MONROE
V.
BRITISH
&
FOREIGN 'MARINE INS.
CO.
777
copy of it, meets the rule of good pleading which we have above stated, with the reasons for its requirement. In Daniell, Ch. Pr., it is said that "it is usual to refer to the instrument in some such words as the following, viz., 'as by the said indenture, when produced, will appear,' and the effect is to make the whole document a part of the record." 1 Daniell, Ch. Pro (5th Ed.) 367j Id. (1st Ed.) 476. But this does not say that the bill in such a case shall not, by proper allegation, inform the defendant of the nature of the document, but is a rule to give the plaintiff the benefit of the averring part without reciting it in luec verba, or exhibiting it, as the author saysi and in the very next text he condemns the inconvenience of this indulgence, and says: "It is always necessary in drawing bills to state the case of the plaintiff clearly, though succinctly, upon therecordj and, in doing this, care should be taken to set out precisely tllOse deeds which are relied upon, and thol:le parts of the deeds which are most important to the case." 1 Daniell, Ch. Pro (5th Ed.) 368; Id., (1st Ed.) 476. It is true that on the motion for injunction the letters paten,t were filed as evidence, and the document is before us, among the papers in the case. But it is not a part of.ilie record. Not even the loose reference mentioned above is contained in this bill to make it a part, of tlIe rleading, which alone is the technical record. Reference to it is gailied by implication only, from the fact that its existence is stated. It is not llieaded at all. So found in the papers, it cannot aid this pleading. Demurrer sustained.
)!ONROE v. BRITISH & FOREIGN MARINE INS. Co., Limited. SAME v. UNION MARINE INs. Co·· Limited. (Circuit Court otAppeaZs, First Circuit. October 5, 1892.)
Nos.7'.S. 1. MARINE INSUBANCE-" ABSOLUTE TOTAL -Loss "-ABANDONMENT. Under a marine policy insuring against "absolute total loss only," a partial loss cannot be converted into a constructi-ve total loss, and evidence of abandonment is immaterial. 2. SAME. A shipment of cattle insured agoainst "absolute total loss only" was In part jettisoned, the vessel having struck upon a reef. Part of the jettisoned cattle reached shore, and were taken possession of and sold by a salvors' association, whicb. had been employed by the underwriters to 1/:0 to the wreck and act for the interests of all concerned. with an agreement tb.at they should have a lien on the property saved, with power of s1'le for their reimbursement, but it did not appear for what reason the sale was made. HeW, that the owner of the cattle could not reco-ver on the policy, in the absence of proof that tb.e underwriters directed an unanthorized sale, or that salvage was actually claimed and the sale made in satisfaction thereof, and that he could not by due have disoharged the lien of the ealvors, and tbus secured the remnants of the cargo. 8. SAME-JlITTISON OF CARGO. Ajettison of cargo, either ,to lighten ship or for the purpose of being saved, does Dot of itself constitute an "absolute totallos8, " within the meaning of a marine insurance policy, when part of the goods are in fact saved.
i, i
FEDERAL REPORTER,
vol. 52.
"
,
8.ufBc4D.Ml'S'rM:ENT BY
,agents', that they were empowered to issue. the polIcles, recelve the premiums. aud' represent the ul:lderwriters in .legal proceedings in Massachueetts;it OBnnot .be presumed that ,they have authority to adjust Bloss occurring on tohe British coast, under a policy issued by them. ' I. TRt.u.,-DIREOTING COURTS. ' Afedersl court may direct a verdict for either party whenever, under the state of it be compelled to set aside one returned the ?ther way.
In all abt1Ull oncmarine insursnee'llolioieslsllued by British oompanies througb Ln BQston wneu uotAiing proven u.s .tothll of
OJ' AGENCy-EVIDENOE.
In :Error to the'CIrcuit Court of the United States for the District of Massachusetts. These two actions were brought by Albert N., Monroe against the British & Foreign Marine Insurance Company, Limited, and the Union Marine :J;nsurance Company, Limited, both. being British corporations, insurance' issued by them, i'e$pectively. The cases were on triedtQgetl1er in the circuit court, an.d in each. a verdict was directedtot defendant. SeparatElwHts e,f. error were sued out by the plaintiff" and.91e cases argued' togetQer m, the circuit court of appeals. JUdgment8:affirmed. ',"" . ,:,,' ,',' ' covered the policieM'¥ttidsted of 264 <lattle shipped OJl thestea;mship 'Missouri' at Boston, c6nsigned to James 'Nelson & Son, UVel'pdi)C i · bills ofladingalso 'p):'o"d'ed that, " if animals are landed at'BirkenHelUl"conaignee is ''to take delivery of them there. " The contracts of inll9fance one was for 816,000 and the other 817,000. Plaintiff'hade. generar blanket policy issued by each company through their agents in Boston, Endicott & Macomber, under which his shipments of cattle from time to time were insured. This was effected in each case by the issuance of a "domestic certificate" in the form: tRe 18th of 1886, this company insured, under and subJect to the conditIons of pohcy No. 10,550. tor A. N. Monroe, for aCOOJ,lAt of whom it may concern, six,teen .thousand dollars, on 264 head of cattIevalued'at per Str.· Missburl,at .and from Boston to Liverp09.\·. :,Loss, if ap.y"payable to the order of A.N. Monroe in funds /lity of Boston; at the office of Endicott & Macomber, upon the current in surrender of this certificate. [Signed] "gNDICOTT & MACOMBER, Attorneys. "Premium, -,--." On of each oertificate wilSprinted the following: "Against absolute totall08s of vessel and animals only, but this company of tbe 118,sured,'sassessment iI!, gen6i"al average to be levied u p o h a ) U n t e r e s l s . " , ' , The poliQiesQOntainedthe so-called "$ue, labo!;" and rescue clause," as follows: ' "An4, in4aseOf any lqas, 01' lawful and necessary to and for the assured, factors, servants, and assigns, to sue,Jabor, and travel for, iil .and!\l;out the defense,safeguard.aIld recovery of the said goods insurance: and mercMndi'Ses, 'or any part thereof,witbout saving, and prenor shall the acts of the insured or insurers, in property insured, in disast8l', be:oonsidllred a waiver or an &cceptanae;ofabandonment."
MONROE V.BRITISH
&;
FOREIGN MARINE INS. CO.
779
'. Also the" jettison " .' ,'-'. ;,.'j,
-.'"
.,'
in the following terms: ,
"lnan casesof;loss by jettison, the same shall be settled on the princi. pIes average only." . .Eallly on the morning of March 1,1886, the ship went ashore ontha Welsh coast at a place called Port Darfach, a few miles from Holyhead, and finally became a total wreck. In theattempts to get her off, many of the cattle were jettisoned by order of the master, some of which swam to injuries, it was necashore or were towed ashore by salvors. essary to butcher some of these, and only 108 were left. Soon after the vessel went ashore the Liverpool Salvage Association, an association of seven underwriters, of whom two were officers in the defendant companies, was requested by the underwriters to, send an agent to the vessel "either to take charge of the property, or to advise the master or owners, and to act in reference thereto as may be· considered best for the interests of all concerned." It was also agreed" that the association is to have an absolute lien upon all property saved and taken charge of by it, and its proceeds, for the amount to become due under this agreement,'Yith power of sale for or towards their rehnbursement;'" The agent otthis association arrived early at thescene,and t.he cattle, when landed, were in his charge·. The consignees, .James Nelson & Sons, had sent one Thomas Coleboum to the wreck, and by an arrangement with the salvors' association the cattle were placed in his charge, and sent to Birkenhead, and thence to Liverpool, consigned by the association of salvorsto James Nelson & Sons, who sold them, and accounted to the association for the proceeds, in whose possession they In all that was done by Nelson & Sons, they acted apparently as the consign· ees of the salvors, and not as the consignees of the plaintiff under the bills of lading. Plaintiff testified as to certain interviews had by him with the' Boston agents, Endicott & Macomber, immediately on learning of the wreck, tending to show that he verbally abandoned the property to the underwriters, and demanded his insurance, and that they made statements to the effect that the money would be paid,or that "it would be all right." Thmnas P. Proctor and Ohas. Theo. Russell, Jr., for plaintiff in error.
The court· ought not to order verdict for the defendant if plainti/l' has of. fered any evidence to sustain the allegations in his declaration. Lamb v. Rail1'oad, 7 Allen, 98; Todd v. Railroad, Id. 207; Witherby v. Sleeper, 101 Mass. 188. In these cases the order of the court was based upon the fact that there. was not a scintilla of evidence, or that there were no facts in dispute. "There does not seem to us to be even a scintilla of evidence to prove any act of delivery or acceptance." Denny v. Williams, 5 Allen, 1,9. "If the evidence is such that, thongh one or two verdicts rendered upon it would be .set aside. on motion, yet a second or third verdict would be to stand, Ithecl\nse should not be taken from the jury, but should be submitted . to them nnder instructions;'" Id. 5. The plaintiff contends ttlat there was evidence for the jury of lln absolute total loss of vessel and animals, within the meaning ofLhe contract of insurance. atid places his contention upon five grounds:
780
52.
First. The drowning or jettisol'li.of aU the insured cattle took them, by peril insured against, out of plaintiff's possession or· control, even if some of theJ;D,werelandedand sold by salvors.. As there .was no restitution, or offer of restitution, to plaintiff, the loss to him is absolilte and total. Second. There was evidence for the jury that the defendants, through their agents. so acted in taking, selling, retaining the proceeds from the sale of the wrecked cattle that ti)ey thereby accepted the loss as tot"l. . '.fhird. There was evidence for tbejl1ry that the defendants, by theiragents Endicott &, Macomber, agreed to pay the lOSS in suit, in consUeration of plaintiff's continuing his insurance uponoLhet shipments of cattle, and defendants thereby waived all defense. , Fourth. There was evidence for the jury of an absolute total loss by the necessary sale ofthe wrecked and mittie by and for the. salvors. Fifth. Under .the contract of insurance the plaintiff can recover, upon his proof of notice of aband.onlllellt, a e<>nstmctive totaUoss, if more than one half of the cattle were drowned. . . (I) Three fifths. of plaintiff's cattle were drowned in the ship·. .About two fifths :were jettisoned to lighten ship,gol; sshore,and were taken and retai ned by salvo.rs. The wreck ended the voyage and 'the contractual relation betwet\n and cattle. !r\1ecattle ce!lsli'd and the remnant.beeame merely The latter werelliLher in the possession of the defendl\nts' agentsor of!iniridependent salvor. wIth a paramount lien .lor the service·. The eviden-ce is crearly to. the effect that they were sent to Liverpool, not tocbIn'plete the voyage· under the bill of bntmerely as salvage, to be disposed of for the'salvage association,and they were sold by their agent for them. NQ freight was paid for the carriage of the cattle, and t1;ley were taken by the and sent to their broker without delivery of bill of la4ing. The cattle were merely flotsam and ..' This. then, was evidence for the jury that there was an absQlute total loss of thecattie to the plaintiff. The test is not annihilation, but deprivation. The defendants contracted that no peritof the sea or jettison should prevent the arrlval of the ship in Liverpool, not as salvage covered with sal vage lien, but l\S a consignment of use to andullder the control of the plaintiff. If none of the cattle arrived at their destination, as property of ,the plaintiff, with the right of possessiou In hilJl, they were as absolutely lost as though they sank with the ship iumid-ocean.. The loss is total in tbeabsence of proof riot only of rescue, but· of restoration, or offer of restoration, to the insured.'· Au absolute total loss is deftned·in the leading ease of RoWl) v. Salvador, 3 Biqg. N. 0.286, Oy Lo.rd "But If the goods were damaged by the perils' of the sea, and uecessarily landed before the termination of the voyage, and are by reason of that damage in such a state, though the species be not uttf'rly destroyed, that they C/!.nnot with ,Safety be reshipped; ... if, imperishable, they ,are, in thll.hands of strangers, not under the conof thllinsured; if, by !Iony circumstance over which Ile has no COl)trol. never, orWithin"noRssignable period, be brought to their original any of these. cases the circumstance of their existing specie at'thl\t forced teruiination(lf risk is of no importance. The loss is in its iJ#hretotal to him Who ,haa no means of recovering his goods, whether his arises from th'eir annihilatio)1 01' from any other insuperable obsta-
*.'"
:I¥r. ParsOlls says: are totally lost as to the insured when he has lost all possession of. or .power or control of, them, although they may continueto exist in specteas before. It is this lost condition to the insured that is usually il1teuded Wlllju'total loss is spoken of. ... ... .... loss occurs either if the thing ins.ured is wholly destroyed as that thing. or if the
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MONROE V. 'BRITISH & FOREIGN 'MARINE INS. CO.
781
property insured,. while remaining in apeciewhat it Is, is wholly lost to the insured, which means that it is entirely out of his power or that of thein8urer to recover the property." 2· Pars. Ins. pp.68, 74; 2 Arn. IDS. p. 952. Says Mr. Phillips: "A total loss of a sUbject of ins.urance is where, by the perils insured against. it is destI!oyed, or so injnred as to be of tritling or no value to the assured for the purposes and uses for which it was intended, or is taken out of the possession and control of the assured, whereby he i.s deprived of it, or where the voyage or adventure for which the insurance is made is broken up by the peril insured against." 2 Phil. Ins. § 1485. So, if some of the goods are landed and stolen at the place of destination, the loss is nevertheless total, because "the portions of the goods which were saved from the wreck, though got ashore, never came again into the hands of the owners. It is therefore a tolal loss to ,them." Bondrett v. Hentigg, 1 Holt, 149. So, if the insured vessel is sold for salvage, the loss becomes total to-the owner by reason of the consequent deprivation. Gossman v. West, L.R. 13 App. Cas, 160. ' "'Ac total loss, in one sense, means where goods go to the botlom of the sea, or where the goods are' burnt \)r utterly destroyed; in another sense, a total loss means that the man who owns the goods is deprived of them in some way or other," MARTIN, B., in Stringer v. Insurance Co., L. R. 5 Q. B. 605. So seizure by government: ":It is quite certain that may claim as for actual total loss if the ,property or interest insuI!ed be taken from him, although there may' be hope of recovery." 2 Pars.. Ins., p. 9UO. There was evidence for the jU1"1 of this depl'ivation that,constitlltesan absolute total loss. The only cattle saved were held and sold by the salvage association,without notice. to the plaintiff, and the proceeds retained by the association, two sevenths 'of, which associrttion is'made up of defendants' representatives. The .broker employed by them to sell the cattle says: "mhe salvors· declined' to give up to Mr. Monroe 01' anyone else.. The salvors had possession of the cattle, and did not ask any person's consent." Any demand by plaintiff was. therefore useless. Moreover, he was kept from making any such demand by the assurance of the agents in Boston that the loss would be paid. There is no evidence as to the expenses or salvage claimed by the salvage association. They have made no claim upon plaintifli, have rendered him no account, but have simply kept and.still keep the entire proceeds from the sale. The presumption from the retention of the salvage proceeds is that the salvage association is entitled to the entire net sum to pay the expenses incurred. Not only has there been no restoration to plaintiff of the sal ved remnant of the insured property, and no proffer of restoration, but the salvage proceeds are actually in the possession of defendants' salvage as· sociation. The cattle, then, wpre totally lost to the plaintiff by perils of the sea. Both ownership and possession were taken from him. "The goods were in the hands of strangers, not under the control of the insured. " The insured" had lost all possession of, or pow.er or control of, them, although they may continue to exist in specie as before." "They were taken out of the possession and control of the assured." Authorities cited supra. (2) The plaintiff claims that there was evidence for the jury that, after the loss, the defendants; acting as they necessarily must, ·through their agents, regarned and accepted the loss as total. and so led the plaintiff to believe. The defendants, by the terms of the policies, had the undoubted right "to 8ue, labor, and travel for,ln, and about the defense,'safeguard, and recovery" of, the cattle; "nor shall the acts of the insured or insurers in recovering, saVing, and preserving the 'property insured, in ·case of disaster, be considered a wai ver or an acceptanoeof an abandonment." The right conferred by this "sue and Jabor" clause is well settled. It enables either party. as the at-
J'EDERAU :mmoRTJlm t
'vo};52. ',: ", ,;, :""
iprejudice;. P'10per step!l'fJo preserve and It',ill,llJppWllU"of 'l'ne underwriter can do"Whfl,t:,tIIi A"fIiJ8ar,y to, 'presen«ll lhe'l property he i goeslaeyond ,his ()wnership in. or title to, the insured goods, IW or agreeing to,the pledgeor. of them, then the 'it as his salvage, and thel'ebyassumes the losato, be total. ' 'labor"cI8l1l1Je',theldefendants could take, possession to save and>restoreJ' I But if, histead lof: savJ:ng and restoring, they did any 'act implying,or MS'e'rtlng u fortiori, if they sold, or pledged the insuredproperty"they assumad trhelloss to be total, and are estopped to deny its totality; Wood v.1nsu1'a'Me 00., 6 Mass. 479<;, Insurance Go. v. Chase, 2UPick.142; Reynolds v.' InstJrance,Co., 22 Pick. 191; Copelin v. Insurance 00., 9WaUi.r46!;' . ' !. "IthiD'kflit JIlaybe lalddown,iBStRgenerakprop08ition, that wheJl6vel'the underwriter does any act, in consequence of an:abandollme¢;,:which can be justified only,-uMer'A right dilllived ;from it, that act is of· itstdf decisiveevidenc'eof'un"acceptance;i IlDdcases may even,bepllt where the act of the un· derwriternw,lll itnLIaw prevail'over his express declaration. if, after an abandOnment; he. shall proceed to ,sell tho vessel" With an express protest aglll'nsttbe:acceptance, and,adeelaration that'he nidit for the benefit of the owne1".:td. BCllWouldi ,1l6v6rlhelesEI'oonclusively:biridhim1in 'poInt of law. 1' S'roRY, J. P(J6Zsv.llnsurance Co., 8 Mason, 81; Peele v,:In8urance 00;, '1 Pick.:254;'1"1UM'l.moe Oo.v. 2 Curt.: 322;2 .Arn.lns. (2d.Ed.) p. 969. ' ': """ "!,,"" ;', liThe question is, wholly ODe Withe jury.. "Any' act oftha underwriter, in consequenice:Ol,llllDuabandoll,meilt. which could:; be justified, only under a right daiiivedi1vom,it"may be of, 'an 'acceptance. *" " The waswhettier, upon .the·!8vidence, taken. in connection willh·tl1e:provisioDsof.tbe,palic,.:Aibere were' any such acts.··'" FULLER, C. J. :RtchelW 'Nav, Oo.,v. BoBtonMarine Ins.i'Oo., 136 U.S. 433, 10 Sup. Ct. Rep.198l!lw'Sliepherdv. HeiJ1derson, L.R.7 A.pp. Cas. 49;, N01·thweste1"li 2'ramp.'(lrJ. ly.1Jhames&'Mnlt'IUi':Oo., 59 Mioh.214, 26 NhW1 Rep. 336. So far:ail!;Cl4)ncems the quesbion, of acceptance. the principlemust be the same 'Ialoases m:,actrlal as -ineases:;of construl'tivetotalloss. In each the qllestion" is prltel.y one of fact:. ,Did tbe:llnderwritat8 assert ownership, or do any ae!;:wbich'lilie insured w6uIthbe'justified in believing was assertive of title P lhOJrth9< underwri,tel'lt,bavetaken the salvage,andr are. bound to pay the loss., ',:: ,I: , ,', , '" " 'I'be tbatthe deffPdants 4id,by,theiragents, so deal with the salved cattle as to assert title, and make the loss an absolute total loss with salvage:.. '; :' There wRsna consent orpartlclpation on the part, of plainti ff, or any agent of ,hisi to' thiSsQle and assertion :of: title. ' Whatrightih&d: :the defendants on March 3d, after, knowledge that some of the cattle. badl got ashore, to ,interfere: with plaintiff's property, and without his as:;ent to put a'Uenupon it.u.nless they recognized the loss as total, and wereprotectlng:t!'leir salvageP,: i' : if , (3) The"I:Uainbilt :rontends,tbatther.e was evidence that the defendants. through thElil'kgents.Endicbtt & Macomber,agreed to pay the loss in consideration of ithe, plaintiff's efiecting'hisfutute insurances with .them. '(4}Tbe Jplaintitf,contendsthat"tbere,was evideilcefor the jury that the lossbeCllllU'l ail absol ute total ,10s8' by,tbenecessary sale of, ,:the salved cattle. Whether the authority 'fortbe.sale.came from tlle salvage association or the defendants, Or ,from themaster:of the vessel, it certainly did not come from the pll\illtiffol'from his agent. ' ,,
toi:tley df'llhel oth8l'.to
MONROE tI. 'BRITISH & FOREIGN MAalNJll INS. CO.
783
The law as to what constitutest'OtallQss by necessary sale is definpd intbis circuit in Hall v. Insurance 00.,37 }j'ed. Rep.. 3n: "I have come to the conclusion, after. very full consideration, that the only of the power of the master to sell is to inquire whethel' thevtlssel was in such a situation that t() sell her was the only prudent and wise courlle. It is said in the cases that the sale tD;llst be by necessity j but I do !lot \)nderstalld that, in order to show a necessity for a' sale, the master must s.how that no other course was open to him. It is sufficient if he allow that there was no other prudent course." CARPENTER, J. There was evidencefor.the jury of such necessity: (1) The salved cattle were sold: 8S wrecked cargo; (2) they were in a'maimed and damagedcondition; (3) they could be fed and kept for the salvage lien only at greata,nd disproportionate expense; (4) the defendants consented to the sale, and are estopped to deny its n e c e s s i t y . . . ., (5) Under' the contract of insurance plaintiff can recover a constructive total loss on) proof of a loss ex.ceeding one half the cattle and seasonable , abandonment to the defendants. The term in the margin of .the certificate, .,Absillute totall!>ss of vesseland animals;" means merelYI" Actual total loss, "and does not exclude a ,constructive total loss. "It is to. be borne in mind that a loss is as ,much a total lOBS in lawRs lithe subject of insurance had been actqally A policy., therefore, against total I'ls8 only. covers a qonstrllctive loss also, unless the parties, if they intend to exclude ,this, do S9 by some such wordBas, · without.benefit of abandonment.' .. 4rn.lns. (6th Ed.)p. 951. As 156 head of the shipment of 264 catUe were drowned in the ship, can be nodoubt that the loss exooeded halt the value. Monroe made a able oral abandonment. and gave notice. to defendants' agents in This was sufficient notice.(jlfabandonment. It need not be in no particuiarform is required. Anything that conveys to the ortheir.agents the informatioll or understanding that tlleinsured surrenders to them the goods saved,is sufficient. 2 Phil. Ins. § 1678; Insurance C()· .v. &u,tkgate,;·5 Pet. 604; Insurance Co. v. Ashb1/. 4 Pet. 139; ,same v. (latlett, 12 Wheat. 883. An insurance contract" covers a constructive total loss based on damages exceeding one half the insured value from perils insured against, and an abandonment, although the cargo sUbsequently arrives at the port of discharge in specie, and very little diminished in quantity." MallfJ v. InsU(1'ance Co., 152 MasS. 172,25 N. E. Rep. 80.
John LaweU and Henry M. Rogers, for defendants in er1'6r. The jUdge of the circuit court was right to order verdicts for the defendants. There is no evidence reported ill the transcript which would have warranted the jury in finding verdicts for the plaintiff. The rule of the federal courts is that "the jUdges are no. longer reqUired to submit a case to a jury, merely because some evidence has been introduced by the party having the burden of proof, unless the evidence be of such a character that it would warrant the jury to proceed in Iinding a verdict in favor of the party introducing such evidence. Decided Clloses maybe fOllnd where it is held that, if there is a ,scintilla of evidence in support of a case, the judge is bound to leave it to, the jury; but the modern decisions have established a more reasonal.>lerule. to wit, that oefore the ,evidence is left to the jury, there is, or may be in every case, a preliminary question for tile jUdge, not whether there is literally no evidence, ,but wbe.ther the.re is any upon which a jury can properly to find. a verdict'for the party producing it, which the burden of proof is imposed." Com,missioners v. Ola1'k.94 U. S. 278. 284. per Mr. Justice CLIFFOliD.
FlllDlllRAL REPORTER,
rectly stated. at the bar. The party demurring admits the truth of the testimonyto Wblch he demurs, and also those conclusions of fact which a jury Dlay from tbat testimony. Forced and violent inferences he doe$ not admit; but the testimony iil to be taken most strongly against him. and suc1'l"conclusions as a jury might justifiably draw, the court ought to draw;", Gurter v. Gamsi, 112 U.S. 478-484.5 Sup. Ct. Rep. 281, and cases there cited by the court. So. also. in the state courts, the rule is the same. D8hnll v. -Williams; 5 Allen, 1; Brooks v. Somm'ville. 106 Mass. 274, 275: Odtll/Zo1- V:;,Biles, 76 Me. 132"'134; Pray v.(iarcelon, 17 Me. 145; Head v. B'Mepe1'i20M.e.314. ' ,,: ' " ';, .· ' _ , .'lnEngland tile doctri(f1e isthe'Sll.lne.JeweU v. Parr" 13 C. B. 909. 915. 916; quoted with approval by HAND. J .· in Olaflin v.Meyer,,75 N. Y. 260266>M:A'trl'.E. J .· SaYil:' say,thnt there is no evidence to go to a 'jury.werlo not mean literally nOD0', but that there is none that ought reasonablY,to saUsfya jury that the fact sought to be proved is est3oblished." (IOu'tt Mlthave,to interpret' the clause in '.At,·tIlI' outset· of tbe'p6l1cies. totallosBof,vessel 'antt animals only. "What ot ihterpretlation,wba\;'prinoiple.'shall be applied to determjne theq!lestioiJ. was there' an absolute totall08s or DotPTile court in Kemp v.Balliitay. 6'Best>&'S. thitl question clearly , ""'The qt1E!stion Of loss; 'Whether total Of. not,lSltQ 'be determined just as'lf there' ati aU:' If the' sUbject:.mattel' is. by the .underwriter's peril. 'pu1;insuch a situation that. BUPlJosingtherewas no'policy. it would be totaHvlost to the ,owner. then, as between the assured' and the underthere is ll,totllllOSs;not otherwise. :AM the question' whether the tlfiilg is lost to Its ownerJis'to be treatedcin a practical business-like spirit. byan'y means which the owners or theirreptesentativej'tbeoaptain.'ooll reasonably use to save it, it is ll.tota1'loss; but if, by aby'rea$()nahle means which were reasonably Within their reach, they mlghttedeetli' tile' 1m bject:.matter,andilorlot do 80. the total loss de ,not attributable to the perils which cast the subject-matter of insurance into that position. but' to the neglect'of the oWner to take those reasonable means." If they do not take those mealis, they cannot make the loss total by their own neglt>ct." 'Kemp"'. HalUdalh 6 Best & So 723-752; [rvinNy'.r Manning, 1 H. CIlS.,:2$'f..-306.' .,' , , . We may quote, too. from the langQage of MATHEWS,J·· in 'the case discussed i,\&/lr qrief. (,lfrooke. v. Ins1franceOo.:) .T,. · . "No IDJustlce takes place. no VIolence IS dona to the pnn(uple of eqUlty and natural right, by interpre'ting contracts according to. the legal and ordinary words used in making them, asarllanged in gram, import 'andmeihHng matical:cons.trtietioll,"-Sucll :meaning as every person acquainted with the strtictu're Of IaRigooge wo'tlld' attach' to them." 5 Mart. (N. S;') 546. What 'is meant by absolute total los's? The clause' of tihispolicy. "against absolute total loss of veSilel and animals only," is to be interpreted naturally. in' acconlance with the clear, obvious. of'f,he words. There is no mystery attaching to the and ordinary 'words, "an absolute total loss." or as it is sometimes called. "an actual total IOS8." in law or in fact. 'The textwritetiland the courts are in entire harmony with ,etl.db other and with the (lommon and accepted views of business men. " . "<:, , , i \ ' AD actua1'totalloss oceui's when the subject insured wholly perishes, 01' its recovery i'I;I: rendeted irretrievablyhopeless..'· McArthur, Ins. 138; Am. Ins. {4th Ed.}'844j,(1887.),Arn. Ins. (6th Eng. Ed.) p. 951j2Pars. Ins. 68.
In the very early case of Pawling v. U.S., 4 Cranch, 219-222, MARSHALL. J .· says:' "The general doctrine on a demurrer to evidence has been cor-
MONROE V. 'BRITIER &: FOREIGN MARINE INS. CO.
785
it is sometimlls called, 'absolute,') or constructive, (or, as it is sometimes
"Total loss of maritime property under insurance is either actual (or. as
called, 'technical.')" the purposes of practice, and of insurance law, a vessel is totally lost when it is lost as a vessel, and goods are totally lost when they are lost as goods; and either vessel or goods are totally lost, as to the insured, when he has lust all possession of, or power or control of, them, although they may continue to exist in specie as before." "If." says Lord ABINGER, "in the course of the voyage, the thing insured becomes totally destroyed or annihilated, or if it be placed by the perils insured against in such a position that it is totally out of the power of the assured ot the underwriter to procure its arrival, the latter is bound by the very terinsofhis contract to pay the whole sum insured." Raux v. Salvador, 3 Bing. N. C. 266. .. There must be no rational hope, no practicable possibility, of recovering possession of the property, and prosecuting the adventure to its termination; for'only when such hope and possibility have ceased is it an actual total loss. " 2 Pars. Ins. 68, 69. .. Whenever the thing insured is, by the operation of a peril insured against, reduced to-such a state as to be no longer' capable of use under its original denomination, there is an actual total 1088. " Wallerstein 'D. Insu1'ance Co., 44 N. Y. 209; Burt v. Insurance Co., 78 N.Y. 400. The phrase "total loss" simply, which is the phrase commonly used in insuring what are known all "memorandum articles," since it does not contain the word "actual" or "absolute,"ie salisfied by a constructive total loss, with a seasonable abandonment. No case in which the word "absolute" 01' "actual" is not used, and no case in which there has been an abandonment, iepertinent to the inquir)' in this cause; but there are several cases in which, the insured bavingfailed to abandon, thecourtll have inquired whether, as a fact,' the loss waf' absolutely or actually total. These cases are pertinent, andtheYi decide the law to be such as webave already stated, namely, in cases of a ship, when the ship has ceased to be a ship, and in cases of goods, when the goods have become utterly lost in specie, or entirely valueless, or wonld have become so If conveyed to the port of destination. Chadsey v. Guion, 97 N. Y. 333; Burt v. Influ1'ance Co., 78 N. Y. 400; Kemp v. Halliday, supra; Hills v. Asm1'ance Corp., 5 Moos. & W. 569. We submit that this whole case was decided on the 1st day of March,1886, when 108 cattle out of the 264 that had been shipped by the plaintiff at Boston, were safely landed. or, if not then, when they were transferred by the authorityof the master to the port of destination. We submit, further, that it is impossible for the plaintiff even to state his case accurately, and bring it within the above definition of an absolute total loss, for it is undisputed that, of the 264 head of live cattle that were shipped by the plaintiff at Boston, 108 were landed alive at Birkenhead, the port of destination. He cannot show that these 108 animals were to all intents and purposes for it is admitted thoy were sold by the consignees themselves.at the port of destination, for the benefit of somebody, for upwards of £20 sterling a head, or for £2,195 13s. Sd. ina11; or show that the plaintiff evel' lost possession of them, or power of control over them, for he asserts that he never made' any attempt to get them into his possession, and has made no application to have the proceeds of their sale paid to him, notwithstanding .lhe fact that the evidences of title, to Wit, the bills of lading,"are in his hands, and have been so since March 1, 1886, the very day of the disaster. Biays v. Insurance Co., 7 Cl'anch, 415; Morean v. InlJurance Co" 1 Wheat. 219. v.52F.no.9-50
786
Theplaintifi', failing to show an 'absolute, tQtaHoss, is forced to contend that there, was a constructi ve total loss of his cattle. ' Upon this point we submit: j,(1) lhe,word "absolute" in ourpolicy'is .used not only.as including :"actual,:I' but also as excluding : It mellllS, therefore, without privilege,of abandonment. We 'arecontending, for the clear, ordinary, and obvi0llsmeaning of the word "absolute"in our policy of insurance. (2) In cases where the right existR to claim fora constructive total loss, there ,Dlustftrst be an abandonment by the assured to the underwriters. But, where is against: absolute .total loss qnly,thel"e is no necessity for nor 'right of abandonment. ,Burtv. Thsurance 00.,78 N. Y. 400. (3) The object of an abandonment is ,to turn into a total loss that which otherwise would Dot be so, and anaband.onment must be made seasonably, i. 8., before any portion of the goods have arrived at their port of destination. Forbes v.1lft8urancB 00., 1 Gray, 371; Pierce v; Insurance 00., 14 Allen, 320, 322, ,per,GRAY, J.; 6raoiB v. [nS1,(JranCB 00., 8 JoQus.lS3; Ma1'oardier v.lnOran.ch, 39; Baltu, v.InsurancB 00., 14 Johns. 13S; OhadllBlI v. (luion, 97 N. Y. 333. . (4) Eveniif,this wrl'ea C8se whel'e there axisted the right of abandonment, no abandonment as a,fact ,has bee,n made. As to .what constitutes a legal abandonment" see McArthur. Ins. pp. 145,146,147. The further contention ,of the. plaifiUfi', as we understand ,it, is as follows: That when theinsnred went into the sea.they were an absolute total or were towed ashore, loss to the: plai'ntifi',' even though they swam and were a.fterwards sold"sJaveand. well, in't,lle market at Li,verpool, the port of destination. Against this construction:it ill to be noticed that by the terms of the policy it is ,proVided tbat "in all;cases of lOBS by jettison the samils!lalLbe.setLled on the principles of generalav.erage only,. II Again, in the policy, the: tiona resting, upon the lnsured under,the"sue,labor.and travel" clause would precludetlle possibility of,tlhe assumptiionthat when insured anhnals, are wet they are,d,Fowned"orwhen landed·thereafter alive and well they are dead. If theplaintitX,failed to dowhat<he .Was· bound to do .he cannot claim fora .tota! l08s"for the law is settled that the owner of a shipment cannot make the neglect. b·vmg',v.Manning, 1 H. L. Oas. 287-306. The bills of lading are still tn the haDdsM the plaintiff. He says he has ,never don8' anything abdut· ,his cattle; 'never ,heard anything about them; ,l'lever elaimedanythingfrom:those in Whoscpossession they wel'e; nor claimed -the .pr{lceedsfr:omany one. The further contention of the. plaintiff is that the defendants, either by their own acts, or byttle: acts of their duly"constitu ted agen ts, have exercised such control-over the property of the plaintiff as, in effect. to assert their {)WnerShip of it, so as to.dispossess him; that they have in law, at least, acknowledged an 'abandonment by the plaintiff to them, and aconstrllctive totalloss;.ot bhatthere has been a recognition of an absolute total loss, and -that it is too late for them to change their legal position, and that, consefluently, the)' are liable under the policies. , It is an elaborate assumption. hut it is· only. an assumption. and rests only on such "stuff as dreams are made of." If itbe.conceded that the salvage association did take pOSSeSl:llOn 01 the plaintHf's'cattle, and thersts no doubt it did, it only took possession of them .as sal'vor, 'and: there is no law ,of any country that makes' a salvor the owner {If the property saved, or a thief for saVing. Salvors, at best. have only their lien for expenses. Noone.eVel·doubted that salvors should be encouraged. They are the special wards of courts of admiralty, and in high honor, and their
MONROE v. 'BRITISH,&' FOREIGN ,MARINE INS. CO.
787
pQ$session of property .ia8 p08Session, and th'e owner or consignee can always obtain his goods by payi!lg sal vage. It was the duty of the consignees, in this case of the owner; so to his and pay the expenses, and, by neglectibg to do so, the loss cannot be thrown upon the insurance companies.' '" ' The consignees cannot plead ,ignorance of what was going on, for they were in close conference witbthe Liverpool Salvage Association, and acting with and for it, under written agreements not produced. All ,the evidence shows that the salvage association was as much the agent of the plaintiff's consignees as of fl.nybody. , , ' , " , . It is certain that the defendants had nothing to do with the Sale of the cattle, nor did'they ever receive any money from the sale of thecllttle, or inter'" fere witbit in any way. ,Before,CoLTand PUTNAM, Circuit Judges, and NEJ..BON, District Judge. In Nm-th Pennsylvania R. Co. v Oommercial Nat. Bank, 123 U. S. 727, 733".8 Sup. Ct. Rep. 266, the supreme court said as follows: ' "Thereis>nodoubt of the power of the circuit COUlt to direct a verdict for the plaintift' upon the evidence presented in a cause wbere it is clear that be is entitled to recover. and no matter affecting his claim is left in doubt to be determined by the jury. Such a direction is eminently proper, when it would be the of the court to set aside a different verdict if one were rendered. It would be an idle proceeding to submit the evidence'to tbe jury, when they cduId justljr'ftnd 00lyl0 one way."
v.Gmver8e, 189 U. S. 469. 11 Sup. Qt. Rep. 569, this The court, page 139 U. S., and page 570,11 Sup. Ct.'R:ep..; said: . "But it is well settled that thac(;mrt may withdraw a case from them altogether, ,direct a for the the .defendant,. as the one or tbe other may .be proper, where the eVidence IS umhsputed or IS of. such conclusive <;haracter that the court. in the exercise of a sou)1d judicial discretion, would be compelled to set aside a verdict returned in opposition to it." In Railway'eo. v.Cox, 145 U.S. 593, 606, 12 SUP'ICt. Rep. 905, the court said: "The case should not have been withdrawn from the jury unless the con.clusion followed, as matter of law, that no recovery could be had upon any view which could be properly taken of the facts the evidence tended to establish," Although this did not state in terms that a verdict might be directed for either party whenever the court would be compelled to set.aside one returned the other way, yet in view of the above citations, and especially in view of the expression in the yet later case, (Meehan v. Valentine, 145 U. S. 611,618,12 Sup. Ct. Rep. 972,) it cannot be questioned that this test is still aproper one. Courts cannot be expected to stultify themselves by taking verdicts which in a sound judicial discretion they should immediately set aside. Applying this to the cases at bar, the direction of the court below to return a verdict for each defendant must be sustained. .. . .
. 1Il Railroad Co.
.,
788
. ,', \ ..
The plaintiff ·t>u:t in with Endieott & Maaomhet, ,the agentaof the defendants, and 61!iimed that as the result ofthem'the dea total loss, or were estopped it. The court, however, regards these conversations'as 'l:hey took place at Boston, part on .the ,day of the and the remainder within a day or two after, necessarily in'ignorance of the true condition of fMtaon the other side of the Atlantic, as plaintiff, of course, should haveweU understood; 'and they promised nothing except that everything "woul4 1;>e all right," which was ,wholly indefinite. The, plaintiff failed to prove that Endicott & Macomber had an agency.so broad as to authorize them to adjust a loss of this nature occurring in England, where the defenda-p.t corporations were present and had their habitat. Nothing is proven clearly, except that Endicott & Macomber had authority to isslle the policies, receive the premiums, and represent the underwriters in legal proceE\dings taken. in Massachusetts; If the plaintiff claims in'ore than this he should have called out the agents' powers of attorney or other written authority, or pointed out to the court some local It to prelOyal or agents have powerttdnterfere with the adsume justment otlosses occurring abroad, especially in the country of the residenceor domicile of the insuringcorporlltiol}s. ,To encourage a rule of that nature would,.be.very unrefl,sonable, in viewof the fll,ctjhat local agents rarely, if ever, have the knowledg\3 necessary to enable them to deal with such matters. . ' . It seems to the con'rt that of the lack or existence of an abandonment is also of, no corisequenc'e. The loss cannot be converted from a partial to a constructive total one with any effect in this case, and an abandonment has no use except for that purpose. This is sufficientlyexplained in Stringer v.lnsu,rance Co.,L. R. 4 Q. B. (j76, Imd L. R. 5 Q;':B. 599,appro\'ed in v.Weat, L. R. 13 App. Cas. 160. Neitherctid jettisoll of the. cattle create an absolute total loss. Whether they were jettisoned for the purpose of being saved, or to lighten the -ship, is unimportant. Even derelict does not constitnte an absolute total loss, if brought into a port of safety within a reasonable time, and ifalso the salvage charges are paid by the underwriters, or if under such circumstanoes that a prUdent owner ought to pay them. Oos811lanv. West, ubi supra. ' Carr v. Insurance Co., 109 N. Y.505, 17 N. E. Rep. 369, cited by plaintiff, lays down the following rule: "The underwriters haVing elected to take possession of the vessel under the rescne clause, it Is plain, we think, that they could neither sell the wSspl voluntarily nor permit it to be sold uuder judicial process in satisfaction of a lIen which they had created,. without thereby making the loss to the plaintiff an actual total loss,' whatever may have been its original character." This divides into two branches: First. A voluntary sale of the vessel by the underwriters. Und0ubtedly the underwriters may so deal with pl'Operty in peril as to C0nvert what otherwise would be a partial loss into an absolute total one, or so I
v.
BRJ.TISH&, FOREIGN MARINE INS. CO.
789
as to bar themselves from denying that such a loss has accrued. But when the assured has obtained the benefit of a low premium by covering absolute total loss only, then in view thereof, and also in view of the fact that public policy requires that all interested should be encouraged to use the sale and labor or rescue clauses to the fullest extent, whatever may be done in that direction by the underwriters, as well as by the owners, in unintentional excess of power, should not be made a trap. Second. All to the effect of permitting property to be sold under judicial process, Carr v. InBUrance Co. does not seem to state all proper qualifications. When a vessel or other property is taken possession of by captors or salvors, ·of course the owner is dispossessed, at least for the time being, and, unless he can restore his possession by reasonable efforts, the loss becomes absolutely total; but he is bound to use such efforts. In Carr v. In8urance Co. the vessel was in fact sold for a much ll'lss sum .than the amount the underwriters agreed to pay the wreckers, So Jhat a prudent owner w01l1dnot have interfered to prevent a sale. And, inasmuch as the underwriters did not return the wreck free from salvors' liens, the misfortune was, as a matter of fact, converted into an absolute total loss. So in C088man v. ;W118t, ubi 8upra,theproperty saved was of less value than the salvage services, and the underwriters did not discharge the lien. The fact must appear that the sale was under such circumstances that a prudent owner would not interfere to prevent it. Inshort, if the property passes into the possession of captors or salvors, and the owners are thus in fact dispossessed, the loss becomes total, provided the owners cannot in either case recover the possession by disproportionate exertions, expense, or hazard; otherwise it does not. H is plain that in the case at bar the underwriters properly asked the intervention of salvors. The vessel and property aboard were in such .condition that it was beyond the power of the master, owners, or underaid of salvors was necessary. writers to rescue her or her cargo, and Although the salvors were employed at the outset by the underwriters, and although they constituted an association in which the underwriters had shares or other interests, yet after their employment they ceased,to be agents. of the underwrjters, and took and held possession in their -own right for the benefit. of whom it might concern. They did not dif.fer in this respect from other salvors whose position and rights remain generally the same, whether they come to the assistance of a wreck as volunteers or at the request of the interests concerned. Having thus taken possession, it must, for the purposes of this writ of error, be con,ceded in behalf of the plaintiff that the salvors sent the cattle to Li verpool or Birkenhead, consigning them to themselves, and ordered them sold by James Nelson & Sonsi that though this firm were the consignees the sale was for the benefit of the salvors and on their account; that, according to Nelson's statement, the salvors declined to give them up; and. that they did not ask anybody's consent to the sale. Also it is true that the written employment of the sah-ors, though perhaps signed by
790
: :nmutAL a1il'roRTER, vol. 52.
of tbe":undel'writers 'after tlit!JilreSctied cattle 'were took effectfrgmdtl:! 'date, a,ndbefore;they arrived at Birketih,ead dr-Liverpool, and that it authorized thesa,lvotS',tO' sell in order to' :their lien; and it may ifit'had heerl'mai(le to sell for that purpose,"s.nd rthat the underwriters "had no lawful right to thtisempower them,: the result wofild have been acOIiversion authorized by the underwriters, $ufficient to bar them from denying an absolute total loss. For the reasons already stated; it rested on the plaintiff to show this, or that the sale ,of the cattle could not have been ptevented by him with due diligence. :aut has not,even put in evidence the written directions from the salvors to James 'Nelson & Sons to make the sale, nor shown for what reason the sale :was made, nor when it took place, nor how much timeinterveged after the arrival of the cattle at Liverpool or Birkenhead. Neither hlurhe made to appear whether any salVage was claimed,ol', if claimed,what the amoUIi1:was, or that it was tendered or offered', or that thes!dvors Were toIdthat the plaintiff or his con· signeeswouldpay it, or would pay what was'justlydue. The statement of the witness Nelson:; that the salvors declined to give up the cattle, was' :too 'general to be> strictly admissible as evidence, and," being unsupported by detail, has 110 weight, although the point of its admissibility' was not raised. On the other hand, it does appear beyond question"that part of the oonsignment did arrive at Birkenhead, which, as well as Liverpool, was 'a place of delivery under the bill of lading. It alsolippearg,that the 'plaintiff was'not unrepresented there, because James NelsOri !& 'Sons and had the bill of lading; and,althougb 'thewitnelj&fNelsonproteststhat they did nothing on account of their consignor, yet they were in position to act. It was also his:duty noftobe unrePresented.!, " . " " On the whole, claims to bring himself within the ex-' ceptional rule ofCo88man:v. West, 'Ubi supra, .and to excuse himself from the general priMiples iltateQ in Thornely v.Hebson,2Barn. & Ald. 513, it was for 'him to bring' outnn the facts necessary therefor. As part of the .cattle arrived at BiQ:lkenhead, auabsolute total loss cannot be made' out; unlesS'1 as alreadyaaid, the plaintiff shows that the underwriters directed anilinauthorized'sale; or that,with due diligence; he could not hlive discililtrgoo'the c!aimof the salvors, and thus secured the remnants of the consign:nient. On importan.telements making essential parts of this proposition,he has failed to .furnish any proofs; and on that ae. count the circuit court would unavoidably have set aside a verdict in his favor upon this necessary branoh of his case. The poirit taken by the'plaintiff,that no notice Was' sent him of an intention to sen the cattle, is not valid, inasmuoh as his consignees actually sold them, and therefore knew they were to be sold. The fur· ther proposition, that the sale was a J.egalor physical necessity ,is alsoineffectual;· be(:l8.use the record fllils to ,show that there was not sufficienttime and the lien of the salvors, and take possession oftheoattle, ·beforethe timeofllny necessary sale could arrive. I f
tI. ARCHER·.
791
In this respect the conditions wer(l essentially unlike those which appeared in Bondrett v. Hentigg, Holt, N. P. 149, where the goods were stolen on a barbarous coast; for, in the cases at blJ,r,the courts and laws were in the same full vigor where the property arrived 8S in the United States, and presumably the consignees had opportunity for enforcing all legal rights. , On the whole, the suits turn on the circumstances of the sale at Birkenhe;:td or Liverpool of the renlllants of the consignment. The rules applied by Us are elaborated in Arnold on Marine In8urance, (6th Eng. Ed.) in the opening of chapter 6, and in chapter 7, vol. 2, pp. 951, 952, and page 988 and sequence,.andare reinforced by the conclusions in Thornely. v. Hebson, ubi 8Up1'a. The exprllSSion of Lord TlwrERDEN (ABBOTT, O.J.) in this case is very apt: "If, in this case. it had appeared that the owners bad. used all the means I.D their power. and were still unable to have paid this salvage, it would have been very different; but that is not 80. and I am therefore of opinion that the assured is not entitled to recover for a total loss... OJpelin v. In.mranceUo., 9 Wall. 461; Richeliett &- O. Na.'IJ.Oo. v. BOBton Marine.!"". (b., 136 U. S. 408, 10 Sup. Ct.. Rep. 934; and Shepherd v. Henderson, L. R. 7 App. Cas. 49,-cited by the plaintiff,-reiterate, for the sake ;of applying them to the pending facts, rules of law fundamental and well known as applicable to abandonments under policies which cover constructive total losses, but; have no close relation to the suits at bar. We understand the proposition that the policies should be treated as effecting a separate in@urance for each head of cattle,. so that the loss of anyone created a claim against the underwriters for an absolute total loss so far as that One was concerned, is not now insisted on. The judgment of the court below in El8Ch case is affirmed.
McKEAN t1. ARCHER.
(Circu.U Court, D. IndiaJna. October 28, 1891.) No. 8,748.
1.
LDrrrA.'I'IOK OJ' .A.OTIoNS-eoNSTRUOTION OJ' STA.TUTB.
2.
Act Ind. April 7, 1881, provides that actions must be brought wIthIn the timell named. all follows: "Upon. promissory notes, bills of exchange, and other contracts for the payment of money, hereafter executed, within ten years: provided, that all Buch contracts aB have been heretofore executed may be enforced, under this act, within Buoh time only. as they have to run before being barred under the existing law, etO. Hel,d" the .words "existing law" apply to laws existing when the contract was made. and not when the Buit was brought; and therefore contracts executed prior to the act are Btill enforceable within 20 yearB, 88 before. tracts, and provides a different period for ·future contracts, does not reniler it In.
B.lMll-eoNB'1'ITUTIONAL LA.W-Sl'llCIA.L LllGI8LATION.
The fact that the statute continues in lorce one period of limitation for past oon-
valid, 88 lacking a uniform operation, or being in the nature of special legislation. for it is general and uniform upon all persons or things. under the same circUmIIta_