
    Watson et al. v. Insurance Company of North America. 
    
    
      Marine mswrcmee. — JPcvrUal loss.
    
    Where there has been a capture and condemnation, but no abandonment to the underwriters, the jury may estimate the spes recuperandi, deduct it from the whole amount insured, and find the remainder as a partial loss.
    In an action on a policy of insurance, in which the declaration was for a total loss, and it appeared, that the assured had demanded payment of a total loss, which was refused: but there was no actual abandonment, nor offer to abandon, and the proof was of a loss in its nature total; it was held, that the jury might find damages as for a partial loss.
    This was an action on a policy of insurance, in which the declaration ' was for a total loss. On the trial, it appeared, that the assured had demanded payment of a total loss, which the defendants refused to pay ; but there was no evidence of an actual abandonment, nor offer to abandon, to the underwriters, before the suit was instituted ; and the proof was of a loss in its nature total. The jury gave a verdict in favor of the plaintiff, finding damages, as for a partial loss; subject to the opinion of the court, upon a motion for a new trial, to consider two points reserved : 1st. Whether a previous abandonment, or offer to abandon, was indispensably necessary, to enable the plaintiff to recover in this suit ? And 2d. Whether, on a declaration for a total loss, and proof of a loss in its nature total, the jury can give damages for less than a total loss ?
    After argument, by M. Levy and Lewis, for the plaintiffs; and by Moylan, E. Tilghman and Ingersoll, for the defendants,
    The Court (consisting of Shippen, Chief Justice, and Yeates and Smith, Justices) were of opinion, that the jury might find damages for a partial loss ; although the declaration claimed for a total loss; and although there was no proof of an actual abandonment, or an offer to abandon, to the underwriters.
    
      
      c) s. c. 1 Binn. 47, which is better report of the case.
    
   *But Brackenridge, Justice, said, that he thought there was sufficient evidence at the trial, to induce the jury to find an abandonment;

and on that ground alone, he concurred, in refusing a new trial. For the general ground, on which the opinion of the rest of the court was founded, did not appear to him so conclusive, and so satisfactory, as it did to them.

Motion for anew trial refused : and judgment rendered on the verdict for the plaintiffs. 
      
       In Brown v. Phoenix Ins. Co., 4 Binn. 464, Chief Justice Tilghman said, that he did not consider the law as settled by this decision, The court was not unanimous. “ It was not acquiesced in by the bar; and would have been carried to the court of errors and appeals, had the nature of the case admitted it. But being a determination on a case stated, it was supposed, that it could not be carried up by writ of error. There certainly are some weighty objections to the principle adopted by the court >n that case. It takes away the necessity of abandonment, in any case whatever, without affording sufficient protection to the rights of the underwriter; because, instead of paying for the whole loss, and receiving an assignment of the whole chance of recovery, he is compelled to relinquish that chance, and may have to pay the whole loss, deducting a trifling sum for the value of the chance. Besides, there seem- an impropriety in proving a total loss, and recovering for less than a total loss. There will be great difficulty, too, in reducing the rule to practice, for, by what standard are the jury to estimate the hope of recovery ? It depends not on any known principles of law or justice, but frequently on the character, the temper, the caprice of the prince, or on secret political motives.” He wished to be understood, however, as not having formed a decided opinion on the question. But Mr. Justice Yeates said, in the same case (p. 470), that he saw no reason for retracting the opinion which he formed in Jones v. The Insurance Co.
     