Boole v. Union Marine Ins. Co., Ltd.

WASTE, P. J.

Plaintiff sought to recover under two policies of insurance issued by the defendants, covering chartered freight on the oil barge “Pinta,” which was sunk in San Francisco Bay. The jury found that the barge was not such a constructive total loss as to entitle the plaintiff to recover under the terms of the policies, and returned a verdict in his favor for expenses incurred by him in raising the barge, but against him for the other sums asked. Judgment was duly entered. A motion for a new trial was made by plaintiff and denied.

The judgment on the verdict was entered June 19, 1914. Appeal therefrom was not taken until October 15, 1919. On the same day there was taken an appeal from the order denying the motion for a new trial, which was made on September 15, 1919.

In this court the parties have proceeded upon the theory that" the proper appeal to be considered is that taken from the' order denying the motion for a new trial. We think not. The case falls squarely within the ruling of a recent decision of the supreme court, wherein it was held on facts identical with those presented in the ease at bar that the only appeal to be considered was the appeal from the judgment. On the authority of that case, the appeal from the order denying the motion for a new trial is dismissed.

(Wilcox

v.

Hardisty,

177 Cal. 752, [171 Pac. 947].)

The policies of insurance issued by the defendants to the plaintiff provide that all claims for loss shall be adjusted according to the English law and practice, and that the settlement thereof shall be made in conformity with the laws and customs of England. Conceiving these clauses of the policies to govern the adjustment of the loss in this ease, the court instructed the jury that the question of plaintiff’s right to recover under his claim of a constructive total loss must be determined by the laws and customs of England, and that under such law there is a constructive total loss of a ship only when the cost of repairs exceeds the value

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of the vessel when repaired. It was stipulated that this was the correct statement of the English law, which differs from the California law, which provides that a constructive total loss of a vessel occurs when the cost of repairs would exceed one-half the value of the vessel. (Secs. 2705 and 2717, Civ. Code.) It was admitted at the trial that the “Pinta” was not a constructive total loss under the English law, which was the basis of the court’s instruction, and the resulting judgment for the defendants.