Holbrook v. Connelly. Cin. Ins. Co. v. Duffield et al.

HENRY L. HOLBROOK, ADMINISTRATOR OF BERNARD CONNelly, v. EDWARD CONNELLY.

MOTION for leave to file a petition in error.

The plaintiff sued the defendant in the common pleas of Fairfield county. The defendant demurred to the petition. The court overruled the demurrer, and the defendant, by leave, answered. The plaintiff demurred to the answer; which demurrer was sustained, and an amended answer filed. And the plaintiff moved to strike out a part of the amended answer; which motion was sustained. To these several rulings of the court, the defendant excepted. And in this stage of the case, while still pending, and before final judgment, the defendant comes here and asks leave of this court to institute a petition in error, to review and reverse the above-mentioned decisions of the common pleas.

BARTLEY, C. J. No final order, within the meaning of the 512th section of the code of civil procedure, is shown to have [200 been made. It does not appear that either of the decisions made "in effect determined the action and prevented the judgment." For aught that appears, the defendant may yet succeed in his defense to said action. The record, therefore, discloses no foundation for a proceeding in error.

Motion overruled.

THE CINCINNATI INSURANCE COMPANY v. CHARLES DUFFIELD AND

OTHERS.

A steamboat, insured only as to three-fourths of its agreed value, was wrecked and abandoned to the insurance offices. The policy of insurance contained the following clause: "And in all cases of abandonment, the assured shall assign, transfer, and set over to said insurance company all their interest in and to the said steamboat, and every part thereof, free from all claims and charges whatever." Held—

1. The term abandonment, as used in policies of marine insurance, is a technical one, denoting an act, the legal effect of which is to transfer to the underwriter only that interest of the insured which is covered by the policy,

Cin. Ins. Co. v. Duffield et al.

though the legal title to, and right to dispose of, the entire wreck, thereby passes to the insurer; and in giving a construction to such policy, this term will be supposed to have been used in its technical legal sense, unless a different intention is clearly expressed.

2. The owners had an interest in the boat, after abandonment, of one-fourth, as to which they were their own insurers.

PETITION in error to reverse the judgment of the Superior Court of Cincinnati, at general term.

An insurance was effected on the steamboat Sam Cloon, in four insurance companies; the agreed value of the boat being $20,000, and the amount insured in each office $3,750, or in all $15,000. The policy in each case was in the same form and with the same conditions.

The steamboat having been sunk in the Mississippi river was, 201] *by a writing executed for the purpose, abandoned to the insurance companies; who, by means of persons acting for them, raised the boat, and realized from the wreck, after deducting charges and expenses, the sum of three thousand dollars. An action was brought by the owners, who effected the insurance, to recover onefourth of that sum, claiming that they still retained, after the abandonment, an interest of one-fourth in the wreck. This claim was resisted by the insurance companies on the ground that by the terms and conditions of the policies, the owners were required to abandon not only to the extent of the interest insured, but all interest in the subject-matter insured. The part of the policies supposed to bear on this question was as follows: "And in case of loss or misfortune, as aforesaid, it shall be the duty of the assured, their agents or assigns, to use every reasonable effort for the safeguard and recovery of the said steamboat, and every part thereof, and if recovered, to cause the same to be forthwith repaired, if practicable; and in case of neglect or refusal on the part of the assured, their agents or assigns, to adopt prompt and sufficient measures for the safeguard and recovery thereof, then said insurers are hereby authorized, and shall have the election to interpose and recover said steamboat, and cause the same to be repaired for account of the assured, to the charges of which the said insurance company will contribute in proportion as the sum herein insured bears to the agreed value in this policy, or to consider such neglect or refusal as an abandonment, and be entitled to recover said steamboat, or any part thereof, at their own expense. and for their own

Cin. Ins. Co. v. Duffield et al.

use and benefit; and in no case whatever shall the assured have the right to abandon, until it shall be ascertained that the recovery and repairs of said steamboat are impracticable; nor sell the wreck, or any part thereof, without the consent of this company; and in all cases of abandonment the assured *shall assign, trans- [202 fer, and set over to said insurance company all their interest in and to the said steamboat, and every part thereof, free of all claims and charges whatever."

The action was submitted for trial to the Superior Court of Cincinnati, at special term, and judgment was rendered in favor of the insured, for one-fourth of the sum realized from the wreck.

To reverse this judgment, a petition in error was preferred by the insurance company before the Superior Court, at general term, and the judgment at special term, was affirmed.

To reverse this judgment of affirmance, the present petition in error is prosecuted in this court.

In argument, counsel confined themselves mainly to this question: Under a form of policy above mentioned, what is the legal effect of the term abandonment? Is it to transfer to the underwriter, as and for his own, the entire interest of the insured in the proceeds of the wreck, or only the interest which is covered by the policy?

Coffin and Mitchell, for plaintiff in error: Cincinnati Insurance Co. v. Blackwell, 4 B. Monroe, 541; Phillips, 388, 390, 459, 460; Marshall, 519; Abbott, 69, 150, note; 13 Mass. 96.

John S. Nixon, for defendants in error: Marshall on Insurance, 1157; The Patapsco Insurance Co. v. Southgate et al., 5 Pet. 622; Emerigon, 684; Phillips, 382; Higgenson v. Dall, 13 Mass. 96.

SCOTT, J. In order to have a clear apprehension and correct solution of the question made in this case, it is necessary to understand what is meant by an abandonment; what are its legal effects, and what would be the legal rights of the parties, independent of the provisions of the policy on the subject of abandon

ment.

*The term "abandonment," as used in policies of marine [203 insurance, and in the law regulating that subject, is a technical one. "An abandonment is an act on the part of the assured, by which

Cin. Ins. Co. v. Duffield et al.

he relinquishes and transfers to the underwriters his insurable interest, as far as it is a subject of the policy, or the proceeds of it, or the claims arising from it." Phil. on Ins. 382.

"The abandonment can not transfer the interest of the assured any further than that interest is covered by the policy." Arnould, 1159. "The abandonment, when properly made, operates as a transfer of the property to the underwriter, and gives him a title to it, or what remains of it, as far as it was covered by the policy." 5 Pet. 622.

Such we understand to be the well-settled legal effect of an abandonment. It operates as a transfer to the underwriter of the property insured, only to the extent of the indemnity contemplated by the policy; and this limitation of its operation is not only sanctioned by the authority of the elementary writers and the general current of decisions, but has its foundation in equity and sound principle.

Upon what principle of equity should the underwriter, in case of abandonment, take the wreck, not only of that which he has insured, and of which his contract binds him to pay the full agreed value, but also of that which he has not insured, and for which he is in no event liable to pay?

It would seem equitable-and in ordinary cases of insurance such is doubtless the law-that where an abandonment may be and is legally made, the wreck, or its proceeds, inure to the benefit of those who bear the burden of the loss-to the underwriters in proportion to the parts by them severally insured, and to the owner 204] in proportion to the part remaining uninsured, and as to which he is virtually his own insurer. The ground upon which the insurer takes the wreck is, that he pays the party assured for a total loss-and to the extent to which his contract binds him thus to pay, to the same extent, and no further, is he entitled to the proceeds of the wreck. His rights originate from his obligations, and can not be more than co-extensive.

But did the parties intend, by the clause in the policy out of which this controversy arises, materially to change the legal rights of the insurer and the assured, growing out of and incident to an abandonment?

That clause is in these terms: "In all cases of abandonment, the assured shall assign, transfer, and set over to said insurance com

Cin. Ins. Co. v. Duffield et al.

pany all their interest in and to the said steamboat, and every part thereof, free of all claims and charges whatever."

The right of the party assured to "abandon" in a proper case, seems here to be contemplated and strictly recognized; and yet, if we adopt the construction claimed by the plaintiff in error, the policy does not permit the making of a legal technical abandonment under any circumstances, but substitutes therefor a transfer, having an effect which the law does not attach to an abondonment. That the "claims and charges," mentioned in this clause, were understood by the parties to refer, not to the interest of the party insured in the boat, but to mortgages or other liens held by other parties against the boat, is satisfactorily shown by the terms of the guaranty taken by the plaintiff in error from the defendants on the payment of the sum insured.

The construction claimed would, in cases of partial insurance, often prevent an abandonment, where the settled rule of law would authorize it, or would defeat that indemnity, which is the very ground and object of all legitimate insurance.

*A construction leading to such results, so vitally changing [205 the legal rights of the parties, and working apparent injustice, ought not to be adopted, unless required by clear and explicit language.

We think a different construction may be fairly given to the clause in question-that it was not intended to change the legal effect of an abandonment, which the framer of the policy may be presumed to have understood, but to prescribe the form in which the transfer should be made to the underwriters of the interest which they derive by law from the abandonment, and to point out the mode in which the intention to abandon should be unequivocally expressed.

The elementary writers tell us that "no particular form of abandonment is prescribed, nor is the form material;" "it has not been. considered necessary, as a general rule, that it should be made in writing." Phillips on Ins. 447.

In Chesapeake Insurance Co. v. Stark, 6 Cranch, 272, C. J. Marshall, giving the opinion of the court, said: "The informality of the deed of cession is thought unimportant, because, if the abandonment was unexceptionable, the property vested immediately in the underwriters, and the deed was not essential to the rights of either party."