Paterson v Harris
| Jurisdiction | England & Wales |
| Judgment Date | 17 June 1862 |
| Date | 17 June 1862 |
| Court | Court of the Queen's Bench |
English Reports Citation: 121 E.R. 1274
IN THE COURT OF QUEEN'S BENCH, AND THE COURT OF EXCHEQUER CHAMBER
Affirmed in Exchequer Chamber, 4 B. & S. 667.
[814] paterson against harris. Tuesday, June 17th, 1862.-Distributive issue. Costs.-In an action on a policy of insurance in the ordinary form, with the common memorandum, on a share in The Atlantic Telegraph Company, alleging a, total loss of the cable by perils of the seas; the defendant pleaded that the subject matter of the insurance was not, nor was any part thereof, during the continuance of the risk covered by the policy, lost by the perils insured against, or any of them. Issue having been joined on this plea, the plaintiff recovered in respect of a small portion of the cable otily, the rest not having been lost by the perils insured against, the damages on the portion recovered exceeding 31. per cent, on the value of the policy. Held that the plea might be taken distributively, and that the verdict should accordingly be entered for the defendant aa to all the claim except so far as related to the loss of the portion of the cable on which the plaintiff succeeded. [Affirmed in Exchequer Chamber, 4 B. & S. 667.] The first count of the declaration was on a policy of insurance on a share in The Atlantic Telegraph Company, alleging a total loss of the cable by perils of the seas, whereby the share became of no value. The policy was in the ordinary form, with the common memorandum. The second count was on a policy similar to the first, with an additional memo-randam that it was understood and agreed that the insurance should cover and include the successful working of the cable when laid down. There was also the common count for money had and received. Pleas. 1. That the defendant did not promise or become an insurer as alleged. 2. To the first count. That the subject matter of the insurance was not, nor was any part thereof, during the continuance of the risk covered by the policy, lost by the perils insured against, or any of them. 3. To the second count. That the subject matter of the insurance was not, nor 2B.fcS.81d. PATRRSON V. HARRIS 1275 was any part thereof, during the continuance of the risk covered by the policy and [815] memorandum, lost by the perils insured against, or any of them. 4. To the whole declaration, Payment before action brought. 5^ To the common count, Never indebted. Issue on all the pleaa. At the trial of the cause, a verdict was entered for the plaintiff, subject to a question reserved; and the Court having decided that the plaintiff was only entitled to recover with respect to a small portion, namely, 373 miles, of the cable, as the loss of the rest was not caused by perils of the seas, but from the chemical action of the sea on it after immersion, arising from inherent defects in the cable, the following rule was drawn up. "Upon reading &c., and upon hearing &c., it is ordered that the arbitrator appointed by the parties do assess the damages as to the 373 miles of cable upon the principle laid down by the Court; and if he find that the damage bo assessed amounts to or exceeds 31. per cent, the verdict is to be entered for the plaintiff, as to such portion of the amount so found as the defendant's subscription bears to the whole sum insured by the policy, and costs 40s.; but if such damages amount to less than 31. per cent., then the verdict is to be entered for the defendant "(a). The arbitrator having assessed the damages at a sum exceeding 31. per cent, on tha value of the policy, the following order was made by Blackburn J. "Upon hearing counsel on both sides, I do order that, having regard to the finding of the jury and the [816] judgment of the Court, the verdict be entered for the defendant upon the issues arising on the first and last counts, and for the plaintiff on the first issue so far as it relates to the second count, and on the third issue generally, with damages according to the finding of the arbitrator; with liberty to apply to the Court." A rule was obtained by the defendant to vary this order, by directing that the verdict upon the issue arising upon the third plea be entered for the defendant as to all the claim, except so far as related to the loss of 373 miles of the cable. This rule was argued on the 14th and 17th June, and judgment was given on the latter day. W. Murray shewed cause. -The question is whether the third issue is divisible, so aa to entitle the defendant to have the verdict entered for him for the portion on which he has. succeeded. The issue is, however, entire; and to hold it otherwise would lead to a multiplicity of issues. The second count on which it arises is a claim for damages in respect of a total loss of the cable the share in which was insured, and the defendant can not claim to have the issue divided on the ground that the loss turns out to have been only partial. The plaintiff could not have declared for a partial loss of this portion of the cable until the voyage was at an end, seeing that after a partial loss there may be a total loss, in which of course the former would be included; Stewart v. Steele (5 Scott, N. R. 927, 941, 948-9), per Maule J.; Blankett v. The Royal Exchange Assurance Company (2 Cr. & J. 244, 248), per Lord Lyndhurst. [817] Anderson v. Chapman (5 M. & W. 483) is an authority for the plaintiff. That was an action against the defendant as a carrier by sea, charging damage to goods by improper stowage, and otherwise negligently taking care of and conveying them. The plaintiff failed to prove any negligence in respect of stowage, but proved a damage to one cask by negligence in the loading, and it was held that the defendant was not entitled to any part of the costs on the above issue, under Reg. Gen. H. 2 W. 4, r. 74, which directs that "the costs of all issues found for tha defendant shall be deducted from the plaintiffs costs;" and Parke B. referred to Cox v. Thomason (2 G. & J. 498 ; 1 Dowl. P. C. 572 ; 2 Tyrw. 411). [Crorapton J. Traherne v. Gardner (8 E. & B. 161) is subsequent to Anderson v. Chapman, and seems at variance with it.] That waa founded on Wdby v. Brown (1 Exch. 770), and was an action on common counts. In n action of indebitatus assumpsit, with several breaches alleged, the defendant may plead to each breach, and an issue may be raised on each. Besides, in the judgment in Traherne v. Gardner, no allusion is made to Anderson v. Chapman. [Crompton J. It was, however, brought before the Court in the argument.] Here she declaration states one specific cause of action, as much as if the action were brought for an entire chattel. Suppose two heads of special damage in an action of slander, (a) See the Report, vol. 1, p. 336. 1276 paterson r. harris as.&s.gig. and the plaintiff failed as to one, would the issue be divisible? [Crompton J. I do not see wty not. Blackburn J. referred to Biddulph v. Ohamberlayne (17 Q. B. 351).] If this defendant [818] can recover the costs he seeks, then in every action for damages the defendant will be entitled to the costs of all witnesses called by him for the purpose of cutting them down. [He cited Gray on Costs, p. 40.] Honyman, in support of the rule.-The declaration is for a total loss, and under it the plaintiff may recover pro tanto if he proves a partial loss. The test whether an issue is divisible is to see whether the portions supposed to be separate could be made the subject of different breaches. That could not have been so here; at all event*, if it could, the plaintiff could have traversed each breach separately. Anderson v. Chapman (5 M. & W. 483) has been virtually overruled by Traherne v. Gardner (8 1. & fl. 161), and is inconsistent with Reynolds v. Harris (3 C. B. N. S. 267) and freshney t. Wtlls (26 L. J. Exch. 228). [He cited Goram v. Sweeting (2 Saund. 205) and Gray on Costs, pp. 61, 64.] [Wightman J. In Day's Common Law Procedure Acts, p. 68, it is said that not possessed is divisible in trover, but not in an action for mesne profits, for which he cites Wilkinson v. Kirby (15 C. B. 430).] Cockburn C.J. This rule must be made absolute. I quite agree that where the question between the parties involves simply the amount of damages, and the defendant calls witnesses to cut them down, the issues raised in reference to the different items that may come under consideration are not taken distributively; but where we can see that the issues raised are distinct, the ends of justice require, and our rules do not prevent, their being so taken. [819] Here is an action on a policy of insurance, in which the underwriter undertakes to indemnify the assured for all loss, total or partial, from the perils of the seas ; and, according to the established rule, although the declaration is general, it is open to the assured to proceed in respect of either total or partial loss. The declaration being general, the plea has assumed the same shape, and denies the loss in general terms, making no distinction between total and partial loss. It seems to me that, under these circumstances, the subject matter of the liability is distinct. Even where a partial loss arises before the expiration of the voyage, there is nothitig to prevent the assured from maintaining his action for it, although, no doubt, if afterwards there were a total loss, the partial loss would be included in it, and could not be recovered for separately. But here are two distinct grounds of claim, on one contract of indemnity; and, that being so, the plaintiff clearly may recover in respect of the partial loss of part of the cable arising out of one set of circumstances, and for the rest arising out of a different one. It is not alleged that there was anything in common between the two losses, except that both occurred on the ocean, one from a atortn, and the other from the chemical action of the sea on the cable after immersion. The question between the parties was whether the loss of that part on which the jury...
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