
    Abraham P. Howell v. The Protection Insurance Company.
    If. a vessel insured receive an injury that occasions her total loss, before the expiration of the policy, but is not lost within its existence, the insurers are liable only for the actual injury within the time of the policy. Insurance upon an estimated value, without proof of fraud, concludes the parties to the policy.
    This cause was adjourned from the county of Hamilton, and came before the court upon a motion of the defendant for a new trial, and a motion of the plaintiff for judgment on the special verdict. The suit was instituted on a policy of insurance on the steamboat “ Seventy-six,” dated December 1,1831, and to expire, by its terms on December 1, 1832, at twelve o’clock. This policy insures three thousand dollars on the boat, valued at ten thousand dollars. The policy stipulated that, if a prior insurance was made elsewhere on the boat, it should be indorsed, and the amount to be paid in case of loss, should be such proportion thereof as the sum herein insured is to the whole sum at risk.
    The defense set up at the trial was, that the loss did not happen within the time of the policy, and that it was occasioned by negligence in navigating the boat. At the suggestion of the counsel for the defendant, the jury found the following special verdict:
    The jury find that the defendants did execute the policy of ^insurance described in the declaration, and do further find that A. P. Howell was the sole owner of the steamboat “Seventy-Six,” when she was insured and when lost.
    That no other person owned any part of the steamboat Seventy-Sin, except A. P. Howell, at any time.
    That the value of the steamboat Seventy-Six, at the time she was insured, was eight thousand dollars.
    That the striking of the boat on the wreck of the Daniel Boone was not owing to negligent or unskillful navigation, but one of the casualties of the river.
    The boat received her injury at half past ten or eleven o’clock A. m., on what was supposed to be the wreck of the Daniel Boone, on December 1, 1832.
    That she- land ed between one and two o’clock p. M., where she finally sunk.
    That she sunk between two and four o’clock on the morning of December 2, 1832.
    That the value of the boat when she struck the Daniel Boone was sixty-five hundred dollars.
    That the steamboat Seventy-Six was not damaged to half the value of the boat at twelve o’clock, but at the same time, that her striking the wreck of the Daniel Boone occasioned her loss finally.
    That the amount of damage was three thousand dollars, at the time she struck the Daniel Boone.
    That they can not tell the amount saved by the evidence we have, but guess three hundred dollars or more might have been saved.
    That the boat might have been run on a bar, or to a landing, and probably have saved the engine and furniture, but that the officers did what they thought best for the safety of the boat.
    That she had a full crew.
    That the holes in her did not make her unworthy.
    That there were holes in her when insured.
    That there was a hole made in her at Louisville, when repairing.
    . That the holes in her did not increase the risk materially.
    And if, upon this finding, the court is of opinion the law is with the plaintiff, we find for the plaintiff and assess him such damages as in law he is entitled to on the facts. But if the court is of opinion, that- on these facts the law is with the defendants, then the jury find for the defendants.
    ' *The plaintiff’s counsel, moved for judgment on the verdict for the whole sum insured.
    The defendants’ counsel moved for a new trial, on the ground that the finding of the jury was against the weight of evidence given in the cause. And, also, on the ground that the court erred in charging the jury, that, if the injury that occasioned the loss occurred within the time of the policy, the insurers were liable for an average loss, although the total loss did not happen until after the policy had expired.
    Eox, for the defendant,
    argued at large the motion for a new trial, on the weight of evidence.
    Wright and Walker, on the same side,
    insisted, that as the loss was found not to have happened, equal to one-half the value, until after the expiration of the policy, the defendants were not liable at all. They cited 1 Term, 187, 252; 3 Kent’s Com. 308, 2 ed.; 1 Phil. Ins. 283; Peters v. Phoenix Ins. Co., 3 Serg. & Rawle, 25.
    N. Wright and Hodges, on the same side:
    All the counsel for the defendant maintained that upon the special verdict, the plaintiff could only recover an average of three-tenths of the actual loss. This actual loss, within the time of 1 policy, was less than one-half the estimated value, being as three to ten, and this average would give only nine hundred dollars.
    H. Starr, Hammond, and C. J. Wright, for plaintiff.
   Judge Wood

delivered the opinion of the court:

This cause was tried upon the same evidence, and the same charges to the jury, on which the case of Howell v. The Cincinnati Insurance Company whs tried and decided. We have considered the two cases together, and the opinion, in the latter case, is decisive of the motion for a new trial in this, on the ground that the verdict is against the weight of evidence.

The jury find that the injury that occasioned the loss occurred within the time of the policy, and that its extent, at the time of its occurrence, was three thousand dollars. The law seems to be well settled, that if a ship receive her death wound *before, and is not lost until after the policy expires, the insurer is not liable. Park, 433; 1 Term, 260. Justice Lawrence says it is of little importance which way the rule is, but it should be certain and he holds it well settled as stated.

There was then but a partial loss within the time of the policy That partial loss the jury find was three thousand dollars, exactly the sum insured, and less than half the sum at risk, which is ten thousand dollars. The jury find different values of the boat; but that finding does not affect the case. The parties agreed upon a value, and thus made an estimated policy, which is not to be opened where there is no proof of fraud. This estimate concludes the parties in fixing the average loss. This average is three-tenths of three thousand dollars, amounting to nine hundred dollars. The deductions agreed upon reduce this sum to six hundred and eighty-eight dollars and fifty cents, for which judgment is to be entered.  