70 F. 794 | 6th Cir. | 1895
The- action below was by Henry J. Johnson, defendant in error, against the Insurance Company of North America of Philadelphia, plaintiff in error, to recover the sum of $10,000, the’ full amount of a policy issued by the company to Johnson, as the owner of three-fourths interest in a lake steamer called the “V. Swain.” The steamer was valued, by agreement in the policy, at $33,600, and the limit of insurance on the interest insured was $21,600. The policy covered only total loss and general average. The vessel was burned to such an extent that Johnson claimed that under the terms of the policy it was a constructive total loss, giving him the right to abandon the vessel and recover the full amount of the policy. It was conceded that, in order to establish his right to abandon, Johnson was obliged to show that it would have cost more than $25,200 to repair the vessel and to restore it to its former condition. The defendant company made two points below, and makes but two here. The first is that there was no lawful abandonment, and the second that there was not sufficient evidence to show that it would have cost the required amount to repair the vessel.
The abandonment was in the following terms:
“November 20, 1893.
“To the Insurance Company of North America, George L. McCurdy, Manager, Chicago, Ills. — Dear Sir: Please take notice that I hereby abandon to*795 you my interest in the steamer V. Swain, so far as covered by yonr hull policy No. 1,967, insuring 810,000 on my three-quarters interest upon a valuation of $33,600 for the whole vessel. Said steamer caught on lire, by which, on or about October 10, 1893, she was so greatly damaged as to become a constructive total loss, under the terms and agreements of your said policy. In making this abandonment 1 reserve all the uninsured interest to which I am entitled. I further hereby warrant and agree to defend the interest hereby conveyed and abandoned to you against all and every person or per^ sons whomsoever, and against all claims of every nature, and propose to make, execute, and deliver to you any further conveyance or assurance of title which you may reasonably require.
“Very resped fully, yours, H. ,T. Johnson.”
“Insurance Company of North America of Philadelphia.
“Chicago, Nov. 23rd, 1893.
“H. D. Godder, Esq., Cleveland, Ohio — Dear Sir: Your favor of the 22nd received. 1 note that you have brought suit in the matter of the Swain. I received the notice of the abandonment, and hereby notify you that I decline to accept same. Is it necessary for me to notify the assured, or will this notice of declination be sufficient? I regret iliat the assured has seen fit to take this matter into court. ⅝ ⅞ ⅞
“Yours, truly, George D. McCurdy, Manager.”
Upon the question whether the cost of the necessary repairs to restore the vessel to its former condition would exceed $25,200, so as to create a constructive total loss, the issue was fairly presented to the jury, and the jury found the fact in favor of the plaintiff. The evidence set forth in the record is quite sufficient to justify the verdict. It is not for this court, on a proceeding in error in a case at law, to weigh conflicting' evidence. The verdict of the jury is conclusive upon this issue.
With reference to the sufficiency of the abandonment, it is first objected that there was no evidence before the jury to show that Johnson had an unincumbered title to the vessel, as required by the policy. The language of (he policy upon this point was as follows:
“Moreover, no abandonment in any case whatever, even when the right to abandon may exist, shall be held or allowed, as effectual or valid, unless it shall be in writing signed by the insured, and delivered to the said company or its authorized agent; nor unless it shall be efficient, if accepted, to convey to and to vest in the said insurance company an unincumbered and perfect title to the subject abandoned.”
The evidence did show that: Johnson was the owner of the interest insured. This was admitted in the pleadings. No instruction was asked from the court, based on the alleged defect in the plaintiff’s proof, and we think it too late now, for the first time, in the court of appeals, for the defendant below to make it. More than that, we are of opinion that where a person is shown to be the owner of a ship, or an interest therein, and conveys the ship with an agreement to warrant the title as free and unincumbered, there is a presumption, in the absence of oilier evidence, that tlie title is unincum-bered.
Finally, it is objected that the abandonment is not in proper form, because it does not set out the exact interest of the plaintiff intended by him to be reserved in the ship. We are not called upon to decide the question whether the plain! iff laid an uninsured interest in the vessel, which he was entitled to reserve on abandonment, for the