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
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Due application was made by the plaintiff to the corporation
defendants for a policy of insurance upon the brig
Sicilia, of which he was the owner, and on the 11th of
July, 1870, he effected with the defendants such a contract, for
the period of one year, lost or not lost, brig then lying in the
port of New Orleans, whereby the defendants insured the vessel
against the perils of the seas and other risks of her intended
voyages, as more fully appears in the policy.
It also appears that the plaintiff, five days later, having
freighted the brig with cotton for Helsingfors, in the Gulf of
Finland, also effected insurance, with the defendants, upon her
freight list for $5,700, payable to his own order in gold, as shown
by the certificate filed in the case, which represents and takes
the place of a policy as fully as if the property was covered by
such an instrument, issued direct to the holder of the
certificate.
Well appointed and in good order and condition, the brig, on the
20th of the same month, left her port of departure
Page 83 U. S. 385
laden with a valuable cargo of cotton and properly officered and
manned, but was subsequently compelled, by perils of the seas and
unavoidable accidents, to put into the port of Matanzas, Cuba, in
distress and disabled, for the security of the property concerned
and the preservation of the lives of those on board [?], that being
disabled and in want of repairs she remained in that harbor for
that purpose, and that while there, and before her repairs were
completed, she was driven ashore by a hurricane, and in spite of
every exertion which could be made to save her, was wrecked, and
with her cargo, was entirely lost.
Payment of the sums insured being refused, the plaintiff
instituted the present suit to recover the amount, claiming also
$15,000 in addition thereto, as damages for the delay in fulfilling
the contract. Testimony was taken, and the parties went to trial;
and the jury, under the instructions of the court, returned a
verdict for the plaintiff, and the defendants excepted and sued out
the present writ of error.
By the terms of the policy, the brig was valued at $10,000, but
the risk taken by the defendants on the vessel was only $7,000, as
appears by the policy.
Exceptions were taken by the defendants to the refusal of the
court to instruct the jury, as requested, and to the instructions
given by the court to the jury, and they also assign for error the
finding by the jury, of $5,000 damages, and the allowance of the
same in the judgment of the court, and also, of the allowance in
the judgment of the loss under the policy.
These allowances are specified in the verdict, substantially as
follows: That the plaintiff shall recover the sum of $7,000 under
his policy on the vessel, the sum of $5,700, gold coin, under his
policy on the freight list, with interest, as prayed in his
petition, and the further sum of $5,000 damages, with interest at
the rate of five percent from the date of judicial demand.
Judgment was rendered for the plaintiff, as follows: by reason
of the verdict it is ordered, adjudged, and decreed that the
plaintiff do have and recover the sum of $7,000
Page 83 U. S. 386
under his policy on the brig, the sum of $5,700, gold coin,
under his policy on the freight list, together with five percent
interest on said two sums from September 29, 1870, till paid; and
the further sum of $5,000 damages, with five percent interest from
the 14th of December, the day of judicial demand, till paid, and
costs of suit.
Errors apparent in other parts of the record may be reexamined,
as well as those which are shown in the bill or bills of
exceptions, and it is too plain for argument that the verdict and
judgment are a part of the record. Whenever the error is apparent
in the record, the rule is that it is open to reexamination,
whether it be made to appear by bill of exceptions or in any other
manner, and it is everywhere admitted that a writ of error will lie
when a party is aggrieved by an error in the foundation,
proceedings, judgment, or execution of a suit in a court of record.
[
Footnote 1]
Damages were claimed by the plaintiff in this case for alleged
loss on account of the failure of the defendants to make payments
as stipulated in the policy, and it appears by the verdict that the
jury awarded to the plaintiff $5,000 on that account, in addition
to lawful interest. Apart from that, it also appears that the
court, in computing the judgment, allowed the same sum for the same
claim.
Interest is allowable as damages in such a case from the time
the payments were due, or from demand made, where the defendant
refuses to account or make payment, but the plaintiff cannot
recover special damages for the detention of money due to him
beyond what the law allows as interest. [
Footnote 2] Where a principal sum is to be paid at a
specific time, the law implies an agreement to make good the loss
arising from a default by the payment of lawful interest. [
Footnote 3]
Page 83 U. S. 387
Tested by these considerations, it is quite clear that the act
of the jury in allowing the plaintiff $5,000 for the detention of
the money due under the policies, in addition to lawful interest,
and the act of the circuit court in including that amount in the
judgment, were erroneous; and inasmuch as the error is apparent
both in the verdict and in the judgment, it is equally clear that
it is a matter which is reexaminable in this Court on a writ of
error, and, having come to that conclusion, the only remaining
inquiry in this connection is what disposition shall be made of the
case.
Errors of the kind, it is insisted by the defendants,
necessarily require that a new venire shall be ordered, but the act
of Congress to further the administration of justice [
Footnote 4] provides that the appellate court
may affirm, modify, or reverse the judgment, decree, or order
brought before it for review, or may direct such judgment, decree,
or order to be rendered, or such further proceedings to be had by
the inferior court as the justice of the case may require; and in
view of that provision the court is not inclined to adopt the
course suggested by the defendants, as it would lead to unnecessary
delay and expense.
Verdicts, it is said, are either general or special, and that if
there is error in a case where the verdict is general it can only
be corrected by a new trial, and it must be admitted that the rule
as suggested finds much countenance in the text books; nor will it
be necessary to depart from that rule in the present case. Strictly
speaking, a special verdict is where the jury find the facts of the
case and refer the decision of the cause to the court, with a
conditional conclusion, that if the court is of the opinion, upon
the whole matter as found, that the plaintiff is entitled to
recover, then the jury find for the plaintiff; but if otherwise,
then they find for the defendant. [
Footnote 5]
Examples of special verdicts less formal, however, may be found,
and the usual course is to sustain such verdicts if
Page 83 U. S. 388
they contain all the facts necessary to a proper judgment
between the parties in respect to the matter in controversy. Courts
also, in the trial of issues of fact, often propound questions to a
jury, and the rule is well settled that such a special finding,
even when it is inconsistent with the general verdict, shall
control in determining what judgment shall be rendered in the case.
[
Footnote 6]
Undoubtedly a special verdict is erroneous if it does not find
all the facts essential to the rendering of the judgment; but if it
contain all the facts required for that purpose the better opinion
is that the court of original jurisdiction may render such judgment
as the facts found require, and if they err, and the error is
apparent in the record, that such error may be reexamined on writ
of error in this Court. [
Footnote
7]
Confirmation of this view as the correct one is also derived
from the act of Congress [
Footnote
8] which permits parties to waive a jury and submit the issues
of fact, in civil cases, to the court, as the provision in that act
is that the finding may be general or special, and that it shall
have the same effect as the verdict of a jury. Special findings,
under that provision, never have a conditional conclusion, and yet
the review extends, by the express words of the act, to the
determination of the sufficiency of the facts found to support the
judgment.
All the facts are found in this case, and they are all apparent
in the record, and inasmuch as the question to be determined is
what judgment ought to be rendered on those facts, the court is of
the opinion that it is not necessary to order a new venire.
Five bills of exceptions were tendered and allowed, as
follows:
Page 83 U. S. 389
(1) Because the court refused to instruct the jury that if they
found that the plaintiff abandoned the voyage when he had no right
to make the abandonment under the policy, then the plaintiff cannot
recover for the insurance on the freight list; but the bill of
exceptions states that the court refused to give the charge because
it was in proof that an abandonment had been made and accepted
without fraud and in accordance with the advice of the defendants,
which is all that need be said on the subject.
(2) Because the court refused to charge the jury that an
abandonment made by the plaintiff through error and accepted
through error by the defendants, whether conditionally or
unconditionally, is null and void, if not warranted at the time,
under the policy of insurance; but the bill of exceptions states
that the court refused so to instruct the jury because no evidence
had been given to show error by either party, which is certainly a
good reason for declining to give the instruction. [
Footnote 9]
(3) Because the court refused to instruct the jury substantially
as in the first request, and which was declined for the same
reason.
(4) Because the court refused to instruct the jury as requested
in respect to a policy of reinsurance executed by the defendants on
the cargo of the brig, but the record contains no sufficient
information that such an instruction was material to the issues
between the parties.
(5) Because the court instructed the jury that, independent of
the abandonment, if they believed there was an actual total loss,
by storm and disaster of the sea, the plaintiff had a right to
recover. Doubt cannot be entertained of the correctness of that
instruction as an abstract proposition, and inasmuch as it is not
stated in the bill of exceptions that evidence had not been given
sufficient to warrant the jury in passing upon the question, it is
plain that it furnishes no proper ground to reverse the
judgment.
Deviation is also set up as a defense, but the record
contains
Page 83 U. S. 390
no evidence upon the subject, nor is any such question presented
in anyone of the bills of exceptions.
Judgment reversed and modified by disallowing the sum of
$5,000 damages found by the jury and included in the judgment, and
the interest allowed on the same, and the cause remanded with
directions to enter a judgment for the plaintiff for the residue
found by the jury, with interest.
[
Footnote 1]
Suydam v.
Williamson, 20 How. 433,
61 U. S. 437;
Bennett v.
Butterworth, 11 How. 669;
Slacum v.
Pomeroy, 6 Cranch 221;
Garland v.
Davis, 4 How. 131;
Cohens
v. Virginia, 6 Wheat. 410.
[
Footnote 2]
Kendall v.
Stokes, 3 How. 102;
Pope v. Barret, 1
Mason 117;
Searight v. Calbraith, 4 Dall. 325
[omitted].
[
Footnote 3]
Robinson v. Bland, 2 Burrows 1086; Sedgwick on Damages,
4th ed, 434.
[
Footnote 4]
17 Stat. at Large 197.
[
Footnote 5]
Mumford v.
Wardell, 6 Wall. 432;
Suydam
v. Williamson, 20 How. 432; 3 Blackstone's
Commentaries 377.
[
Footnote 6]
Rambo v. Wyatt, 32 Ala. 363;
Fraschieris v.
Henriques, 6 Abbott Practice Cases (N.S.) 263;
Anonymous, 3 Salkeld 373;
Trust Company v.
Harris, 2 Bosworth 87;
Adamson v. Rose, 30 Ind.
383.
[
Footnote 7]
O'Brien v. Palmer, 49 Ill. 73;
Manning v.
Monaghan, 23 N.Y. 541;
Seward v. Jackson, 8 Cowen
406;
Monkhouse v. Hay, 8 Price 280;
Moody v.
McDonald, 4 Cal. 299;
Langley v. Warner, 3 Comstock
329;
Moffet v. Sackett, 18 N.Y. 528.
[
Footnote 8]
13 Stat. at Large 501.
[
Footnote 9]
United States v.
Breitling, 20 How. 252;
Goodman v.
Simonds, 20 How. 359.
