32 Ala. 108 | Ala. | 1858
On the trial in the court below, it was a material question, whether the insured was justified in abandoning as for a technical total loss; and we shall, in the first place, -inquire whether, in the charges of the court in relation to that question, there is any error which entitles the underwriters to a reversal of the judgment. Those charges are reconcilable with and explanatory of each other-, and must be construed in connection with each other, as well as in connection with the evidence to
Construing the charges as above indicated, we understand, and the jury doubtless understood, (see Magniac v. Thompson, 7 Peters’ Rep. 348,) the expressions “practical men” and “reasonable men,” as therein employed, to refer to practical men and reasonable men as a class, and not merely to the persons who were on the boat at the time she was snagged and sunk, some of whom had testified as to her condition and the circumstances attending the injury. ¥e also understand, and the jury doubtless understood, the expression “ half her value in the market,” as employed in the explanation accompanying-the 8th charge asked by the underwriters, to refer to her value in the market at Mobile, the palace of repairs. At the time of the accident, Mobile was her port of destination, her home paort, the port of repairs, and the palace of the trial ; and, in the second charge, the court had distinctly made the right to abandon to turn on the question, whether “the injury to the boat was such that her repairs would cost more than half her value when repaaired, at the port of repairs.”
The underwriters contend, that the first charge excepted to put the case altogether on the opinion of practical men, and excluded from the jury the consideration of the facts. They treat that charge as if it had commenced as follows, to-wit: “If, in the opinion of practical men, the condition of the boat was such,” &c. But the charge does not so commence, nor does it convey the meaning which it would convey if it had so commenced. On the contrary, it clearly leaves it to the jury to determine for themselves — 1st, what was the condition of the boat; and, 2d, whether its condition was, in fact, such as to produce — that is, whether its condition was really sufficient to produce — in the minds of practical men gener
"We understand the other charges relating to the abandonment to assert, as applicable to this case, the following propositions, to-wit: That if the injury to the boat, occasioned by a peril insured against, was such that her repairs would cost more than half her value when repaired, at the port of repairs, then the assured had a right to abandon; that “ to recover for a constructive total loss, the injury must amount to half the value of the thing insured;” that it was the duty of the master and crew, to labor and travel in order to relieve the boat from her peril, and, if they failed in this duty, the assured cannot recover; but that they were not bound to do impossibilities, and if it appeared to practical men that the boat could not be saved, they -were justified in abandoning her, and were not bound to wait for the decision of the underwriters on the offer to abandon; that “the true condition of a vessel at the time of abandonment may be arrived at by evidence of the state of things derived from a subsequent attempt to raise and repair her: if the vessel has since been raised and repaired, at an expense of less than half her value in the policy, it is evidence that 'the assured had no right to abandon her.” It is evident, that, if there be any error in the last proposition, it is an ei’ror in favor of the underwriters, and, therefore, no ground for reversal on their appeal; and upon a careful examination of the authorities, our opinion is, there is no error in any of the other propositions.
In this connection, it is proper to state, that the last portion of 10th charge asked by the underwriters is in conflict with the principles above sanctioned by us, and was properly refused. The last proposition asserted in that charge, exacted too much of the plaintiff. It denied him the right to recover for a total loss, if the boat “ could have been” raised and repaired “at a cost not exceeding
In view of the evidence, and of the fact that the underwriters themselves agreed to pay, and did pay, to persons having no interest in the policies or in the boat, a certain amount for raising the boat and bringing her to Mobile, (her home port, port of destination, and of repairs,) we do not think they have any right to complain of the charge of the court, that “ in estimating the expense of repairs, the jury should take into consideration the amount paid by the insurance companies for raising the boat and bringing her to Mobile, if such expenses were fairly expended” (incurred.) — 2 Arn. on Ins. 1100, 1101, and cases cited in note (m) on the last cited page; 3 Kent’s Com. 323, 324, 330; 2 Phil. on Ins. § 1551.
If, upon the facts hypothetically stated in the 4th charge, and the uncontested facts of the case, the underwriters had'accepted the abandonment offered by the mortgagor, as soon as the mortgagee made known to them his assent to it, the acceptance would have invested them with the ownership of the boat, with all its chances— with everything that an acceptance of the most perfect and unobjectionable offer of abandonment could have given to them. "Where such an offer of abandonment is made, and the right of abandonment exists, the underwriters ought to be held to have waived every objection to the offer, which was known to them at the time, but not stated as a ground of objection, and which, if stated at the time, could have been promptly removed or remedied by the assured, and which does not deny the existence of a right of abandoment. Mere silence may not amount to an acceptance. But the silence of a party, whose duty it is to speak, may operate as a waiver. When his silence, however innocent in its origin, would operate ultimately as a fraud, if he were allowed the benefit which he claims from it, the law of insurance will not permit him “ to resist the claims of justice under the shelter of a rule framed to promote it.”
If the 9th charge asked by the underwriters had been given as asked, it would have authorized the jury to find
The exception to the 11th charge asked by the underwriters was -waived by the agreement of the counsel of the parties, sot out in the record immediately after that charge. The 14th charge asked relates to a case of “partial loss,” and need not here be considered, as the jury were “ requested by both parties to say in their verdict whether they found the loss total or not;” and, according to such request, found the loss to be a technical total
We find no reversible error in the record, and affirm the judgment.