Supreme Court of United States.
*382 Mr. W.M. Evarts, for the plaintiff in error.
Mr. T.J. Durant, contra.
*384 Mr. Justice CLIFFORD delivered the opinion of the court.
Due application was made by the plaintiff to the corporation defendants for a policy of insurance upon the brig Sicilia, of which he was the owner, and on the 11th of July, 1870, he effected with the defendants such a contract, for the period of one year, lost or not lost, the brig then lying in the port of New Orleans, whereby the defendants insured the vessel against the perils of the seas and other risks of her intended voyages, as more fully appears in the policy.
It also appears that the plaintiff, five days later, having freighted the brig with cotton for Helsingfors, in the Gulf of Finland, also effected insurance, with the defendants, upon her freight list for $5700, payable to his own order in gold, as shown by the certificate filed in the case, which represents and takes the place of a policy as fully as if the property was covered by such an instrument, issued direct to the holder of the certificate.
Well appointed and in good order and condition, the brig, on the 20th of the same month, left her port of departure *385 laden with a valuable cargo of cotton and properly officered and manned, but was subsequently compelled, by perils of the seas and unavoidable accidents, to put into the port of Matanzas, Cuba, in distress and disabled, for the security of the property concerned and the preservation of the lives of those on board [?], that being disabled and in want of repairs she remained in that harbor for that purpose, and that while there, and before her repairs were completed, she was driven ashore by a hurricane, and in spite of every exertion which could be made to save her, was wrecked, and, with her cargo, was entirely lost.
Payment of the sums insured being refused, the plaintiff instituted the present suit to recover the amount, claiming also $15,000 in addition thereto, as damages for the delay in fulfilling the contract. Testimony was taken, and the parties went to trial; and the jury, under the instructions of the court, returned a verdict for the plaintiff, and the defendants excepted and sued out the present writ of error.
By the terms of the policy, the brig was valued at $10,000, but the risk taken by the defendants on the vessel was only $7000, as appears by the policy.
Exceptions were taken by the defendants to the refusal of the court to instruct the jury, as requested, and to the instructions given by the court to the jury, and they also assign for error the finding by the jury, of $5000 damages, and the allowance of the same in the judgment of the court, and also, of the allowance in the judgment of the loss under the policy.
These allowance are specified in the verdict, substantially as follows: That the plaintiff shall recover the sum of $7000 under his policy on the vessel, the sum of $5700, gold coin, under his policy on the freight list, with interest, as prayed in his petition, and the further sum of $5000 damages, with interest at the rate of five per cent. from the date of judicial demand.
Judgment was rendered for the plaintiff, as follows: By reason of the verdict it is ordered, adjudged, and decreed that the plaintiff do have and recover the sum of $7000 *386 under his policy on the brig, the sum of $5700, gold coin, under his policy on the freight list, together with five per cent. interest on said two sums from September 29th, 1870, till paid; and the further sum of $5000 damages, with five per cent. interest from the 14th of December, the day of judicial demand, till paid, and costs of suit.
Errors apparent in other parts of the record may be re-examined, as well as those which are shown in the bill or bills of exceptions, and it is too plain for argument that the verdict and judgment are a part of the record. Whenever the error is apparent in the record the rule is that it is open to re-examination, whether it be made to appear by bill of exceptions or in any other manner; and it is everywhere admitted that a writ of error will lie when a party is aggrieved by an error in the foundation, proceedings, judgment, or execution of a suit in a court of record.[*]
Damages were claimed by the plaintiff in this case for alleged loss on account of the failure of the defendants to make payments as stipulated in the policy, and it appears by the verdict that the jury awarded to the plaintiff $5000 on that account, in addition to lawful interest. Apart from that, it also appears that the court, in computing the judgment, allowed the same sum for the same claim.
Interest is allowable as damages in such a case from the time the payments were due, or from demand made, where the defendant refuses to account or make payment, but the plaintiff cannot recover special damages for the detention of money due to him beyond what the law allows as interest.[] Where a principal sum is to be paid at a specific time, the law implies an agreement to make good the loss arising from a default by the payment of lawful interest.[]*387 Tested by these considerations, it is quite clear that the act of the jury in allowing the plaintiff $5000 for the detention of the money due under the policies, in addition to lawful interest, and the act of the Circuit Court in including that amount in the judgment, were erroneous; and inasmuch as the error is apparent both in the verdict and in the judgment, it is equally clear that it is a matter which is re-examinable in this court on a writ of error; and, having come to that conclusion, the only remaining inquiry in this connection is what disposition shall be made of the case.
Errors of the kind, it is insisted by the defendants, necessarily require that a new venire shall be ordered, but the act of Congress to further the administration of justice[*] provides that the appellate court may affirm, modify, or reverse the judgment, decree, or order brought before it for review, or may direct such judgment, decree, or order to be rendered, or such further proceedings to be had by the inferior court as the justice of the case may require; and in view of that provision the court is not inclined to adopt the course suggested by the defendants, as it would lead to unnecessary delay and expense.
Verdicts, it is said, are either general or special, and that if there is error in a case where the verdict is general it can only be corrected by a new trial, and it must be admitted that the rule as suggested finds much countenance in the text-books; nor will it be necessary to depart from that rule in the present case. Strictly speaking, a special verdict is where the jury find the facts of the case and refer the decision of the cause to the court, with a conditional conclusion, that if the court is of the opinion, upon the whole matter as found, that the plaintiff is entitled to recover, then the jury find for the plaintiff; but if otherwise, then they find for the defendant.[]
Examples of special verdicts less formal, however, may be found, and the usual course is to sustain such verdicts if *388 they contain all the facts necessary to a proper judgment between the parties in respect to the matter in controversy. Courts also, in the trial of issues of fact, often propound questions to a jury, and the rule is well settled that such a special finding, even when it is inconsistent with the general verdict, shall control in determining what judgment shall be rendered in the case.[*]
Undoubtedly a special verdict is erroneous if it does not find all the facts essential to the rendering of the judgment; but if it contain all the facts required for that purpose the better opinion is that the court of original jurisdiction may render such judgment as the facts found require, and if they err, and the error is apparent in the record, that such error may be re-examined on writ of error in this court.[]
Confirmation of this view as the correct one is also derived from the act of Congress[] which permits parties to waive a jury and submit the issues of fact, in civil cases, to the court, as the provision in that act is that the finding may be general or special, and that it shall have the same effect as the verdict of a jury. Special findings, under that provision, never have a conditional conclusion, and yet the review extends, by the express words of the act, to the determination of the sufficiency of the facts found to support the judgment.
All the facts are found in this case, and they are all apparent in the record, and inasmuch as the question to be determined is what judgment ought to be rendered on those facts, the court is of the opinion that it is not necessary to order a new venire.
Five bills of exceptions were tendered and allowed, as follows:
*389 (1.) Because the court refused to instruct the jury that if they found that the plaintiff abandoned the voyage when he had no right to make the abandonment under the policy, then the plaintiff cannot recover for the insurance on the freight list; but the bill of exceptions states that the court refused to give the charge because it was in proof that an abandonment had been made and accepted without fraud and in accordance with the advice of the defendants, which is all that need be said on the subject.
(2.) Because the court refused to charge the jury that an abandonment made by the plaintiff through error and accepted through error by the defendants, whether conditionally or unconditionally, is null and void, if not warranted at the time, under the policy of insurance; but the bill of exceptions states that the court refused so to instruct the jury because no evidence had been given to show error by either party, which is certainly a good reason for declining to give the instruction.[*]
(3.) Because the court refused to instruct the jury substantially as in the first request, and which was declined for the same reason.
(4.) Because the court refused to instruct the jury as requested in respect to a policy of reinsurance executed by the defendants on the cargo of the brig; but the record contains no sufficient information that such an instruction was material to the issues between the parties.
(5.) Because the court instructed the jury that, independent of the abandonment, if they believed there was an actual total loss, by storm and disaster of the sea, the plaintiff had a right to recover. Doubt cannot be entertained of the correctness of that instruction as an abstract proposition, and inasmuch as it is not stated in the bill of exceptions that evidence had not been given sufficient to warrant the jury in passing upon the question, it is plain that it furnishes no proper ground to reverse the judgment.
Deviation is also set up as a defence, but the record contains *390 no evidence upon the subject, nor is any such question presented in any one of the bills of exceptions.
JUDGMENT REVERSED AND MODIFIED, by disallowing the sum of $5000 damages found by the jury and included in the judgment, and the interest allowed on the same, and the cause remanded with directions to enter a judgment for the plaintiff for the residue found by the jury, with interest.
[*] Suydam v. Williamson, 20 Howard, 433, 437; Bennett v. Butterworth, 11 Id. 669; Slacum v. Pomeroy, 6 Cranch, 221; Garland v. Davis, 4 How. ard, 131; Cohens v. Virginia, 6 Wheaton, 410.
[] Kendall v. Stokes, 3 Howard, 102; Pope v. Barret, 1 Mason, 117; Searight v. Calbraith, 4 Dallas, 325.
[] Robinson v. Bland, 2 Burrows, 1086; Sedgwick on Damages, 4th ed. 484.
[*] 17 Stat. at Large, 197.
[] Mumford v. Wardell, 6 Wallace, 432; Suydam v. Williamson, 20 Howard, 432; 3 Blackstone's Commentaries, 377.
[*] Rambo v. Wyatt, 32 Alabama, 363, Fraschieris v. Henriques, 6 Abbott Practice Cases (N.S.), 263; Anonymous, 3 Salkeld, 373; Trust Company v. Harris, 2 Bosworth, 87; Adamson v. Rose, 30 Indiana, 383.
[] O'Brien v. Palmer, 49 Illinois, 73; Manning v. Monaghan, 23 New York, 541; Seward v. Jackson, 8 Cowen, 406; Monkhouse v. Hay, 8 Price, 280; Moody v. McDonald, 4 California, 299; Langley v. Warner, 3 Comstock, 329, Moffet v. Sackett, 18 New York, 528.
[] 13 Stat at Large, 501.
[*] United States v. Breitling, 20 Howard, 252; Goodman v. Simonds, 20 Id. 359.
