Fuller v. Kennebec Mutual Insurance , 31 Me. 325 ( 1850 )

Howard, J.

The only question presented at the trial was, whether the plaintiff was entitled to recover, on a policy of insurance, for a partial, or for a constructive total loss of his vessel.

The verdict was for the plaintiff, for a total loss, under instructions from the court to which no exceptions have been taken, and which must now be deemed to have been appropriate. But, by the terms of the report, the verdict is to be set aside, if any of the requests for instructions, which were refused, should have been granted.

1. Though the vessel was repaired by the purchaser at the port of disaster, and soon after the accident, still that fact does not show that the sale by the master was not necessary and justifiable. If the sale was necessary, under the circumstances in which the vessel was placed by the disaster, it constituted a total loss, and the subsequent success of the purchaser in repairing and navigating her, cannot invalidate the proceedings, and convert the total into a partial loss. Gordon v. Mass. Mutual Fire and Marine Ins. Co. 2 Pick. 249, 265; Hall v. Franklin Ins. Co. 9 Pick. 483; 2 Phillips on Ins. 235; Patapsco Ins. Co. v. Southgate, 5 Peters, 604; 3 Kent’s Com, 321, 324, 325; Peel v. Merchant’s Ins. Co. 3 Mason, 27; Bradlie v. The Maryland Ins. Co. 12 Peters, 378, 397 — 8; Holdsworth v. Wise, 7 Barn. & Cress. 794; Naylor v. Taylor, 9 Barn. & Cress. 718. The right to sell, as well as the right to abandon, is to be determined by the state of facts at the time, and not by subsequent events ; and in either case, the rights of the parties become vested when the sale or abandonment is properly made. Rhinelander v. Ins. Co. of Pennsylvania, 4 Cranch, 29; Marshall v. The Delaware Ins. Co. 4 Cranch, 202; The Brig Sarah Ann, 2 Sumner, 215. This request was therefore properly-denied.

2. It might not have been erroneous for the presiding Judge to grant the second request, but he might have declined to do it, as tending to embarrass the jury, and to produce unnecessary delay and perplexity in the proceedings of the court. If this request had been granted, and the instruction given, and the jury had disregarded it, the verdict could not be disturbed on that account; for they had a right to decline finding any other than a general verdict. Devizes v. Clark, 3 Adol. & Ell. 506; R. S. c. 115, § 66.

3. If the sale by the master was necessary, and warranted by the rules of law, it would constitute a technical total loss, Without an abandonment. After such sale, the insured has nothing to abandon, and a subsequent offer to abandon, or an abandonment in form, cannot affect the right to sell. This requested instruction was, therefore, properly refused.

4. If the sale was unnecessary, and if it effected no legal transfer of the vessel, the subsequent offer to abandon, on the 22d of April, might have been effective and sufficient to authorize a recovery for a total loss, if the partial loss exceeded half of the value, and the abandonment had been seasonably and properly made. The right to abandon is not necessarily lost by an attempt to sell.

' 5. The plaintiff was not required to furnish an adjustment as of a partial loss, in order to recover for a total loss, as this request implies. The report of the surveyors, estimating the damages sustained by the vessel, and condemning her, and recommending a sale, was not conclusive upon the, underwriters, but the presumption would be in favor of its correctness. The plaintiff must establish his right to recover, as in other cases, by evidence, and this he might do with, or without an adjustment.

The motion to set aside the verdict cannot prevail. The proof is conclusive that the vessel was injured by the perils of the sea, that the master in good faith called for a survey, that the surveyors, upon examination, condemned the vessel, and recommended a sale, estimating the cost of repairs at ^2980; and that the master acted upon the advice of the surveyors, and sold the vessel at the port of distress, (Vera Cruz.) at auction, for $300.

The testimony does not impeach the conduct of the surveyors, or of the master, but some portions of it tend to show that the cost of repairs might have been less than half of the value. Other portions, however, tend to establish a different conclusion, and we cannot say that the verdict was not justified by the evidence. Exceptions and motion overruled.