latter said the company was not liable and would not pay the loss.

Libelant contends that because of denial of liability on the part of the company it was not incumbent upon the assured to give the notice required by the clause above quoted. But the case upon which he mainly relies (Knickerbocker Life Ins. Co. v. Pendleton, 112 U.S. 696, 5 Sup.Ct. 314, 28 L.Ed. 866) held merely that denial of liability waives the giving of the formal proof of loss which the policy provided for. The court approved of a charge of the trial judge, which instructed the jury:

'As to the proof of loss not being filed, it is conceded notice of the death was given. If, when that was done, the agents of the company repudiated all liability and informed the parties that the policy had lapsed, then no proof of loss was required by them, and the failure to file it cannot alter the case.'

Other cases cited on the brief are to the same effect. In Knickerbocker Life Ins. Co. v. Schneider, 131 U.S Append. clxxii, 25 L.Ed. 694, the pleadings were found to raise no direct issue upon the fact of notice...