
    Bernard McLain, Respondent, v. The British & Foreign Marine Insurance Co., Appellant.
    (Supreme Court, Appellate Term,
    March, 1896.)
    1. Marine insurance — Canal boats — Perils of the sea.
    In an action upon a policy of marine insurance, held, that the sudden sinking of a canal boat while being towed, down the North river was not conclusive evidence of unseaworthiness and that there was room for finding that the loss was from a peril of the sea, the evidence being that there were shad poles in the river at the place of sinking and that another vessel had been lost from collision with such obstructions.
    2. Same — Abandonment
    Where a policy provided that there could be no' abandonment except in case of absolute total loss, it is not ■ necessary, in case of constructive total loss, to prove abandonment. ............ -
    3. Same—"Total loss — Evidence.
    An expert may testify that the vessel was a “ total loss.” An objection that such evidence was a “ conclusion” does not raise the question of its admissibility, since all opinions are conclusions. ■
    4. Witness— Credibility — Evidence.
    A witness may, to rebut an inference sought to be drawn that his testimony at the trial is an afterthought and a fabrication, be allowed to testify to unsworn, statements of similar import, made previously out of court. 1.
    5. Trial — Motion to dismiss.
    A motion to dismiss because the complaint omits some allegations, claimed to be necessary, is too late after evidence on the omitted point has been received without objection.
    
      Appeal by the 'defendant from an affirmance by the City Court, General Term, of a judgment in favor of the plaintiff, entered upon the verdict of a' jury. The action was to recover $1,000 upon a policy of marine insurance for the loss of the canal boat “Agnes H,” which stink off Weehawken, with a cargo of coal, while towing from Guttenberg, on September 16, 1893.
    Stewart & Macklin, for appellant.
    Hyland & Zabriskie, for respondent.
   Daly, P. J.

As the vessel suddenly sank from a cause which the captain was unable to explain with certainty, the contention is that she was unseaworthy when she commenced her voyage, and was not lost through any peril of the sea insured against. There was, however, sufficient evidence that she was in good condition when the voyage commenced, and the testimony that she suddenly sank in smooth water, after heaving as if something struck her — as if she were lifted by a dead swell — showed that she did not become leaky after starting, but that her sinking was the result of accident. The circumstances warranted the jury in believing that the theory of the master, was correct, that she-came in contact with a hidden obstruction in the river. He testified that there are always, in the neighborhood in which this accident occurred, submerged shadpoles broken off by tows and by ferry boats going through them at night, and that he had experienced two accidents from such obstruction to boats under his charge. It would be unreasonable to expect, in every case of marine disaster, the most satisfactory proof of the. cause. The case was, therefore, properly submitted to the jury upon the questions to which the testimony was relevant, and there only remain to be considered the appellant’s exceptions.

A motion to dismiss, was made at the close of plaintiff’s evidence,- on the ground that the complaint did not allege seaworthiness. The objection came too late, as proof of seaworthiness had been already received without objection. .Dismissal was also asked because the plaintiff had made “ no proper abandonment ” to the defendant, and because there was no proof of abandonment. The motion failed to. disclose the point now made, that the policy required an abandonment in writing. That ground shonld have been urged at the trial,- if relied upon. Abandonment was not made by the contract a condition of recovery.

The policy provides that the insured shall not have a right to abandon the vessel except in case of absolute total loss. . This, if enforced, would leave the insured remediless. Under the authorities, - an absolute total loss entitles the assured to claim the whole amount of the policy from the underwriters, while a con-, structive total loss entitles him to make such claim on condition of giving notice of abandonment; the object of' abandonment being to make a constructive total loss a loss absolute; 2 Amould, chap. 8.

In this case the boat was raised and found to be so injured as to be past repair. It was, therefore, a constructive total loss. “A constructive total-loss takes place when the subject insured is not wholly destroyed,, but its destruction is rendered highly probable, or the privation of it, though not quité irretrievable,, is such that its recovery is either exceedingly doubtful or too expensive to be worth the attempt.” It is conceded that the present is a case of constructive total loss, and if there can be no abandonment, there can never be loss absolute, and the "policy never becomes enforceable. A construction of any of the terms of a contract of insurance which, defeats its whole object is not'to be allowed.

The other exceptions relied upon by appellant relate to the admission of testimony. An expert, examined.by plaintiff, was permitted to.answer the question whether the vessel was a total loss. He was first asked whether she. could be repaired, and, he answered she could not. Thé defendant’s objection was that the question called for a conclusion, but all opinions are conclusions, and the objection does not raise the question now argued, that expert testimony of this- character was inadmissible. An expert is permitted to state whether a' vessel is- “ seaworthy.” Baird v. Daly, 68 N. Y. 547. It was said that: “The jury are non-expert's, and with every fact which would enable a Skilled-man to determine the question of" seaworthiness, it-by no .means follows that they would make the proper inference and arrive at the correct, conclusion.” The opinion was allowed, although .it was upon the precise question which the jury were to determine, because it-involved the result of an examination which could not be fully communicated to the jury. Van Wicklen v. City of Brooklyn, 118 N. Y. 429. So a witness was permitted to say whether a vessel was safely moored. Moore v. Westervelt, 27 N. Y. 234. In cases of fire insurance, experts are permitted to testify . whether a certain addition to a building increases the risk; and in cases of" life insurance, physicians are allowed to testify that insurance on the life of a certain person was. a bad risk. Lawson’s Expert & Opinion Ev., chap. 3.

Exception was taken to testimony by the master of the vessel as to what he communicated to the surveyor at the time of making his protest concerning the causé of the disaster. In a protest, the witness merely stated that the vessel sprung a leak and sank. In his testimony upon the trial, he stated that she heaved as if something struck her; when cross-examined by defendant he was confronted with his protest. The plain inference sought to be drawn was that his statement on the stand was an afterthought. Under these circumstances, he was properly permitted in explanation to show that, when- making the protest, he also made a statement not differing substantially from his testimony upon the trial. Baber v. Broadway, etc., R. Co., 9 Misc. 20.

The judgment and order should be affirmed, with costs.

Mo Ad am and Bischoff, JJ., concur.

Judgment and order affirmed, with costs.  