Bosley v. Chesapeake Insurance , 3 G. & J. 450 ( 1831 )

Doksey, J.,

delivered the opinion of the court.

The first and third bills of exceptions^ on the part of the appellant haying been waived or abandoned^ our duty is to inquire whether there be such error in the County Court’s instruction to the jury, or their refusal of the appellant’s .prayers in his second bill of exceptions, as would require ,a reversal of :their judgment? The propriety of the court’s denial of the several instructions which they were called on to give, will be first examined. - e

The- first prayer presents an hypothetical statemétíf of facts, not enumerating, all which had been proved, but predicated upon, and assuming the existence of those material facts, of which competent and adequate testimony had been offered, and. the finding whereof, was indispensible to a re-1 covery. These facts set forth in the bill of-exceptions, were as fully in the view of the eourtj in making a disposition of.the points presented, were as neceSsárily Subjects of consideration, as if they had been incorporated- in the statement itself. The instruction requested ’ could not for a moment have been sustained ; nay, could not have been asked for, but upon this assumption.

The abandonment, one of those important links in the chain of testimony, is expressly referred to, and was to be regarded in the same manner, as if the proof, by which it was established, had been set out in the statement. If no sufficient abandonment had been made, the instruction prayed for could not have been granted. The finding of the facts enumerated, could of themselves form no basis of a recovery, as for a total loss. Before the court could have instructed the jury, that the plaintiff was entitled to such a verdict, they must of necessity have determined, that it was warranted by the abandonment. The sufficiency of the abandonment, the correspondence of its grounds with those relied on as evidence of loss, were clearly submitted for, and settled by the determination of the court below ; and notwithstanding the act of 1825, in reviewing their judgment, form fit subjects for discussion before this tribunal.

The insured is not compelled in any case to abandon, he has an election, which rests in his discretion ; but no right to claim as for a total loss in its nature technical or constructive, can vest, until such an election be made. He can only abandon for a total loss; and his election to do so, can never be made until the receipt of the advice of the loss. It has been urged by the appellees, that the intelligence of loss communicated in this case, was of such an unauthentic nature, that the assured was not authorised to rely on its verity, and deal with the underwriters accordingly. But we cannot yield our assent to this suggestion. The information received would have carried conviction to any reasonable mind; was positive, untainted by any suspicions as to its truth ; and if the facts whieh it made known, justified his abandoning, the insured was not bound to wait for more authentic advice.

Were the underwriters liable for a total loss, under (he abandonment in the case , at bar, is the first question to be disposed of. Before the expression of our opinion, let us refer to some of the authorities pertinent to this subject. In 1 Johns. 181. Suydam, et al. vs. Marine Ins. Co. the court say, abandonment must be “ on sufficient grounds, and the accident occasioning it, must be described with certainty, so as to enable the underwriter to determine, whether he be bound to accept. If he be not, he will of course refuse, and neglect to take measures for its preservation, which is one object of making an abandonment.” A similar principle is found in the court’s opinion, in King vs. Del. Ins. Co. 3 Wash. C. C. Rep. 309. It is incumbent on the insured to state to the underwriter a sufficient reason for the offer to abandon. “ This is clear from the nature and use of an abandonment. The underwriter should have an apportunity of judging whether he is bound to accept the offer or not. If bound, that he may do So at once, and take proper means for the preservation of the property.” As the assured must at the time of abandoning, state the grounds upon which he makes the abandonment, it is necessary, in order to make the act valid, not only that the existing facts should constitute a total loss; but also that the assured should be informed of the accident, which occasions the loss. He cannot abandon merely upon the apprehension, that a total loss may have taken place, and afterwards establish his right to do so, by facts that subsequently come to his knowledge, and which were wholly unknown to him at the time of making the abandonment. Phil. Ins. 440. “The underwriters ought to know the grounds of the abandonment, that they may determine whether to accept. Accordingly, the assured must at the time of making the abandonment, make known to the insurers, the reasons for which he abandons. He cannot avail himself of any other ground, than that alleged by him at the time of abandoning; and if there be any other facts, (either known, or not known to him at the time,) on which an abandonment would be necessary, in order to entitle him to recover for a total loss? he must abandon anew, before he Can recover for such a loss, on account of those facts.” Phil. Ins. 448. “ The facts of which the insured is informed, and which he makes known to the underwriters, as the ground of his abandonment, must constitute a total loss.” Phil. Ins. 458.

From the authorities referred to, as well as upon principles of reason, justice and policy, we deem this rule undeniable, that the information which is sufficient to authorise the assured to give notice to the underwriters, that he abandons, must be of such facts and circumstances, as would sustain the abandonment, if existing in point of fact, at the time the notice is given. The mere stranding of a vessel, forms not of itself, a substantive ground of abandonment. The right to abandon on such an occurence, depends on the attending circumstances. If she be thrown so high upon the beach that her removal is impracticable, or if on a shore where the means of relief are unattainable, or where the exertion of those means would incur an expenditure exceeding half her value, then is the assured at liberty to abandon. To sustain this doctrine so constantly met with in the decisions of courts of justice, and in writers upon the law of insurance, it cannot be necessary to refer to authorities.

What was the intelligence communicated in this case ? Simply this, “ I observe by the Boston newspaper of the 29th January, that the ship Geni. Smith, insured in your office, per policy No. 7661, was driven ashore in a heavy gale of wind, the 6th December, and by a Charleston paper of the 26th January, that on the 13th she was not got off. In so dangerous a situation as Ilelvoet Roads, it is to be feared that a total loss has ensued.” It has not been contended, that the fears of the insured are equivalent to a total loss, and constitute a ground of abandonment. There is no such head in insurance law, as abandonment quia timet. Do the facts disclosed in the notice show a total loss, either actual or technical ? for unless they do, the abandonment is wholly defective. If mere stranding be not a total loss, there is no total loss disclosed by the notice. The only facts upon which such a conclusion could rest, are, that in a gale of wind, the ship was driven on shore, and had remained there seven days. But whether she remained there from choice, to make some inconsiderable repair, as for example, to reship her"'rudder,' or from necessity; whether, she. was thrown one foot, or one mile, from the channel of the rivej'; whether she laid high.and dry, or in ten feet water ;[ whether she had sustained any damage by the accident; whether any effort had been made to get her afloat; or whether the accomplishment of that object was impracticable, or could be accomplished by the expenditure of ten dollars, or ten thousand dollars, were matters on which the insurer were left to speculate in utter darkness. Can it seriously be urged that the underwriters, by the tenor and spirit of their contract, under such circumstances, were.bound to have accepted the abandonment, and . thus become the purchasers óf the ship, at the valuation in the policy ? If there be any case to sustain such pretensions of the appellants, it has not been cited in the argument, and certainly has. eluded the researches of the court. .

■ It has been contended, “that an abandonment does not depend on the information given at the time it is made, but ■ on the facts, or state of the property, at the date of the abandonment.” This position cannot be sustained; it has -neither principle nor authority to support it. If it were -true, it"would follow that an abandonment would be effec- . tual where a loss had occurred, although a knowledge pf such-loss, had never reached either the insurer or insured^— .''that the insured need not make known the intelligence he ■has received of the disaster—that information of the,slightest impending peril would support an abandonment, if at i thei time. it-.was made, the condition of the thing insured constituted a total loss;—that such doctrine is.at war with every adjudicated casé oh the subject, it can hardly be necessary to remark. Suppose both'the insurer and insured to have resided at Rotterdam, or in the immediate vicinity of the place of stranding, and that on the 13th of December, (the time when the facts relied on, as showing a total loss,) the abandonment had been made; and made too, not only on the grounds stated in the notice, but upon all the circumstances connected with the disaster, could it be insisted that a total, loss then existed, in point of fact, or was “in the highest degree probable,” or that the moral certainty of its occurrence was such, that upon principles of reason or law, it might be assumed as having already taken place? The ship lay on the bank, free from injury, save an unimportant one to her rudder, which had been repaired. Nothing was required to place her in a state of safety in the stream, but a shifting of the wind to the northward or westward. Could the loosest dictum that ever escaped a judicial tribunal, make such a state of things a total loss ? If the right of abandonment existed not where the contracting parties resided, at the theatre of the disaster, it derives no additional strength from the fact of their residence being several thousand miles distant. The claim to abandon, depends altogether upon the nature of the intelligence received, which must be communicated to the assurer; but here it is attempted to sustain this abandonment, not upon the facts received by the assured, and made known to the underwriters, nay, not even upon the actual condition of the property insured, at the date to which the intelligence relates, hut upon accidental contingencies, transpiring a month or two months after-wards, and never previously submitted to the insurer, as the basis of the claim. The sufficiency of an abandonment rests not merely on the occurrence of facts, which constitute a total loss, but upon their knowledge by the assured, the communication thereof to the assurer, with an offer to abandon, and the continuance of the disaster at the date of the abandonment.

Were we to extend the right of abandonment to the extent to which it has been insisted on in the. present trial, it would be carried much beyond any limits heretofore prescribed to it. According to our view of the subject, this right has been already expanded as far as expediency or justice will tolerate. A policy of insurance is a contract of indemnity, not of saie. if, on light grounds, or mere probabilities of loss, a right of abandonment arises, you convert underwriters into traders, and impose on them, if they regard the interests they represent, the duty of inquiring into the nature and value of the cargo insured, the grounds upon which rests the calculation of profit from the commercial adventure, and all the probable consequences of a coercive sale, at a port intermediate the termini of the voyage; thus compelling the insured to make public that commercial intelligence, upon which his adventure is predicated, and upon the concealment of which depends the success of his enterprise. There is much good sense in the remark’ by C. J. Willes, in Wittes’ Rep. 640, “ that insurances were contracts of indemnity, arid not for profit or gain;” and there is equal wisdom in what is found in a learned commentary on insurance law, Hughes’ Ins. 415.:—“It is clear that a policy of insurance, both in its object and form, is merely a contract of indemnity. It contains no stipulation respecting abandonment, has its origin from the nature of the contract, as a contract of indemnity. The underwriter does not stipulate, under any circumstances, to become the purchaser of the thing insured; it is not supposed to be in his contemplation; he is to indemnify only. This being the principle, a practice or doctrine which is calculated to break in upon it, ought to be narrowly watched.”

The cases of Peele et al. vs. The Merchants’ Ins. Co. 3 Mason, 27, and Fontaine vs. The Phœnix Ins. Co. New York, 11 Johns. 293, have been much relied on by the appellants. But is there the slightest similitude between the nature of the facts shewing the loss in those cases, and those which belong to the case before us ? In the case in 3 Mason, the Argonaut was cast upon the rocks, bilged, the tide flowed freely through her, her sails and rigging cut from thé masts, all her furniture removed for safety, the master and crew had deserted her expecting her to go to pieces, if the wind had veered to the north-west, her destruction inevitable, and her situation was so desperate, that there remained of her recovery, but a glimmering ray of hope; under these circumstances, Justice Story held the loss to be total, in accordance with the opinion of Lord Ellenborough, who in Anderson vs. Wallis, 2 M. and S. 240, says, “there is not any case, nor principle, which authorises a total loss, unless where the loss has been actually a total loss, or in the highest degree probable, at the time of abandonment.” In the case in 11 Johns, the vessel was driven against the rocks at St. Pierre, Martinique, and beating against them some time, was driven so high on shore, that when the gale subsided and the sea became calm, there was only two or three feet water on the out side of her. The master, mate, and supercargo, made depositions that it would cost more than her value to get her off; that a survey was had of the vessel, and she was condemned, and sold: the purchaser afterwards got her off at an expense of ¡$500. The court held, that her situation being desperate at the time of the survey, the subsequent good fortune of the purchasers did not destroy the plaintiff’s right to recover for a total loss, unless the jury believed she could have been got off for half her value. It is unnecessary to draw the strong lines of discrimination existing between the cases cited, and that now under consideration. They are authorities against the appellant’s right to recover.

This first prayer appears to have been framed, and it was so argued before us, as if intended to call on the court to decide, that “imminent danger of being wrecked and lost, ” justified abandonment, and recovery for a total loss. In this aspect of the prayer, we entirely concur with the County Court in its rejection : mere “imminent danger” of a total loss, never has been deemed sufficient ground to entitle the assured to a verdict for a total loss. The courts have only gone thus far in the cases, where danger was not only imminent, but the loss in the highest degree probable.

We wish to be understood as not expressing any decided opinion in this case, whether if all the circumstances connected with the stranding of the General Smiith, from the 5th of December, 1822, to the 6th of February, 1823, or to any previous day, had been inserted in a notice of abandonment, delivered to the underwriters, that the plaintiff would not be entitled to recover for a total loss, but as at present advised, we should deliberate much, and long, before our minds could be brought to the adoption of such a conclusion.

The second prayer has been discussed, as if presenting the question, whether the loss were not total, “as by the stranding of the ship, she, for all the useful purposes of a ship for the voyage, is, for the present, gone from the control of the owner, and the time when she will be restored to him in a state to resume the voyage, is uncertain.” As conclusive of the affirmative of this question, and to show that the right to abandon is immediate and complete, the appellant relies on the rule laid down by Justice Story, in thfe case of Peel et al. vs. The Merchants’ Ins. Co. 3 Mason, 65, where a learned and elaborate review is taken of most of the English and 'American cases on the subject, in the conclusion of which, that enlightened jurist says, “the right to abandon exists, whenever, from the circumstances of the case, the ship, for all the useful purposes of a ship for the voyage, is, for the present, gone from the control of the owners, and the time when she will be restored to him in a state to resume the voyage, is uncertain, or unreasonably distant, or the risk and expense are disproportioned to the expected benefit, and objects of the voyage.” This literal construction, and technical application of the rule, is wanting in candor and justice to the learned judge. His rulé was extracted from the adjudicated and admitted principies and cases that he refers to, which immediately precedé if, and on which he relies as its basis. It ought nbt, therefore, in fairness, to be applied to cases in no wise analogous in their circumstances: but admitting the eorréctness of its application to the perils enumerated, embargoes, blockades, detentions, submersions, and shipwrecks, which cannot be repaired in the ports where the disasters happen, it surely is not a fair, or rational interpretation of the judge’s opinion, to embrace within it the ease of mere stranding, when in a preceding part of the same opinion, he states it to be a position “incontrovertible, that the mere stranding of the ship is not, of itself, to be deemed a total loss, so as to entitle the insured immediately to abandon.” If, however, the true exposition of this rule, be such as is given it by the counsel of the insured, we must be excused in withholding from it our approbation. They allege that the General Smith being aground, “ for all the useful purposes of a ship for the voyage, is, for the present, gone from the control of the owner, and the time when she will be restored to him, in a state to resume the voyage, is uncertain,” and therefore the insured may rightfully abandon. By the same system of reasoning, every stranding would confer the same right; as the time of disentanglement from such a peril, is ever a matter of uncertainty. Before we could yield our assent to the rule thus literally expounded, the words, “and the time when she will be restored to him in a state to resume the voyage is uncertain,” must be stricken out, and their place supplied by the following insertion : “and that she will, be restored to him in a state to resume the voyage, is highly improbable.” But we must not be understood, as recognising this literal and forced construction of an isolated section of the court’s opinion. It is manifestly contradicted both by what precedes and follows the introduction of this clause: mere stranding being in limine, alleged to be no ground for abandonment, and the first sentence that follows the rule, and which was designed to illustrate and announce its true meaning and operation, and the ground upon which it was predicated, declares, “that in such a case the law deems the ship, though having a physical existence, as ceasing to exist, for purposes of utility, and therefore subject to be treated as lost.” Could such an absurdity be imputed to the law, that it should deem a ship as ceasing to exist for purposes of utility, and be treated as lost, because she was grounded on a beach, from which she would be extricated by the first favorable change of the wind ? Such was the condition of the ship, now the subject of litigation, at the time she was seen by those whose reports of her disaster reached the owner, and formed the ground of his abandonment. But it is an useless consumption of time, to inquire whether the facts relied on in the second, third, and fourth prayers of the appellants, in contemplation of law, amount to a total loss. They were not made'the grounds of abandonment, nor are they consequences to have been anticipated, as necessarily flowing from them: the offer to abandon, having failed to show the condition of the ship desperate, her total loss, in the natural course of things, inevitable, or “in the highest degree probable,” was wholly invalid, and consequently, the very substratum of the plaintiff’s action Having failed, all prayers sanctioning his right to recover for a total loss, were properly rejected by the court.

Having disposed of the first branch of this case, the only remaining inquiry is, has the appellant any just reason to complain of the instrfiction given by the court to the jury. To justify the reversal of a court’s judgment, on the ground of their having given an erroneous instruction to the jury, it must be made appear, that the appellant actually, or probably, did sustain an injury thereby. No matter how erroneous the instruction, if it could work no prejudice to the appellant, it forms no ground for reversal. So far from the appellant being prejudiced by the court’s instruction, it conferred on him an essential benefit, to which, in our view of the subject, he was not entitled. It permitted the jury, upon a state of facts which they were left at liberty to find, to give the appellant a verdict as for a total loss, whereas the direction ought to have been, that from the insufficiency of the abandonment, they were not authorised to give such a Verdict, no matter what the proof might be. Therefore, although we disapprove, in part, of the instruction given to the jury by the court below, we deem it no fit subject of complaint to the appellant.

Concurring with the County Court in their rejection of the appellant’s four prayers, in the second bill of exceptions, and seeing no ground of reversal in their instruction to the jury, we affirm the judgment.

JUDGMENT AFFIRMED.

Note—After the verdict in this canse, the plaintiff moved for a new trial; and filed in court as the foundation of that motion, the depositions of nine of the jurymen,—declaring, that they had considered in making up their estimate of the plaintiff’s damages, that he had received the proceeds of the sale of the ship General Smith, at or about the time of her being sold by the Marshall, in July 1823, and that he had been accordingly charged with interest upon such proceeds, from the supposed time of its receipt by him, until the rendition of the verdict, and that they believed the other jurors acted upon the same views__The faet was, that the plaintiff received those proceeds in 1827. The motion for a new trial was resisted, upon the principle, that the deposition of a juror, was not competent evidence to prove this mistake; and the whole subject was most elaborately discussed.

The County Court, Archer, J__I have carefully examined the eases cited in the argument of this case, and am of opinion, that the testimony of jurors cannotbe heard to impeach their verdict, whether the conduct objected to in the jury, be misbehaviour or mistake. The New York cases are full to this point—so are the cases in England, since the revolution, though very contradictory before that period. The cases in 2 T. E. in 6 Cowan, and 1 Wendall, decide, that no evidence can be received from the jury, to show mistake. I think these decisions right, because, were the law different, an inquisition might be instituted in every case, into the grounds and motives of a jury for their finding, in order to ascertain whether, in coming to given conclusions, they bad not mistaken facts. Verdicts of juries, would then in all cases, be uncertain. To permit such inquisition into the motives of juries, would, it appears to me, be against public policy, and lead more frequently to the prostration of justice, than to its preservation.

Independent of the above ground, I should be opposed to a new trial in this case. Treating the loss of the plaintiff as partial, and not as total, (for with this branch of the jury’s finding, no fault lias been found,) I am not satisfied that injustice has been done to the plaintiff. He has obtained á verdict for§5786, and lias received 04892 from the sale of the vessel, making in all, the sum of 010,478.—Now when the probable deterioration of such a vessel, on such a voyage, is taken into consideration, 1 am.by no means clear, that the indemnity of the plaintiff has been inadequate. Besides, considering this as a partial loss, the time when Mr. Bosley received the pro"ceeds of the sale, would seem to be entirely immaterial to any just determination of the case,—for if the loss were partial, the property in the vessel and its proceeds always remained in him, and he might employ them, or let them remain idle, without at all affecting the subject matter of inquiry ,here.

The motion for a new trial is overruled.