Hicks, Lytle & Co. v. McGehee

39 Ark. 264

• Court: Supreme Court of Arkansas
• Decided: November 15, 1882
• Status: Published

Opinion

Smith, J.

McGehee, Snowden & Violett, cotton factors, of New Orleans, sued Hicks, Lytle & Co., who were merchants trading at Searóy, in this State, for a small balance due upon mutual accounts. The defense was that Hicks, Lytle & Co. had shipped to the plaintiffs, on the steamer Belle of Texas, twelve bales of cotton; that said shipment was covered by an open policy of insurance held by the plaintiffs, by which the cotton was insured at the rate of $55 per bale; that while the cotton was in transit the guards of the steamer were broken off, and the cotton precipitated into the river, from which it was rescued in a damaged condition; and it was claimed that the plaintiffs should have abandoned the cotton to the insurance company, and have collected the full insurance.

The evidence shows that the cotton was only slightly damaged by the accident; that it arrived in New Orleans in one month after the date of shipment, where it was identified by its marks, was sent to a pickery, and was there overhauled and rendered merchantable, by removing the bagging in which it was originally wrapped, and some of the outside layers of cotton, which were damp, the insurance company paying for replacing the bagging, and for the diffeience in the weight of the cotton; that it •was then put upon the market and brought a fair price, which was placed to the credit of the defendants, together with the amount collected as damages from the insurance company. The cause was submitted to a jury, under appropriate instructions, and their verdict was for the plaintiffs.

We have no hesitation in saying that the judgment upon the whole record is right and ought to stand. A policy of insurance is only a contract of indemnity against actual loss. The defendants, it appears, were made whole. Their consignees did all that it was in their power to do, if .the cotton had been their own. They had no right to abandon it, as in the case of a total loss, or in case of such serious damage as to render the cotton unmarketable.

There was proof tending to show that the usual transit from Searcy to New Orleans occupies from five to seven days, and that the market had "depreciated between the time of consignment and arrival of the cotton. The insurance policy is not copied in the transcript, so that we are unable to say what its precise terms were. In the absence of proof, we will not infer that it contained any stipulations of guaranty against loss by delay in transportation.

Affirmed.