One of the contentions of the defendant in this case, raised as an issue by the pleadings and supported by proof, was that it had made a tender of the stolen automobile to the plaintiff and, in connection therewith, had offered to make him good as to any loss of value due to injury to it. This issue the trial court entirely ignored in its charge stating the duty of the defendant to be to return the automobile in substantially as good a condition as it was when it was stolen. I do not now contend that the claim of the defendant was sound, but I refer to it to *Page 525 emphasize the fundamental error in the trial of this case. What the rights of the parties were with reference to the return of the automobile could only be determined upon the basis of the terms of the policy of insurance. Yet counsel tried the case and the trial court submitted it to the jury without the policy being put in evidence. Ordinarily we do not, and should not, regard matters of possible error not made the basis of a claim in the trial court. But it is just as unreasonable to attempt to adjudicate the rights of parties in the absence of the instrument which alone can fix them, as the Supreme Court of the United States says that it is to attempt to determine a controversy in disregard of a controlling statute overlooked upon the trial.Fourth National Bank v. Francklyn, 120 U.S. 747, 751,7 Sup. Ct. 757; see Cunningham v. Cunningham,72 Conn. 157, 160, 44 A. 41. The proper course would have been to order a retrial, that the case might be so presented as to enable the rights of the parties to be determined with certainty.
In this opinion HAINES, J., concurred.