
    GILBERT G. YOUNG, Plaintiff and Respondent, v. THE PACIFIC MUTUAL INSURANCE COMPANY, Defendant and Appellant.
    In an action upon a marine policy to recover as for an actual total loss, the insured must establish the physical extinction of the property insured or the extinction of its value, arising from the perils insured against. Total loss of value to the owner is equivalent to a total physical loss (Wallenstein®. Columbia Ins. Co., 44 2V". 7. 204).
    The evidence in this case falls wholly short of establishing a total loss, for the reason that the insured neglected or failed to prove that the portion of the property insured, that reached the port of destination was of no mercantile value at the time of its arrival.
    The party insured having proved the sound and valuable condition of the property at time of shipment, and its subsequent bad condition, raises the presumption that it was injured by the perils it had passed through, and it was incumbent with the insurers to rebut that presumption, by showing that the"property was not injured by any of the causes or perils insured against.
    In this case the insured failed to do this, but the plaintiff also failed to prove that the property injured was" of no mercantile value, after its arrival, and having sued for a total loss, should not recover because of this failure of proof on his part.
    Before Monell, Freedman and Curtis, JJ.
    
      Decided March 30, 1872.
    Appeal from a judgment and order.
    The action was upon a policy of marine insurance to recover, as for a total loss, the value of seventy casks of ale, shipped on board the brig “Ballot Box” at the city of New.York, to be carried by sea to the port of Galveston, in the State of Texas. The subject insured was among the memorandum articles and insured “ free of partial loss.”
    
      The vessel proceeded on. her voyage, and on endeavoring to enter the harbor of Galveston, stranded, and subsequently became a total loss. Some of the casks containing the ale, about twenty-three, were got out of the vessel, and ten casks were tendered to the consignees, but were rejected, as the contents of the casks were alleged to be worthless.
    The answer of the defendants claimed that the loss was partial. That the casks of ale tendered were the same as those shipped and insured, and that the tender was made in specie, and the ale was in the same casks as when shipped, and were strong, sound, and in good order.
    It was undisputed that the vessel was lost by the peril of the' sea, on the night of ¡¡November 23, 1868. Some time in December following, some of the casks were got out of the hold and offered to the consignees. Previous to rescuing the ale, and within three days after the wreck, the vessel and cargo were sold, and the net proceeds remitted to the Board of Underwriters at the city of Hew York. At the sale, one Heidenheimer became the purchaser of the vessel and cargo as they were. Subsequently he succeeded in rescuing a part of the cargo, including the twenty-three casks of ale. The vessel was totally lost. A little more than a month after the stranding, one Sorley, acting under instructions from the defendants, purchased of Heidenheimer ten of the casks and tendered them to the consignees.
    The action was tried throughout, down to the close of all the evidence, upon the theory that the loss was partial, and that, to establish a right to recover, it was necessary to show an abandonment of, and an acceptance by the defendants, of the subject insured.
    A large amount of testimony had been taken on commission, and a further large amount of oral evidence was given at the trial, all of it designed to show that the defendants had accepted the abandonment. To prove this, it was endeavored to show, that one Hunt, residing at Galveston, was acting as the agent of the defendants, having been appointed by the Board of Underwriters’ resident agent at Galveston, to act for the several insurance companies who were parties to the appointment; and it was attempted to connect the defendants with such an appointment, to the extent of binding them by the' acts of Hunt. Under the order of Hunt, who acted under his appointment from the Board of Underwriters, the vessel and cargo was sold and the proceeds remitted.
    An objection appears to have been taken by the defendants at one time to the evidencé, on the ground that the issue, namely, partial loss and abandonment, was an immaterial issue, unless some portion of the subject insured, at least, existed in specie'. But no decision appears to have been made by the court, further than excluding some of the particular evidence objected to, on other grounds. Numerous objections were made by the defendants to portions of the evidence on other grounds, and numerous exceptions taken to the rulings of the court.
    At the close of the plaintiff’s evidence in chief, the defendants moved to dismiss the complaint on the following grounds:
    The contract is free from partial loss. The plaintiff has failed to show total loss, but claims to have abandoned the property to E. P. Hunt, and that he accepted the abandonment.
    There is no evidence to show that Hunt was the agent of the defendant, or had any authority to accept an abandonment; but, on the contrary, the evidence of the plaintiff shows that Hunt was agent of a voluntary association of gentlemen calling themselves the Board of Underwriters.
    At the time of Hunt’s appointment, it was proved by the plaintiff’s witnesses that the defendant was not in existence, not having been incorporated.
    There is no evidence that the defendant ever appointed Hunt their agent for any purpose, or that he ever acted for them.
    The authority delegated to Hunt forbade any acceptance of an abandonment. The Board of Underwriters had no authority either to insure, issue policies of insurance, or accept abandonments. Therefore, they could not delegate such authority to any one else.
    The ale was warranted, by the terms of the policy, “free from damage or injury from dampness, change of flavor, or being spotted, discolored, musty or mouldy, except caused by actual contact of sea water with the articles damaged, occasioned by sea perils.”
    The plaintiff has failed to show any contact of the ale with sea water.
    Ho abandonment of this property was ever made to the defendant, nor accepted by it.
    The plaintiff has failed to .prove facts sufficient to constitute a cause of action.
    The motion for nonsuit was denied, and exception duly taken by- defendant’s counsel.
    The plaintiff gave some evidence tending to show that the ale, when shipped, was good ale, heavy stock ale, suitably put up in proper casks, and was altogether in good- condition ; and then gavs further evidence that when taken from the wreck it was spoiled.
    Under the warranty by the insured, contained in the policy, that the subject should be free from damage “from dampness, change of flavor, or being spotted, discolored, musty or mouldy, except caused by actual contact of sea water,” the defendants gave evidence tending to show that the casks, when taken from the wreck, were sound, tight and in good condition.
    The' plaintiff, relying upon the sufficiency of his proof of abandonment as for a total loss, and its acceptanee by the defendants, called no witness to prove the condition of the ale when rescued from the wreck. He read a deposition of a Mr. Lee, which had been taken conditionally on behalf of the defendants, who testified, that he saw some of the ale at Mr. Heidenheimer’s, but long after—more than a month after it had been taken from the vessel. He described it as being at that time a very inferior article, sour, like the settlings of the vats the brewers keep their ale in. He saw only three casks. Thought it was not of much value. Didn’t see anything it could be used for; might be used by a vinegar maker. Thought it could not be sold in the condition it was in. It was not merchantable at all. This was substantially all the evidence of the condition of the ale on the .part of the plaintiff. Sorley, a witness fox the defendant, and who made the purchase of the ten casks tendered to the consignees, examined the ale a month after it was taken from the vessel. He says it tasted sour; was milky,' looking thick, opaque, not clear, as ale is generally. Had a somewhat disagreeable taste or odor, besides being sour to the taste—not the sourness of vinegar, nor of old ale. It was very sour, and emitted an unpleasant odor.
    Lozier, another of defendant’s witnesses, examined the ale on January 8 and 10, 1869. He says its condition was very bad. If it was ale at all it was of very poor quality. It was very sour and disagreeable, and quite thick—not as sour as vinegar, but more sour than ordinary acid ale. It was not what is called tart ale, neither was it vinegar, but a mixture—a sour thick mixture—not fit for drinking purposes.
    Le Due, another of defendant’s witnesses, examined some of the ale about the same time as the other witnesses, and said the ale was bad, unmerchantable, sour, and of no value as ale.
    ■At the close of all the evidence the defendants renewed their motion to dismiss the complaint upon the following grounds:
    I. It being in evidence that the casks in which the ale in question arrived in Galveston were sound, tight, and in good condition, but that the ale had turned sour, the plaintiff has failed to show that the sea water ever came in contact with the ale in question, and produced the souring and loss ; or that the immersion of the ale in question did produce the souring and consequent loss of the ale ; or that such immersion did set in motion the internal tendencies which produced the souring ; and he has failed to show that the loss of the ale by souring was caused by any of the perils insured against.
    II. The plaintiff has failed to show that the perils insured against were the proximate cause of the loss.
    III. If the loss is not within the policy, the alleged abandonment to Hunt is worthless, and the plaintiff has no cause of action.
    IV. The plaintiff has failed to show any extinction of the ale, either physical or as to value, arising from the perils insured against.
    V. The plaintiff has failed to show that in consequence of the perils insured against, the articles insured could not have been brought from the place of the wreck to Galveston, so as to arrive in specie.
    
    VI. The plaintiff has failed to show any power in the master to make the alleged abandonment.
    VII. The plaintiff has failed to show that the person to whom he alleges the abandonment was made had power to accept the alleged abandonment.
    VIII. The plaintiff has failed to show any valid abandonment of the articles insured.
    . IX. The plaintiff has failed to show facts sufficient to constitute a cause of action.
    The motion was denied, and defendant’s counsel excepted.
    
      The defendants’ counsel requested the court to charge the jury the same propositions, substantially, as contained in their motions to dismiss the complaint, and other propositions relating to the question of abandonment, and also the following.
    The plaintiff has failed to show that the ale was damaged by actual contact with sea water; and the plaintiff has failed to show that it cost more to rescue and forward the ale than it brought at its destination.
    The rule that a loss of memorandum articles is total if it costs as much to rescue and forward them as they are worth at the port of destination, is not applicable to this case, because it is not shown that the deterioration, if any, is the result of a peril insured against, but that the true rule in this case would be .that to make the loss total, the cost of rescuing and forwarding it should equal the value of sound ale of the same quality at the port of destination.
    That losses originating in the internal qualities of articles insured are not within the policy, and that the souring of .the ale is not in itself a sea peril, and also that the souring of the ale is not included in the term “other perils,” specified in the policy.
    That the burden of proof is on the plaintiff, to show that the souring of the ale was caused by stranding, or other sea perils, or that such stranding or other sea perils set in motion the tendencies which produced that result, and that, in order to sustain the allegation of the complaint, that the loss was occasioned by perils of the sea, it must be shown that those perils were the proximate cause of the loss, which the plaintiff has failed to show.
    All of which requests were refused except so far as they were included in the charge.
    The court thereupon remarked, and held that there was no question of abandonment involved in the case, but that all the evidence tending to prove an abandonment of the ale to the underwriters must be laid out of view as irrelevant, and then charged the jury as follows.
    The following was the charge :—
    “ G-entlemen of the Jury: To entitle the plaintiff to. recover, you must be satisfied from the evidence that the ale was totally lost within the rules which I now state.
    “ The casks which were sunk with the vessel, and not recovered, must be considered as wholly lost.
    “Those goods which . were recovered from the wreck must be held to have been wholly lost, if they were in such a condition, caused by the perils insured against, as to be of no mercantile value.
    “ If you find that this ale jn question was totally lost within these rules, the plaintiff will be entitled to your verdict, provided you are satisfied from the evidence that the loss was the direct and immediate consequence of the wreck of the vessel, and was not the result of the defécts or inherent qualities of the ale itself.
    “But if you arrive at the conclusion, either that the goods were not totally lost, or that such loss was not directly occasioned by the wreck of the vessel, the defendant will be entitled to a verdict in its favor.”
    The defendants excepted generally to the refusal to charge as they had requested.
    The jury gave the plaintiff a verdict for the amount claimed.
    There was no exception to the charge.
    A motion was made for a new trial upon the judge’s minutes, which was denied.
    The defendants appealed from the judgment and order.
    
      Mr. John McDonald, and Mr. Townsend Scudder, for appellants.
    
      
      Mr. Erastus Cook, for respondent.
   By the Court.—Monell, J.

— The only questions, which in my judgment, it was proper to investigate on the trial of this action were:—First. Was the damage to the ale from any of the causes mentioned in the warranty; or was it caused by actual contact of sea water % Second. Was there a total loss of the subject insured ?

These questions were submitted to the jury, and they have answered them .favorably to the plaintiff.

Upon the first question the burthen, I think, rested upon the defendants of showing that the damage was from some inherent defects or qualities of the ale itself, and not from actual contact of sea water.'

The plaintiff having shown the sound condition of the ale at the time of shipment, it was incumbent on the defendants to rebut the presumption arising upon such proof, by showing that the ale was not injured by any of the causes insured against.

The defendants attempted this rebuttal, and the examination of. one or two experts, and of the several witnesses who- testified to the condition of the ale, a month or more after it was rescued from the wreck, was designed to furnish evidence upon which the jury could say, that the ale became sour, bad and unmerchantable, after it was taken from the hold of the vessel and brought on shore.

It was, therefore, a proper question for the jury. There was evidence on each side, and it would have been error to have taken the question from the jury. The first motion, therefore, to dismiss the complaint on the ground of the plaintiff’ s failure to show any contact of the ale with sea water was properly overruled; and as the other grounds of that motion related wholly to the question of abandonment, which was ultimately taken from the jury, they need not be examined.

Upon the second question, namely, was there a total loss of the subject insured, the defendants having shown, as I think they did show, that the casks when they came from the wreck and when offered to the consignees, were in sound condition, were full, without leakage, well hooped and in fine condition, the burthen then rested on the plaintiff to establish that the contents of the casks were of no mercantile value.

The only issues to which the evidence was intended to apply, were, the supposed actual abandonment, and' the warranty. The plaintiff, therefore, did not deem it necessary to do more than to furnish evidence in support of those issues. He, accordingly, called no witness to testify as to the condition of the ale, but read merely the evidence of one of the defendants’ witnesses, who had examined the ale, more than a month after it was taken from the vessel. Subsequently, however, depositions of other of defendants’ witnesses were read for the defense, and oral testimony given, in which the condition of the ale, one or Mo months after it came on shore, was described. But it is perfectly evident that all the evidence of the condition of the ale so furnished by the defendants, and which was the only evidence in the case on that subject, was offered to show, that the defects were inherent in the ale itself, and were not produced by sea water; and that neither party intended or supposed that such evidence would or could be used to establish a constructive total loss.

That the plaintiff had no such thought, is evident from the fact that he directed all his evidence to proving the abandonment, and procured none on any other issue in the case, doubtless being satisfied, that upon the warranty the burthen was upon the defendants. And it cannot be supposed that the defendants went into an investigation of the condition of the ale for any other purpose than to show that the damage was within the insured’s warranty.

At the close of the evidence, the learned justice decided that there was no question of abandonment involved in the case, and directed that all evidence tending to prove an abandonment should be laid out of view as irrelevant, and then left it to the jury to determine whether the ale was in a condition caused by the perils insured against as to be of no mercantile value.

One of the grounds of the motion to dismiss the complaint, and which was among the requests to charge, was that the plaintiff had failed to show any extinction of the ale, either physical or as to value, arising from the perils insured against.

It seems to me that this is a substantial ground of objection.

As we have seen, the burthen was upon the plaintiff to establish a total loss by showing an extinction of the subject insured ; or that, by reason of damage by perils of the sea, it was of no mercantile value. The rule, making total loss of value to the owner equivalent to a total physical loss, is now firmly established by the recent case of Wallenstein «. Columbia Ins. Co. (44 A. T. 204\ where my views in the same case (3 Bobt. 528; are sustained, although my judgment was reversed.

It was doubtless competent for the jury to look at any evidence which had been given on the trial, without regard to the party who had offered it, and also without regard to any specific purpose'for which it may have been offered ; and if it was found sufficient to support the verdict no error would be committed.

But I am satisfied, that taking all the evidence, and giving to it its broadest and most comprehensive effect, it falls wholly short of establishing a total loss, by failing to show that when the ale reached the port of destination it was of no mercantile value.

According to the evidence, the vessel was wrecked on November 23, and was, with her cargo, sold on the 28th of the same month to Heidenheimer, who succeeded in raising twenty-three casks from the hold, which he placed in a shed, on his premises, where they remained for about four weeks and until sold to Sorley.

There was no proof that any examination of the contents of the casks was made, until about and after the sale to Sorley, which was a month after the casks were landed ; and'those examinations were made with a view of discovering whether the ale had been injured by sea water, and for no other purpose.

Hunt and the captain, one or both, and it is not material which, had possibly, by the sale of the vessel and cargo, put it out of the power of the plaintiff to make an earlier examination into the condition of the contents of the casks, or, indeed, any examination whatever, at any time after the casks came on shore. But the defendants are not to be made responsible for the plaintiff’s being thus deprived of the power of inspecting the ale; nor can it excuse his furnishing such proof as was required to show a total loss of value at the time the ale was landed, unless the evidence was sufficient to make Hunt the agent of the defendant, either by original appointment, or subsequent ratification of his act.

We are, therefore, of the opinion that the evidence to establish a constructive total- loss was insufficient, and the motion to dismiss the complaint ought to have been granted.

Judgment and order reversed, and new trial granted,. with costs to the appellants to abide the event.  