Judah v. Randal

2 Cai. Cas. 324 | N.Y. Sup. Ct. | 1796

Per Curiam, delivered by Benson, J.

The very statement of the question implies it to be admitted by the parties, and which is certainly the case, that the only question between them is, whether the loss is to be deemed a total loss, or only a partial or average loss of the chariot ? By the express terms of the policy, jettison was one of the perils which the insurer took upon himself; but at the same time the insurance being also expressly free of average, the jettison must not be a partial or average loss only, but must amount to a total loss of the thing insured, so that the inquiry (and which is impliedly admitted in the question submitted to the court as stated between the parties) is, had the plaintiff a right to abandon to the defendant the remaining parts of the chariot which were saved, and sue as for a total loss ? My opinion is, that he had.

The part lost exceeded more than half the value of the whole chariot, the thing insured. The box being lost, the chariot cannot, with any propriety, be considered so to have arrived in specie as that it required to be repaired only to have again become a whole chariot. With respect to a chariot and every other wheel-carriage having a box, the seats for the persons to be conveyed, wheels, the perch with the axle-trees, springs and other parts affixed to it, and the pole or shafts are sometimes collectively denominated the carriage-part, as distinguished from the box and its immediate fixtures. If a wheel, or any other part of the carriage-part should be lost, or be so injured, as to be wholly unserviceable, and therefore a new part become necessary in the place of the part so lost or injured, the chariot would be said to be 7-epaired only, but if the box should be lost, or be so injured, it could not, with propriety, be said that the chariot was 1'epaired by a new box, it would be considered as a 71 ew chariot, but that the old carriage part was made to serve. The case of a vessel, put by the plaintiff’s counsel, is perfectly analogous and just. There may, as between insured and insurer, be a total loss of the vessel, although all the spars, sails and rigging may be saved. A new hull may be built and designedly of a form and burthen so as to be adapted to the spars, sails and rigging saved without any alteration in them, and be fitted out with them accordingly. This would not restore the identity of the vessel lost; as by the loss of the hull the vessel is lost; so by the loss of the box the chariot ceased to exist in specie.

Judgment for the plaintiff.