CAMBERLING v. MCCALL - 2 U.S. 280 (1797)
U.S. Supreme Court
CAMBERLING v. MCCALL, 2 U.S. 280 (1797)
2 U.S. 280 (Dall.)
Supreme Court of Pennsylvania
December Term, 1797
This was an action on the case, on a Policy of Insurance dated the 28th of October 1786, on the schooner John, Nathaniel Simmons master, on a voyage from Bath, or Washington, in North Carolina, to the Island of St. Thomas. It was a valued policy, in which the Plaintiff's moiety of the Schooner was valued at L 300; and the action was brought for a total loss.
The cause was first tried by a special Jury in September Term 1796, when a general verdict was found for the Plaintiff, with 289 dollars and 84 cents damages; but, in consequence of an agreement between the counsel, there was a second trial in March term 1797, when the jury found a special verdict, in these terms.
- 'And now at March term A. D. 1797, to wit on the twenty-fourth of the said month, a jury to wit, &c. being duly impanelled, tried, sworn and affirmed, respectively, to try the issues joined between the parties aforesaid, on their oaths and affirmations aforesaid, say, that on the 28th October 1786 the plaintiff then and ever since resided in the state of North Carolina, was owner of one half of the schooner in the declaration mentioned, her tackle, apparel and furniture, of the value of three hundred pounds, lawful money of Pennsylvania, and on
the same day caused the same to be insured (prout policy) which on the day and year aforesaid, at the County aforesaid, for the consideration or premium therein mentioned, was underwritten by the defendant, for the sum of one hundred pounds, lawful money, for the voyage, in the said policy mentioned; that the said schooner, on or about the ninth day of November 1786, was cleared out, and failed on the voyage in the policy mentioned, and to the knowledge of the said Jurors, has never since been heard of; from whence, the Jury presume that the said vessel and cargo, were sunk, and totally lost; that some time in the year 1787, the captain and seamen, who failed in said schooner, on the voyage aforesaid, were in the State of Virginia, and notice thereof was afterwards, and before the date of the plaintiff's letter, of the first of November 1792, given to the plaintiff; but at what particular time, the Jurors know not; that the plaintiff did not give any notice thereof, or of the supposed loss of the said schooner, to the defendant until the first day of November 1792, when the plaintiff informed the defendant by letter, that the said schooner had sailed about the ninth of November 1786, on the voyage in the policy mentioned, and that he had not since seen nor heard from the said captain, nor received any part of the property in the vessel or cargo, nor had any person on his behalf; which information the Jury find to be true; and the said Jurors further find, that the plaintiff did not abandon to the defendant, and to the other underwriters, on the said policy, or to either of them, his property in the said schooner, or any part thereof, before the bringing of the said action; nor has he since abandoned the same; nor was any other proof made of the said loss, previously to the bringing of the said action, than the information given as aforesaid, by the plaintiff to the defendant. And the Jurors aforesaid, further find, that John Kaighn one of the partners of Kaighn and Attmore, who effected the said insurance, as agent of the plaintiff, has ever since resided in the City of Philadelphia, and had, until the present action was brought, the policy aforesaid in his possession; and that the defendant has ever since the date of the said policy resided in the City of Philadelphia. If upon these facts the law be with the plaintiff, they find for the plaintiff, and assess damages to the amount of ninety-eight pounds, with interest from December 1, 1794, amounting in the whole to L. with fix pence costs; but if the law be with the defendant, they find for the defendant.'
The arguments before the Jury on the trials, and before the Court on the special verdict, were, in substance, as follow.
For the plaintiff, M. Levy insisted, that every fact, which could be necessary to entitle his client to recover, was found by [2 U.S. 280, 282]