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Insurance Company v. Piaggio, 83 U.S. 16 Wall. 378 378 (1872)

Insurance Company v. Piaggio

83 U.S. (16 Wall.) 378


1. A. brought suit on a policy on vessel and freight, for a total loss. The jury found the whole amount insured with interest and $5,000 besides for damages, and judgment was entered accordingly. Held that the party could not recover damages beyond legal interest, and that there was error on the face of the record.

2. The error held, however, not to require a venire de novo, but to be such that, under the "Act to further the administration of justice," 17 Stat. at Large 197, the court could reverse the judgment and modify it by disallowing the $5,000, and remanding the case with directions to enter judgment for the residue found by the jury with interest, the case being one where all the facts were apparent in the record, though not by a special verdict in form.

3. It is not error to charge that a party assured had no right to abandon, when the insurers have accepted the abandonment.

4. Nor to refuse to charge that an abandonment made through error, and so accepted, is void if not warranted by the policy, when no evidence had been given of error by either side.

5. A judgment will not be reversed for want of a charge requested when the record contains no sufficient information that the charge requested was material to the issues.

6. Nor because the court charges in a way which, though right in the abstract, may not be so in application, when the record does not show that sufficient evidence had not been given to warrant the jury in passing on the question.

Error to the Circuit Court for the District of Louisiana, in which court Piaggio brought suit against the New Orleans Insurance Company for a total loss, sander two policies of insurance: the one for $7,000, on the brig Sicilia, and the other for $5,000 on her freight.

The petition alleged that the brig, having sailed from New Orleans for Helsingfors, in the Gulf of Finland, July 20, 1870, was compelled "by the perils of the seas and unavoidable accidents," to put into Matanzas, Cuba; that the plaintiff, upon news of the disaster, gave information to the insurers and asked whether he should abandon the vessel, and was advised so to do; that thereupon he abandoned to the insurers, and claimed for a total loss, and the abandonment was accepted.

Page 83 U. S. 379

It further alleged that the brig, while in the port of Matanzas, was driven ashore by a hurricane and, with her cargo, wrecked and entirely lost.

It further alleged that the insurers promised to pay the insurance on freight, and informed the plaintiff that they would telegraph to their bankers in London to pay the same to the plaintiff's order, but that soon after they declined to pay or recognize the loss, and recalled their instructions for payment given to their bankers; that when the plaintiff was informed that the insurance on freight would be paid, he drew against the amount on his correspondent in Genoa, to whom he had transferred the certificate of insurance on freight; that his draft was protested, and thereby his credit injured and his business damaged to the extent of $15,000.

It further alleged that the defendants had reinsured on this risk $10,000 with another company on the cargo of the vessel, and had paid to the said company the loss on said risk.

The plaintiff claimed the sums insured on the vessel and freight, and the damage of $15,000 with interest, for the nonpayment.

The answer of the defendants put in issue, by denial, all the allegations of the petition, alleged that the policies were void for nonpayment of premiums; that the brig was unseaworthy; that she put into Matanzas from unseaworthiness, and not from perils of the seas; and that there, the plaintiff's agents finding it impossible to raise money by bottomry to make her seaworthy, telegraphed a false account of her disasters, and that the defendants, trusting thereto, assented to abandonment, and, to accommodate the plaintiff, were willing to advance funds without waiting for the proofs and delays required by the policy; that learning the truth as to the abandonment, they revoked their acceptance of it, and declined to make the accommodation advances.

The answer then alleged that the policies were vitiated by the brig's deviation in voluntarily putting into Matanzas.

The policy set out in the plaintiff's petition contained clauses:

Page 83 U. S. 380

"Warranted not to use ports in the West India Islands between July 15 and October 15."

"No loss except general average shall in any case be paid unless amounting to 75 percent, after deducting proceeds of savings, if any, and exclusive of all charges of ascertaining and proving the loss."

On the trial the defendants requested the court to charge:

"1. That if the jury find that the plaintiff abandoned the voyage when he had no right to make the abandonment of the Sicilia, by reason of repairs needed, falling short of the 75 percent of valuation of said Sicilia, under the warranty of the policy on the hull, then the plaintiff cannot recover on the policy for the freight, and his abandonment of the freight list to the insurers did not bind the latter."

"The court refused to give this charge because it was in proof that an abandonment had been made and accepted without fraud, and under and in accordance with the advice of the defendant."

"2. That an abandonment made by plaintiff through error, and accepted through error by the defendant, whether conditionally or unconditionally, is null and void, if not warranted at the time under the policy of insurance."

"This was refused as irrelevant; no evidence having been adduced of error by either party. The court therefore considered it to be merely a speculative instruction or charge."

"3. As the policy of insurance warrants that the insurers would be liable only for total loss, or constructive total loss, when the damage exceeded 75 percent, if the jury find that the damage to the brig Sicilia, when in the port of Matanzas, did not exceed 75 percent of the value put on her in the policy after deductions stated in said policy, then the plaintiff had no right to make an abandonment."

"The court refused to give the charge because it was in proof that an abandonment had been made and accepted without fraud, and under and in accordance with the advice of the defendant."

"4. That the reinsurance by the defendants of the cargo of

Page 83 U. S. 381

the Sicilia to the amount of $10,000, which had been insured by another company, not being made in favor of the plaintiff, who was a total stranger to this transaction, has no connection with the issues raised as to the policy on the hull and freight of the Sicilia, and therefore can have no bearing on the decision of this jury; and that in the absence of proof as to the warranties in said insurance and reinsurance policies of $10,000 on the cargo, it is impossible to determine whether or not the payment and reimbursement of the said $10,000 were properly and correctly made; and that whether properly or improperly made that circumstance cannot militate either for or against either the plaintiff or defendant in the present controversy."

"The court refused to give the said charge," no reason being assigned.

To these four refusals the defendants excepted.

The court charged (the defendants again excepting):

"That independent of the abandonment, if the jury believe there was an actual total loss by storm and disaster of the sea, the plaintiff has a right to recover."

The jury found a verdict in these words:

"That the plaintiff shall recover from defendants the sum of $7,000 under his policy of insurance in the hull of the vessel; the sum of $5,700, gold coin, under his policy of insurance in the freight list; together with interest on these two amounts, as prayed for in his petition; and the further sum of $5,000 damages, with interest at the rate of 5 percent from the date of judicial demand."

A motion to set aside the verdict and for a new trial being refused, the court thus entered its judgment:

"By reason of the verdict and in accordance therewith, it is ordered, adjudged, and decreed, that the plaintiff do have and recover of the defendant the sum of $7,000 under his policy on the hull of brig Sicilia; the sum of $5,700, gold coin, under his policy on the freight list; together with 5 percent interest on said two sums from September 29, 1870, till paid; and the further sum of $5,000 damages, with 5 percent interest from the 14th of December, the day of judicial demand, till paid, and costs of suit. "

Page 83 U. S. 382

The return to this Court did not contain any of the evidence given at the trial, which seemed to have occupied several days, with an examination of seven witnesses orally, and numerous documents.

The case came here by writ of error on the following assignment of errors:

I. The allowance and computation in the judgment of damages, for nonpayment of the freight insurance, to-wit, $5,000, and interest thereon, over and above the full sums insured in both policies and interest thereon.

II. The allowance and computation in the judgment of the loss under the vessel policy notwithstanding the breach of the warranty against the use of West India ports in that policy, and the loss of the vessel in such a port during such breach.

III. The errors in the refusals to charge, and in the charge, as already set forth in the five bills of exceptions and the foregoing statement.

Page 83 U. S. 384

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