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4 U.S. 283 (Dall.)

Watson et al.
The Insurance Company of North-America.

Supreme Court of Pennsylvania.

September Term, 1803

THIS was an action on a policy of insurance, in which the declaration was for a total loss. On the trial, it appeared, that the assured had demanded payment of a total loss, which the defendants refused to pay; but there was no evidence of an actual abandonment, or offer to abandon, to the underwriters, before the suit was instituted; and the proof was of a loss in its nature total. The jury gave a verdict, in favor of the plaintiff, finding damages, as for a partial loss; subject to the opinion of the Court, upon a motion for a new trial, to consider two points reserved: 1st. Whether a previous abandonment, or offer to abandon, was indispensably necessary, to enable the plaintiff to recover in this suit? And, 2d. Whether, on a declaration for a total loss, and proof of a loss in its nature total, the jury can give damages for less than a total loss?

After argument by M. Levy and Lewis, for the plaintiffs; and by Moylan, E. Tilghman, and Ingersoll, for the defendants, the COURT ( consisting of SHIPPEN,Chief Justice, and YEATES and SMITH, Justices) were of opinion, that the jury might find damages for a partial loss; although the declaration claimed for a total loss; and although there was no proof of an actual abandonment, or an offer to abandon, to the underwriters.

But BRACKENRIDGE, Justice, said, that he thought there was sufficient evidence at the trial, to induce the jury to find an abandonment; and, on that ground alone, he concurred, in refusing a new trial.

For, the general ground, on which the opinion of the rest of the Court was founded, did not appear to him so conclusive, and so satisfactory, as it did to them.

Motion for a new trial refused: and judgment rendered on the verdict for the plaintiffs.

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