MOSES v. DELAWARE INS. CO., 17 F. Cas. 891

WASHINGTON, Circuit Justice, charged the jury. It is admitted, that the plaintiff did not communicate to the office, the information he had received of the storm at Charleston, or that there was a letter in town respecting it; but, it. is contended, by the plaintiff, that this was unnecessary, since it was sufficiently known to the defendants, to render the communication unnecessary. The rule is, that the insured must disclose every fact, material to .the risk, within his own knowledge, which, the insurer does not know, or is not bound to know.

They were not bound to know of the particular storm mentioned in this letter;. and, there is no evidence which brings home to them, in any respect, a knowledge of -It The only question, then, is; whether the communication of the contents of that letter, was material to the risk, taken in connexion with the knowledge, which the defendants had obtained through other channels.

The defendants knew generally,' that there had been heavy gales on the coast, in the latitude of South Carolina; that damage had been the consequence; that a vessel, which had left Savannah on the fourth, was lost; that another had experienced its violence, was damaged, but had arrived. But, the plaintiff knew of a particular storm, more violent than had ever been experienced, which had done great injury to the shipping at Charleston, the port to which the Liberty was destined.

She had been out ten or eleven days previous to the storm, and the usual voyage is from ten to twelve days, but not much out of time if extended to eighteen. She might, or might not, be within the fury of this particular storm. Was there any material difference, between the general information, which the defendants possessed, and that which the plaintiff possessed, as it respected the fate of the Liberty? If there was, the latter should have been communicated.

Would you, after seeing this letter, and being yet ignorant of the fate of the vessel, have deemed the risk increased, from what it would have been estimated, with the general information possessed by the defendants? What was the plaintiff’s opinipn on the subject? At the time he received the account from Steel, he was his own insurer. Though he seemed to think lightly of the information given in the letter, he yet applied . to insure the same evening; repeated it the next morning; and, after evident marks of . impatience, got it concluded before the arrival ' of the post.

If you think, that this conduct was induced by the contents of that letter, then it is plain, that he at least thought the information very material; and, on this point, •' furnishes strong evidence against himself.' What was the conduct of the insurance, of-' fices? Under the impression of the general information of gales on the coast, double premiums were though sufficient.

After the news of the Charleston storm had reached one of the offices, they still insured at five per cent; but they did not know, that it was as severe as the letter to Steel had stated it, and they calculated, that the Liberty had not reached the place where it happened. After it was known, it appears, that, at another office, the risk would not have been taken at fifty per cent, if at all. Now, if the information of this particular storm was material, the defendants ought to have known it, so as to have had an opportunity of deciding, whether to take the risk, and at what premium.

The plaintiff suffered a nonsuit