4 Mart. (N.S.) 640 | La. | 1826
delivered the opinion of the ... court. 1 his action is brought on a valued policy oi insurance. I he plaintiffs claim the whole amount. The defendants pleaded the general issue. The cause was submitted to
The policy is in the usual form, and contains at the bottom, the common list, of memorandum articles. Underneath this enumeration there is written:
“ This insurance is declared to be on cargo, valued at $11,000.
“ Mules on and under deck against stranding or a total loss.”
The defendants and appellants have madc-in this court, the following points:
1. The valuation of the cargo, made by the plaintiffs was erroneous, extravagant and void. Phill/ps on Insurance* 300, and 307.
2. The risk insured against was not full) and fairly represented by the . plaintiffs. Ibid. 80 to 83.
3. The constructive total loss is excluded in all memorandum articles. Parke, 112, 113, to 115; Phillips, 483 arid 488; 8 Cranch, 39, and 46 to 50 ; 1 Wheaton, 219, and 224 to 232 ; 2 Maule & Selwyn, 371 to 375.
4. Tt»e loss insured against, even if the insurance had been in the body of the policy, was an absolute, aiturMy:jor.:;pljysical Total
5- ln the construction of a policy of insurance, the written controls the printed part; and in the present policy the risk insured against is specified in writing. Phillips, 18 and 70; 4 East, 130, 135, and 140.
6. The destruction, or physical total loss of a part of the cargo insured, if it consist of memorandum articles, or articles insured against total loss only, does not amount to a total loss, so as to enable the assured to recover for the part so lost or destroyed. 1 Wheaton, 219; 7 Common Law Rep., 39 to 43; 3 Ibid. 127.
7. In case of a total loss, the valuation fixed in the policy remains, unless overrated, but a partial loss opens the policy, and the value of the thing lost must be proved. Phillips, 305 and 313; Park, 111; Marshall, 203.
8. The case ought not to be remanded, inasmuch as it is admitted the vessel arrived at her port of destination with part of the cargo.
The third, fourth, fifth, sixth, and seventh points will be considered together, as they all depend on the proper meaning to be attached to the words used at the foot of the policy: “ Mules on or under deck, against stranding or a total loss.”
ft has been urged on the part of the plaintiffs, that mules are not memorandum articles. They are certainly not generally considered such, but there is nothing which prevente
Many cases have been brought before the court, in which courts of justice have given a construction to the expressions used in policies, in relation to memorandum articles. On several of these it seems to have been considered, that there must be a loss of the whole of the thing insured, to enable the as-surer to recover; that if any part of the thing protected by the policy reach the port of destination, the insurers were not responsible. In others, it has been held that where the cargo consisted of separate and distinct objects, a total loss of any part of It would enable the assured to demand the value of
The weight of authority appears to us nearly alike. We therefore feel at liberty to adopt (fiat construction which will best meet the intention of the parties; for unless there be some technical principle of law which stands in our way, the obligation is imperative on us to do so.
It has been contended with great force, that the decisions of those court which have held that a total loss of any part, was a total loss, within the meaning of the policy were contrary to reason, and the very meaning of the words used; that such doctrine was confounding a partial with an entire loss; that the former was confessedly excluded from the risk, and yet the insurers, by a change of terms, were made responsible-for it; that a part was less than the whole; and that the loss of the whole yvas only insured against.
This reasoning would be unanswerable, if by the expressions a total loss, were necessarily meant a loss of the whole cargo, insured. But we do not understand, that in relation to
The evidence lias satisfied us beyond doubt, that such was the intention of the parties to this contract. W e do not believe that the premium would have been paid, if the condition had been understood by the insured to be, that if only one out of all the mules he put on board, reached the port of destina
According to these principles, the insurers were only responsible for the mules that perished before the port of destination was reached. As the policy, therefore, is opened by a loss less than the whole, we had doubted whether the verdict was not for a larger stun than the law would sanction; but, according to the latest cases, in adjusting the loss on a valued policy, the practice seems to be, that the amount of injury sustained by a loss of the part, is made in reference to the valuation of the whole in the policy. This course is certainly the most equitable, where the agreement, in its origin, was free from fraud. The jury do not seem to have erred. Phillips on Insurance,p. 313—319.
It is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.