1. The cases in reference to the line of distinction between a
total and a partial marine loss examined, and the principle
announced that it is not necessary to a total loss that there
should be an absolute extinction or destruction of the thing
insured, so that nothing of it can he delivered at the point of
destination.
2. A destruction in specie, so that while some of its component
elements or parts may remain, while the thing which was insured, in
the character or description by which it was insured, is destroyed
is a total loss.
3. Hence, where machinery was insured, to-wit, the parts of a
sugar-packing machine, and no part of the same was delivered in a
condition capable of use, it is a total loss, though more than half
the pieces in number and value may be delivered and would have some
value as old iron.
Fogarty sued the Great Western Insurance Company on a policy of
marine insurance and recovered a judgment for $2,611.95 and costs.
The policy was an open one, and the endorsement procured by the
plaintiff on it was of insurance for $2,250, on machinery on board
the bark
Ella Adele, at and from New York to Havana, free
from particular average. The memorandum clause of the policy
provided that machines
Page 86 U. S. 641
and machinery of every description were warranted by the assured
free from average unless general. The machinery insured consisted
of the various parts necessary for a complete sugar packing
machine, including, as part of it, three sets of truck irons, and
also other extra truck irons. It was described in the bill of
lading and invoice as eight pieces and eight boxes, composing one
sugar packer and three trucks.
The vessel on which these articles were being transported from
New York to Havana, just before reaching the latter city, was
driven on rocks in a violent gale, was filled with water, and
finally became a total wreck, and was abandoned to the
underwriters. Their agent at Havana took possession, and was
engaged about a month in raising the cargo. A large number of the
pieces composing the plaintiff's machinery was recovered and
tendered to him at Havana, which he refused to receive on the
ground that the insurance company was liable to him as for a total
loss. They denied that under the circumstances of the case there
was a total loss within the meaning of the policy, and the
soundness of the instruction to the jury on that point, given and
refused by the circuit court on the trial, was the only question
now before this Court.
There was very little conflict of testimony as to what was
recovered and what was its condition when tendered to plaintiff. It
was all of iron. About half of it in weight was saved, and the
remainder left at the bottom of the sea. That which was saved was
entirely useless as machinery, and was of no value except as old
iron, for which purpose it would sell for about $50. The machinery
in working order was worth $2,250. That which was saved was much
broken and rusted, so that it would cost more to repair it, polish
it, and put it in order for use than to buy a new machine.
Upon the testimony offered by the plaintiff, the counsel for the
defendant moved the court to instruct the jury that the action
could not be sustained, because it showed that there was not a
total loss. The court declined to do this, and the request was
renewed at the conclusion of the defendant's
Page 86 U. S. 642
evidence, and again declined. Several prayers for instruction
were then presented by the defendant based upon the leading
proposition that if any of the pieces of the machinery insured was
recovered and tendered in specie to the assured, there was no total
loss. These were refused and exceptions taken to all these
refusals, on which error is assigned here. An exception was also
taken as to the charge of the court laying down the law by which
the jury were to decide the question of total loss submitted to
them. That charge was in the following words:
"The meaning of the term 'free from particular average' used in
the policy was that the defendants should be liable only for a
total loss of the subject insured; that the subject insured was not
machines, but machinery, by which is generally understood the
several parts or portions of machines, adapted and fitted to be put
together so as to constitute a machine (in this case, a sugar
packing machine), and, applying the rule of law as to what
constitutes a total loss to this particular subject insured, the
jury will find whether any piece or portion of the machinery
insured arrived at its destination in a perfect condition, so that
it could have been used with its corresponding or connecting pieces
had they also arrived in good condition; in that case, the
plaintiffs could not recover, as the loss would not be total; but
that if every piece of the machinery was so damaged by the perils
insured against as to be entirely unfit for use on being supplied
with its corresponding or connecting pieces, then there was a total
loss of the subject insured as machinery, although the material
itself might still exist; and if they so found, they would find a
verdict for the plaintiff for the sum named in the policy with
interest from the tenth day of September, 1868."
Verdict and judgment having gone for the plaintiff, the
insurance company brought the case here.
MR. JUSTICE MILLER delivered the opinion of the Court.
The question presented in this case for consideration has been
often in the courts, and the discriminations between
Page 86 U. S. 643
what is total loss and what is not are frequently very nice and
delicate. The authorities are by no means uniform or consistent
with each other when, as in the present case, the line of
distinction is very narrow. Several cases bearing upon the one
before us have been decided in this Court, and perhaps a short
review of them may aid us here better than a more extended
examination of the numerous other authorities on the subject.
In the case of
Biays v. Chesapeake Insurance Co.,
[
Footnote 1] the plaintiff was
insured upon hides, the whole number of which was 14,565. Of these,
789 were totally lost by the sinking of a lighter, and 2,491 of
those sunk were fished up in a damaged condition and sold. The
hides were memorandum articles, and this Court held that inasmuch
as less than 800 hides insured as part of a much larger number of
the same kind was lost, it could not be a total loss, and overruled
the argument that it was a total loss as to the 789 hides.
In the case of
Marcardeir v. Chesapeake Insurance Co.,
[
Footnote 2] it is said
that
"It seems to be the settled doctrine that nothing short of a
total extinction either physical or in value of memorandum articles
at an intermediate port would entitle the insured to term the case
a total loss where the voyage is capable of being performed. And
perhaps even as to an extinction in value, where the commodity
specifically remains, it may yet be deemed not quite
settled whether, under like circumstances, it would authorize an
abandonment for a total loss."
In the case of
Morean v. United States Insurance Co.,
[
Footnote 3] more than half of
a cargo of corn was thrown overboard and lost. The remainder was
saved in a damaged condition and sold at about one-fourth the
market value of sound corn. This was held not to be a total loss
because part of the corn was saved, and though damaged was of some
value. It was therefore only a partial loss.
The next case is that of
Hugg v. Augusta Insurance Co.
[
Footnote 4]
Page 86 U. S. 644
The question there arose on an insurance of jerked beef of four
hundred tons, part of which was thrown into the sea and part of the
remainder so seriously damaged that the authorities of the City of
Nassau refused to allow more than 150 of it to be landed. This was
wet and heated, and not in a condition for reshipment. In answer to
a question on this subject certified to this Court by the judges of
the circuit court, it was replied,
"That if the jury found that the jerked beef was a perishable
article within the meaning of the policy, the defendant is not
liable as for a total loss of the freight unless it appears that
there was a destruction in specie of the entire cargo so that it
had lost its original character at Nassau, or that a total
destruction would have been inevitable from the damage received if
it had been reshipped before it could have arrived at Matanzas, the
port of destination."
And though there are some very strong expressions of the judge
who delivered the opinion as to the necessity of the total
destruction of the thing insured to establish a total loss in
memorandum articles, no doubt the language here certified is the
true expression of the court's opinion. And it will be observed
that in this case, as in the case of
Marcardeir v. Chesapeake
Insurance Co., the destruction spoken of is destruction as to
species, and not mere physical extinction. Indeed, philosophically
speaking, there can be no such thing as absolute extinction. That
of which the thing insured was composed must remain in its parts,
though destroyed as to its specific identity. In the case of the
jerked beef, for instance, it might remain as a viscid mass of
putrid flesh, but it would no longer be either beef or jerked beef.
And when the case went back for trial in the circuit, the charge of
Taney, C.J., to the jury places this point in a very clear light.
[
Footnote 5] He says there was
not a total loss at Nassau, because a part of the jerked beef
remained in specie, and had not been destroyed by the disaster. And
if there was reasonable ground for believing that a portion of this
beef could, by repairing the vessel, have been transported to
Page 86 U. S. 645
Matanzas, although it might arrive there in a damaged condition,
but yet retaining
the character of jerked beef, there was
no total loss. The jury found there was a total loss. The case of
Judah v. Randal, [
Footnote
6] where a carriage was insured and all was lost but the
wheels, is another illustration of the principle. A part of the
carriage, namely, the wheels, a very important part, was saved, but
the court held that the thing insured, to-wit the carriage, was
lost -- that it was a total loss. Its specific character as a
carriage was gone.
In the case of
Wallerstein v. Columbian Insurance Co.,
[
Footnote 7] the whole doctrine
is ably reviewed with a very full reference to previous decisions,
and it is there shown that there is far from unanimity in the
language in which the rule is expressed, and the extreme doctrine
of an absolute extinction or destruction of the thing insured is
not the true doctrine, or at least is not applicable in all cases
as a criterion of total loss.
The circuit court was right in holding that what was insured was
machinery -- pieces or parts of a machine -- pieces made and shaped
to unite at points with other pieces so as to make a sugar packing
machine. If parts of them were absolutely lost and every piece
recovered had lost its adaptability to be used as part of the
machine; had lost it so entirely that it would cost as much to buy
a new piece just like it, as to repair or adapt that one to the
purpose, then there was a total loss of the machinery. If no piece
recovered was of any use or could be applied to any use connected
with the machine of which it was a part without more expense on it
than its original cost, then there was no part of the machinery
saved, however much of rusty iron may have been taken from the
wreck. The court went quite as far in behalf of the defendant as
the law justified when it told the jury that the plaintiff could
not recover if any piece or portion of the machinery insured
arrived at its destination in a condition so perfect that it could
have been used with its corresponding or connecting pieces, had
they also arrived in good condition.
Page 86 U. S. 646
We are of opinion that the charge of the court put the case very
fairly to the jury, as we understand the law, and the judgment is
therefore,
Affirmed.
[
Footnote 1]
11 U. S. 7 Cranch
415.
[
Footnote 2]
12 U. S. 8 Cranch
47.
[
Footnote 3]
14 U. S. 1 Wheat.
219.
[
Footnote 4]
48 U. S. 7 How.
595.
[
Footnote 5]
Taney's Decisions 168.
[
Footnote 6]
2 Caine's Cases 324.
[
Footnote 7]
44 N.Y. 204.
