Meyer v. Great Western Insurance

Harrison, J. The defendant issued its policy of insurance to the plaintiffs in the sum of nine thousand five hundred dollars against an actual total loss of certain merchandise, consisting of coke, coal, soda-crystals, and soda-ash in the ship Melanesia on her voyage from Newcastle-on-Tyne to San Francisco, and also five hundred dollars on commissions and freight profits. The risks against which the insurance was made were the perils of the sea, barratry of the master and mariners, and other perils usually insured against in a policy of marine insurance. The Melanesia sailed from Newcastle on the twenty-first day of December, 1884, and on the 21st of June following, in consequence of having sprung a leak, she proceeded to Montevideo, where she was repaired and put in a fit condition to proceed on her voyage, and on the 17th of October, 1885, she sailed from Montevideo for Akyab, in India, where she arrived January 4, 1886. Upon her arrival at Montevideo the master discharged the soda-ash and soda-crystals from the vessel, and sold them at public auction. The coke and coal were sold by him upon the vessel before they were discharged. Other portions of the cargo were sold by him, and the voyage to San Francisco was abandoned. The plaintiffs brought this action, claiming an actual total loss under the provisions of the policy, while the defendant denied that the loss had occurred within any of the risks assumed by it. Upon the issues thus made evidence was presented to the jury, from which they were called upon to determine whether the sale by the master was necessitated by reason of the perils of the sea, or whether he was actuated by improper motives in making the sale. Upon these points the jury were fully [385]instructed by the court in reference to the law applicable thereto, and to these instructions no exception-was taken. The jury rendered a verdict for the plaintiff, and anew trial was asked, upon the ground of insufficiency of the evidence to sustain the verdict and for certain errors of law occurring at the trial. From the judgment and the order denying a new trial the defendant has appealed.

In the statement on motion for a new trial the defendant specifies, as the particulars in which the evidence is insufficient to show that the cargo was lost by reason of any of the perils insured against, that it does not appear that there was any necessity for its sale, or that, if the cargo had been reshipped, it would not have arrived at San Francisco as the article originally shipped, or that it was in such a condition as to make it dangerous for the ship to carry it forward to its place of destination; and also, that the evidence was insufficient to show that the master acted in bad faith or fraudulent!}’-, or from any improper motive in making the sale. These specifications are pointed to the instructions of the court, in which the jury were told, in substance, that if, from the- evidence, they found these facts the plaintiffs were entitled to recover.