The defendants were underwriters on a cargo of pork shipped on board the steamer Defiance, and lost by a peril insured against, by reason of the boat being wrecked, and sunk in the Mississippi. Immediately after the wreck, the master, by a contract in writing, signed by him as “ agent for owners and underwriters,” and professing to be “for the benefit of whom it may concern,” agreed with the plaintiff, who was the owner of a bell-boat near by, to save what he could from the wreck, after and for the rate of a certain per cent, as salvage, the master reserving to himself the right to save, first, what ho could — under which be did save a portion of the cargo, and notified the office accordingly.
Under this, arrangement the plaintiff saved a considerable amount of property, for which, and for his labor, expenses and services, he claims compensation of the company, the defendants. An abandonment, with, notice, was duly made by King & ‘Fisher, the insured, but not accepted by the defendants. They afterwards, however, settled the claim of King & Fisher, by an arrangement which gave them the avails of the property saved, besides paying them the amount claimed by them for loss and damages.
The policy contains the usual clauses, giving the right to the insured and their agents to labor, expend, travel, &c., in and about the recovery of the property insured, at the expense of the office, &c.
It is deemed unnecessary to recapitulate the testimony, inasmuch as the instructions which were given, as well as the one refused, wrere hypothetical, and would consequently leave the finding of the facts to the jury. Those given at the instance of the defendants were :
1. If the property saved from the wreck of the Defiance was the property of King & Fisher, at the time it was saved, the plaintiff is not entitled to recover in this action.
*3763. Unless the steamboat Defiance was a good boat for the navigation of the river below St. Louis, within the meaning of the policy, the plaintiffs are not entitled to recover.
It may be conceded that these instructions condense the law of the case, and that if given to a jury of lawyers might have been sufficient. The first one, however, is deemed to have fallen short of the duty of the court, in not directing the jury, as prayed for in the instruction which was asked by the plaintiff, upon what grounds they should proceed, for the purposes of this suit, in finding the question of property, whether (literally, as originally) in King & Fisher,’or (constructively, by operation of law) in the underwriters.
It need scarcely be repeated here, the fact being seemingly conceded that, in cases of this nature, the master of the vessel becomes the agent of the underwriters, and that his agreement with the plaintiff, as a wrecker of the boat, was subsequently valid, and binding upon the office (if it was liable at all), unless it was clearly unreasonable or legally disaffirmed or avoided. Applied, therefore, to the technical total loss which the record established in reference to the cargo in question, the last instruction unquestionably embodies the true law, and ought not, consequently, to have been refused by the court, particularly as it was in testimony that the defendants were fully apprised of the plaintiff’s claim, when they made the subsequent arrangement and settlement spoken of with King & Fisher, the insured, that instruction was in these words: “If the defendants were underwriters on the 700 barrels of pork, shipped by King & Fisher on the Defiance, and if King & Fisher upon being notified of the loss abandoned to the defendant and immediately gave notice of such abandonment, then, from the time of such abandonment, the defendants were, in contemplation of law, the owners of said property, whether they accepted the abandonment or not, provided the loss happened from one of the perils insured”against.”(a)
Inasmuch, therefore, as it is apparent from a view of the whole case, that it ought to have been tried under this instruction, in connection with the first ones, it is reversed and remanded accordingly.
(a) See Willard v. Millers & Manuf. Ins. Co., 24 Mo. R. 561.