What is reasonable time for abandonment is a question for the
jury to decide under the direction of a court.
The operation of a concealment on the policy depends on its
materiality to the risk, and this materiality is a subject for the
consideration of a jury.
A bill of lading stating the property to belong to A. and B. is
not conclusive evidence, and does not estop A. from showing the
property to belong to another.
Error to the Circuit Court for the District of Maryland in an
action of covenant upon a policy of insurance upon the cargo of the
brig
Sally at and from Surinam to New York.
There was no warranty as to the character of the property.
Upon the trial below, the plaintiffs in error took three bills
of exception, and the verdict and judgment being against them, they
brought their writ of error.
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the Court as
follows:
Page 10 U. S. 339
This case depends on the correctness of the circuit court in
giving some opinions and refusing others to which exceptions have
been taken.
It appears that on 22 October, the assured received notice of
the capture of the vessel insured, and that on the 25th he wrote a
letter abandoning to the underwriters, which letter was received in
course of the mail and immediately acted upon. Some reasons were
assigned by the plaintiff below for not having abandoned more
immediately after receiving notice of the capture, and the
defendant below moved the court to instruct the jury that the
assured did not elect to abandon in reasonable time. To the refusal
of the court to give this instruction the first exception is
taken.
It has been repeatedly declared by this Court that what is
reasonable time for abandonment is a question compounded of fact
and law, of which the jury must judge under the direction of a
court. It does not appear that the court below erred in refusing in
this case to give the instruction required.
The insured was a subject of a belligerent power, but had
resided four years in the United States. His letter representing
the risk was laid before the jury, and a good deal of testimony was
taken to prove that a belligerent not named in the representation
was interested in the cargo. Some countertestimony was also
introduced by the assured. Whereupon the counsel for the
underwriters moved the court to instruct the jury that if they
believe the facts stated by him, there was such a concealment as in
contemplation of law vitiated the policy. This direction the court
refused to give, but did direct the jury that if it should be of
opinion that any circumstances were stated by Ruden or his agent or
that any circumstances were suppressed by either of them which in
the opinion of the jury would increase the risk, then the plaintiff
cannot recover.
To this opinion an exception was taken.
It is well settled that the operation of any concealment on the
policy depends on its materiality to the
Page 10 U. S. 340
risk, and this Court has decided that this materiality is a
subject for the consideration of a jury. Consequently the court
below did right in leaving it to them.
The counsel for the underwriters then gave some very strong
evidence to prove that the property insured was not the sole
property of the assured, but was property in which another person
held a joint interest. Some countertestimony was adduced, on which
the defendant below moved the court to direct the jury to find that
the property was not the sole property of Ruden, but the joint
property of Ruden and another.
This direction also the court refused to give, and did direct
the jury that it was its peculiar province to determine the fact
whether Ruden was the sole owner of the property or not, and to
this opinion an exception was taken.
It is contended by the plaintiffs in error that the testimony
offered by them, among which was the bill of lading stating the
property to belong to Ruden and another, was such as absolutely to
conclude him and estop him from denying that another was concerned
in the cargo.
The Court is not of this opinion. The covering of property does
not conclude the person interested so as to estop him from proving
the truth of the case. There is the less reason for that effect
being given to these papers in this case because the letter to the
underwriters indicated that the cargo might be shipped in the name
of other persons.
If the insured was not absolutely estopped, the court did not
err in permitting the jury to weigh his testimony. It had a right
to weigh it and to decide to whom the property belonged. If its
verdict was against evidence, the only remedy was a new trial to be
granted by the court in which the verdict was found.
There is no error, and the judgment is to be
Affirmed with costs.