Searles v. Western Assurance Co.

Citations

• 88 Miss. 260
• 40 So. 866

Syllabus

<p>1 Marine Insurance. Constructive total loss. Abandonmient of vessel.</p> <p>Where a policy of marine insurance, insuring a barge, stipulated that there should be no abandonment as for a “constructive total loss,” unless the costs of the necessary repairs by reason of the disaster, exclusive of the costs of rescuing the barge and taking it to the dock, etc., should be equal to seventy-five per centum of its agreed valuation, and the barge having been damaged by a storm, one of the dangers insured against:</p> <p>(a) The words “constructive total loss” mean such a loss as that the repairs made necessary thereby, exclusive of rescuing the vessel and carrying her to the dock, etc., will at least be equal to seventy-five per centum of her value; and</p> <p>(&) The assured could not, where to repair the damage would cost less than twenty-five per centum of the value of the vessel, abandon her and recover for a “constructive total lossand)</p> <p>(o) The insured could not justify an abandonment of the vessel as for a “constructive total loss” by proof that there were no facilities where she sank for raising her, and by making the expenses of bringing her to a dock an element of damage, showing that as to him she was worthless, so as to entitle him to abandon her and sue for a “constructive total lossand</p> <p>(cl) While the insured is not compelled to make an effort to save the vessel before he can abandon her and sue, still; if he do so, he must prove that the conditions warranted him in so doing.</p> <p>2. Appeal Harmless error. Erroneous opinion of trial court.</p> <p>Where, in an action on a marine policy, the testimony showed that, if assured had any right to recover for a total loss, it could only be for a constructive total loss, and where in his declaration he declared for a constructive total loss, and all the testimony was addressed to that kind of a loss, the error, if any, in the rulings of the trial court that a constructive total loss had to be proven, an