3 Gill 459 | Md. | 1846
delivered the opinion of this court.'
This suit was brought in Baltimore county court, by the defendant in this court, on a policy of insurance; the vessel insured being, by some of the disasters insured against, much damaged.
The policy on which the suit was instituted, bears date 13th August 1842, and was effected on the brig, T. Street, valued in the policy at $10,000. On her voyage, she encountered a gale, which did her very much damage. While making her way to a port of safety, she was grounded on a reef about twenty miles from Key West, at which place she arrived, 14th August 1842, laden with about twelve hundred barrels of flour. Surveyors, appointed for the purpose, reported, that the condition of the vessel did not justify her being repaired, and they recommended that a sale of her should immediately be made; or, that the expense of keeping her afloat should be avoided, by allowing her to sink, until a sale should be made.
There is much other proof with respect to the damage done to the vessel, the hopelessness of her condition, and the unavoidable expense of any delay in making sale of her.
Immediately after her arrival at Key West, the salvors filed their libel, in which they claimed salvage for the vessel and cargo. The court decreed a sale, allowing to the salvors one half of the amount of sales, after deducting all expenses. A few days thereafter, the brig was sold for $1010.
On the 24th October, the plaintiff in the court below, addressed a letter to the defendant, giving “the only information ’ ’ he had, relative to the brig, T. Street, and claiming a total loss. An answer to that letter, bearing date 28th of November, “disclaimed all interest in the brig, T. Street, and denied their liability for any but a partial loss for the said vessel, under their policy.”
The claim, then, of the plaintiff in the court below, was for a total loss; while his adversary insisted, that a recovery could only be had for a partial loss. Tlie verdict was for the plain
In opposition to this claim, it was insisted, in the first place, that there is no proof in the record of a valid abandonment of this vessel. Of this opinion was the court below, and indeed, the plaintiff did not insist upon it, or seem to have supposed, that the letter written by him to the underwriter, would have entitled him to claim, as for a total loss; and accordingly he maintained, that in a case like this, the underwriter is under no obligation to abandon at all, in order to recover for a total loss.
The ground on which the claim was rested, was, that a sale of the vessel was necessary, and that it was for the interest of all concerned, that the vessel should be sold; and under such necessity she was, in good faith, sold at the time mentioned in the evidence. Of all this the jury were to judge, and by their verdict have established, the necessity for the sale; that it was for the interest of all concerned; and under such necessity, she was, in good faith sold, at the time and in the manner stated. All of this is conclusively established by the verdict of the jury, unless, indeed, the jury was misled by some erroneous instruction which they received from the court, or in consequence of a refusal by the court to give an instruction which was asked, and ought to have been granted. If the court was correct in the opinions which it expressed, and especially,in the opinion, that there was no valid abandonment, it seems to be quite unnecessary to enquire, what proof would have been necessary in order to make out the case, if the plaintiff below, to make out his case, had been obliged to prove a valid abandonment, or an acceptance of the abandonment.
It is insisted, that the necessity which is to justify the sale of the ship by the master, must be one which leaves him no opportunity of consulting the owner, or underwriter, and that the master can only act for them, when they have no opportunity of acting for themselves. We do not discover, that the learned judge who instructed the jury, thought otherwise. In his instruction he says: “If there be an urgent necessity for it, the master as agent, both of the insured and underwriter, has a.
It is insisted, however, that “the necessity should be” defined “to the jury, and that” a standard be “furnished, by which the question of adequate necessity is to be tested;” and in order to supply this “standard,” and to justify the exercise of what is called “the master’s” “extreme authority,” it is said, that the language to be used by the judge, must be like this:—“The necessity must be urgent and stringent”—“a necessity which leaves no alternative, and puts the party in a positive state of compulsion to act.”
We do not mean to say, that such language, in such a case, is inadmissible; we merely deny that it is necessary to introduce those phrases into a judge’s instruction. It may be added, that these phrases insisted upon, do not furnish to the minds
In the case of the Patapsco Insurance Company, against Southgate and others, 5 Peters, 619, the Supreme Court of the United States affirmed the judgment of the court below, in which, among others, was this instruction given to the jury :— “If they should be of opinion that it was not such a case of urgent necessity as to justify the sale, then the plaintiffs are not entitled to recover for a total loss.” In the same opinion, the court seemed to suppose, that the difficulty in such cases is imposed upon the jury, rather than the court. “The difficulty,” said Judge Thompson, “in all these cases, consists, principally, in the application of a rule, to a given case, than in determining what the rule is.”
This court, too, in the case of Cohen against the Neptune Insurance Company, discovered no error in the instruction, in effect, that if it was necessaiy, in the opinion of the jury, for the interests of all concerned, that said vessel should be sold, and that under such necessity, she was in good faith sold, then the plaintiff is entitled to recover on the policy, though no valid abandonment was made.
We conclude then, that the court below did not err in granting the instruction asked by the plaintiff there; that there was evidence, from which the jury might infer a necessity to sell; and that the instruction given to the jury, was quite sufficient to enable them to apply the rule of law to the circumstances of the case.
We thus dispose of the important questions raised in the court below. There was, it is true, some other exceptions; but in these we find nothing which will warrant a reversal of the judgment. In this case it was preferred, to submit at once a variety of prayers, and that the court should, in one charge, embody so mueh of them as the judge thought to be correct. It is no wonder, that among them are to be found prayers, which would demand our attention, if others had been disposed of, otherwise than they were. We discover nothing that was said, or omitted to be said by the judge, whereby the defend
Some of the instructions which were asked for, and refused, might have been granted; but it is believed, that the instruction given covers the whole ground, and therefore, for the rejection of them, the judgment ought not to be reversed. For this there are precedents, one of which may be found in Stokes against Saltonsal, 13 Peters, 191.
JUDGMENT AFFIRMED.
