CAMBERLING v. MCCALL, 2 U.S. 280 (1797)
Syllabus
U.S. Supreme Court
CAMBERLING v. MCCALL, 2 U.S. 280 (1797)2 U.S. 280 (Dall.)
Camberling
v.
M'Call
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]
Opinions
v.
M'Call 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.
After the second trial, and argument on the special verdict, The Court seemed to be of opinion, 'that the plaintiff could not recover; because, he had not made proof of the loss, according to the terms of the policy, three months previously to the commencement of the action.' No opinion was then, however, expressed on the second objection made by the defendant's counsel; but the Court asked, whether he would wave the objection to the time of commencing the action, that the cause might be decided on its merits? And he refused to comply. Footnotes [Footnote *] The Jury, after being out some time, returned to the Bar, and declared they could not agree, on account of the lapse of time, and expressed a desire to examine Mr. Kaighn (who had effected the insurance as agent) relative to the character and conduct of the plaintiff. It thereupon appeared, that the witness had not heard from the plaintiff from 1786 till 1792, when he desired that the policy might be given to Mr. Rose to be recovered; and that, sometime before, in a conversation with the witness's partner, the plaintiff had said, as a reason for not applying to the underwriters, 'that he must obtain the captain's protest and vouchers of the loss, before he could recover on the policy.' It, also, appeared, that the plaintiff was a man of irreproachable character. The Jury, having received this further satisfaction, soon delivered a verdict for the plaintiff.
U.S. Supreme Court
CAMBERLING v. MCCALL, 2 U.S. 280 (1797) 2 U.S. 280 (Dall.) Camberlingv.
M'Call 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
Page 2 U.S.
280, 281
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
Page 2 U.S.
280, 282
the special verdict: For, when a vessel has never been heard of,
after such a lapse of time, the legal presumption is, that she is
lost. 2 Stra. 1199. Parke. 71. 2.
For the defendant, Lewis urged two points: 1st. That proof of a
loss had not been made three months previously to the commencement
of the present action, agreeably to the stipulation contained in
the policy. 2nd. That the assured had never abandoned to the
underwriters.
On the first point he observed, that the memorandum at the foot
of the policy provided, that 'in case of a loss, the money shall be
paid in three months after proof of the same'; and if the
underwriter was entitled to three months for making payment, after
the proof had been exhibited, there was no cause of action at the
time this suit was instituted. Some previous evidence of the loss
was indispensable, by the express agreement of the parties. The
nature of the evidence is not particularly defined; but the protest
of the captain, the affidavit of one of the seamen, or some other
credible attestation of the fact, should have been furnished. If a
creditor agrees to give a day for payment, after a certain event
takes place, he cannot sue before that day arrives. In the present
instance, it is not sufficient to make the proof in Court; it
should be made in pais; as in the case in Palmer 160, where the
ground of action was a declaration by the defendant, that 'after
you have proved that I struck you, &c. then I do assume to pay
you L 20.' The plaintiff's letter demanding payment of the
underwriters was dated the 1st of November 1792; and the suit was
instituted the 1st of January 1793. The objection must, therefore,
be fatal to the right of action.
On the second point, it was insisted, that the duty of the
assured required him to give notice of the loss, in a reasonable
time, and to abandon to the underwriter. Parke. 71. 2. 161. 2 Mag.
Ins. 174. 177. Had this been done, the underwriter would have been
enabled to make a diligent and seasonable enquiry after the vessel;
which may not have been found, because she has not been properly
sought for. Six years elapsed between the date of the policy, and
the notice of the loss. The delay is unreasonable; and, if it does
not entirely destroy all means of investigation, must certainly
encrease to the underwriter, the uncertainty and difficulty of
ascertaining the reality of the loss; while it opens a door to the
assured for the perpetration of the greatest frauds. It is for this
reason, that the law not only requires an abandonment, in such
cases, but the abandonment should be made on the first opportunity;
and that, even where there is no hope of recovering any part of the
property. It is like the case of notice to the drawer of a Bill of
Exchange when the drawee refuses payment. 1 T. Rep.
Page 2 U.S.
280, 283
613. 4. Wesk. p. 5. s. 15. Ibid. p. 344. s. 3. Ibid. 546. s. 4.
2 Mag. 174. 2 Emerig. 173.
In reply, M. Levy observed, on the first point, that the proof
of the loss arose, in legal contemplation, from the fact, that the
vessel had sailed, but for an unreasonable length of time had not
been heard of; and therefore, he insisted, that it was not
necessary to make the proof of loss at the Insurance Office, three
months before the right of action accrued. In answering the second
point, he treated the idea of an abandonment, where no portion of
the property was saved, as novel, unprecedented, and absurd. The
term abandonment has received a fixed and definite signification;
to which, it is essential, that something should be saved, in order
that something may be abandoned. Parke. 161. T. Rep. 613. 4. The
real purpose, for requiring an abandonment, must be to transfer to
the underwriters the property and the means of reclaiming and
preserving it, which must otherwise continue in the assured. But
when it is demonstratively obvious, that the subject matter has
utterly ceased to exist; that the loss is total and final; as where
a ship has been consumed by fire, or has sunk in the ocean; what
can be the use, or benefit of an abandonment? And if there can be
no use, Lex neminem cogit ad vana seu impossibilia. The fallacy of
the opposite argument lies in an application of the duties, which
the law has imposed upon the assured, in the case of one
description of a total loss, to a total loss of an entirely
different description. The term 'total loss,' in relation to
insurances, is technical; and includes, as appears from Parke 110.
61. two species; one, where a part of the property has been saved,
and still exists; the other, where the whole property is utterly
destroyed. In the former case, abandonment is necessary to the
safety of the insurer; it is the title, without which he cannot
reclaim the residuum, nor exercise those acts of ownership, that
are essential to reduce it to possession. But in the latter case,
no such purpose can be contemplated, or attained; and the common
sense of mankind would be startled at the idea, that it was
necessary to give up to another, the ownership of a thing not in
being; of a thing which had been completely annihilated. To require
this useless and absurd act, from the assured, under the heavy
penalty of forfeiting his insurance, would be wantonly oppressive
and unjust. The analogy, stated by the opposite counsel, between
notice of abandonment, and notice of a protested bill of exchange,
is admitted and adopted: But, it must be recollected, that the
holder of the bill neglecting to give notice, only loses his
recourse upon the drawer, in case the drawee had effects in his
hands; for, if the drawee had no effects, there need not be notice
given of the refusal to accept, or pay; and the holder shall not
lose his debt for omitting
Page 2 U.S.
280, 284
to give a notice, which could be of no use to the drawer. 1 T.
Rep. 410. The principle and authority of the cases are the same. If
any thing exists, that can be abandoned, the insurer ought to have
notice; but if a notice can be of no use to him, there can be no
reason why he should receive it, any more than the drawer of a bill
of exchange, who has no effects in the hands of the drawee. It is
true, that it would be expedient, on the part of the assured, to
give notice and abandon, under any circumstances of loss; because
then, if any portion of the property insured was saved from the
general wreck, he would have a complete right to an indemnity;
which he would not have, should a part of the property be saved,
and he has neglected that precaution. The omission, however, is at
the peril of the assured; and the risques to which the omission
exposes him, will always be a sufficient guard against fraud. Every
prudent man will give the notice: ( O designing man will neglect
it, lest it should frustrate his purpose. Those who omit it will,
therefore, generally, be of that description of men, from whom
little is to be feared; and the omission will be the mere effect of
inadvertancy, or ignorance. But, although prudence recommends the
practice, the law does not enjoin it. If, indeed, it is made
essential, that notice, which was intended only for a shield
against the assured, will be converted into a sword, in the hands
of the underwriter; and a Court of Justice must condemn the owner
of a vessel and cargo to sustain the loss, against which he meant
to secure himself, merely for omitting a form, which, if complied
with, could not have produced the slightest advantage to the
underwriter. The penalty is surely disproportioned to the
transgression.
On the first trial, the Court, in the charge to the Jury,
expressed a wish, that the plaintiff had given earlier notice of
the loss to the underwriters; as it would have rebutted every
suspicion of unfair and collusive conduct. 'It was enough, however,
(the Chief Justice observed) that no fact of that kind had been
proved, nor, indeed, alledged; since fraud is never to be presumed.
The defendant's counsel has urged, that, before the assured can
recover for a total loss, there must be an express and seasonable
abandonment. But by the word 'abandonment,' I understand a
yielding, ceding, or giving up; and, in general, it applies to
cases, where there has been a great loss, and the assured,
resorting to the policy for an indemnity, surrenders whatever is
left of the property insured to the underwriters. We cannot,
however, conceive, that when there is nothing left to give up,
there can be any thing to abandon; and if there is nothing to
abandon, it would be absurd, as well as useless, to insist upon a
formal act of abandonment. Under all these circumstances of the
case, therefore, we think that the plaintiff is
Page 2 U.S.
280, 285
entitled to recover the principal sum insured, and interest, to
commence at the expiration of three months after the demand for
payment.'
Verdict for the Plaintiff. * After the second trial, and argument on the special verdict, The Court seemed to be of opinion, 'that the plaintiff could not recover; because, he had not made proof of the loss, according to the terms of the policy, three months previously to the commencement of the action.' No opinion was then, however, expressed on the second objection made by the defendant's counsel; but the Court asked, whether he would wave the objection to the time of commencing the action, that the cause might be decided on its merits? And he refused to comply. Footnotes [Footnote *] The Jury, after being out some time, returned to the Bar, and declared they could not agree, on account of the lapse of time, and expressed a desire to examine Mr. Kaighn (who had effected the insurance as agent) relative to the character and conduct of the plaintiff. It thereupon appeared, that the witness had not heard from the plaintiff from 1786 till 1792, when he desired that the policy might be given to Mr. Rose to be recovered; and that, sometime before, in a conversation with the witness's partner, the plaintiff had said, as a reason for not applying to the underwriters, 'that he must obtain the captain's protest and vouchers of the loss, before he could recover on the policy.' It, also, appeared, that the plaintiff was a man of irreproachable character. The Jury, having received this further satisfaction, soon delivered a verdict for the plaintiff.
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