KInD· t1. GRJjlENWICH
feet of it outside of the rancho, whereas it is distinctly declared in the field-notE's of the patent that that bath-house, as also two smaller ones to the north of it, all of which it was shown by the evidence were in existence when the official survey was made, were to the left of the line as run by the government surveyor, and consequently within the lines of the ranchoj and they are so represented on the plat. In view of these facts, it is unnecessary to consider the improbability of the government survey having been run through the Santa Monica bath-house, which, it is shown, was at the time of the official survey, and yet is, a large and prominent structure, conducted for bathing purposes, in front )fthe town of Santa Monica, which the patent declares and. shows to be located on the bluff, about half a mile distant. If it be conceded that the westerly boundary of the rancho does not extend to ordinary high-water mark, the evidence leaves no doubt in my .mind that the line run in accordance with the courses and distances given in the patent includes the premises occupied by the defendants; and therefore, in view of conceded facts in the case, the plaintiff is entitled to recover. But I am of the opinion that the true westerly boundary of the rancho is not the meander line of the surveyor, but the ,Pacific ocean, which means the line of ordinary high tide. As has been seen,the rancho begins on the sea-shore at the north-westerly corner of the Rancho Ballona j thence the line runs easterly, and by various.other courlles, until it strikes the coast again, and thence along the coast by various courses and distances to the place of beginning on the sel;t-shore. The meander line down the coast was necessary for the purposeQf ascertaining the quantity of land embraced within the survey. But that the ocean, and not the meander line, as actually run on the grounQ., .was intended to be the westerly boundary of the rancho is clearly shown by the fact that upon the official plat, made from the field-notes, and annexed to and forming part of them, the meander line is represented as the line of the ocean. See Railroad 00. v. &hu1"TMir, 7Wall. 278. There must be judgment for the plaintiff in each case, and it is so ordered.
(Ofretnt Oourt, 8. D. New York. June 21, 1888.)
mURANOB-CONDITI()NS oJ' POLICY.
A condition in an open policy of insurance on the excess of value above '20 per barrel of spirits to be forwarded by carrier, that the assured, upon payment of loss thereunder, should assign all his claim against the carrier, and that any act of the assured, waiving or tending to defeat or decrease any such claim before 01' after the insurance should avoid the policy is not broken by the shipment of 75 barrels of spirits covered by the policy, of the actual value of $7,808at a stipulated valuation with the carrier of $20 per barrel. as Ule condition provides only that an existing liability of the camer when perfected, shallJiot be waived or diminished by the assured, but not that he should jlerfect such liability.
At Law. ' On motion for new trial. Action by John S. Kidd against the Greenwich Insurance Comoany, cn an open of insurance. Hamilton Wallis, for plaintiff. OsbornE. Bright, for defendant.
WHEELER, J. This is an action upon an open policy of insurance of $5,000 upon the excess of value above $20 per barrel of spirits to be forwarded by carrier from Des Moines, Iowa, $150 to be deducted in all -cases in lieu of average, the assured, by accepting payment, assigning and transferring to the insurer all claim against the carrier or others for loss to the extent of the amount paid, and any act of the assured, waivto defeat or decreaAe any such claim, whether before or ing or after the insurance, to be a cancellation of the policy. Seventy-five barrels of spirits covered by the policy, of the value of $7,308, were forwarded by the Star Union Line at a stipulated valuation of $20, and, in <lase of legal liability for loss, the company having custody at the time alone to beheld responsible. The contents of 62, and a part of the contents of the other 13 of the barrels were totally lost by fire and the wrecking of the car containing them Ht Englewood, Ill., while in the custody of the Chicago, Rock Island & Pacific Railway Company, one of the compa.nies of that line. That company paid the plaintiff $1,370.24 for that loss, at $20 per barrel. On the trial a verdict for the plaintiff fol' $5,321.25, the amount of the policy less the $150 in lieu of average, with interest, was directed. The cause has now been heard on motion of the defendant for a nevv trial. The defendant does not claim that the amount received from the railway company, or any part of it, should be deducted from the amount <If the policy; but only that the restriction of liability by the stipulation "-of valuation and receipt of damages for the loss under it have canceled the defendant's liability. If the claim referred to in the policy means the whole liability of the carrier which would arise out of the undertaking to carry, this point would appear to be well taken, for the assured -did decrease that by the stipulation of a value for the purposes of the carriage much less than the true value. This provision in the policy is not, however, that all liability of the canier which might arise shall be insisted upon and created and not diminished from what it would be withcut special contract, but that the claim against the carrier, as it actually .exists in favor of the assured, shall not be waived or diminished, and shall inure to the benefit of the insurer. The policy does not provide that any liability of the carrier shall be perfected, but that, if one is perfected, it shall remain for the benefit of the insurer. That provision has not been broken by the assured. This clause of the policy is understood to be merely the expression of the right that the insurer would have by the common law to the remedies of the insured, against others, for the property, on payment of a total loss. These are the remedies as they actually exist in favor of th.e assured, and subject to all lawful limitations upon them when created. Insurance Co. v. Trd/ruportation Co.,
117 U. S. 312, 6 Sup. Ct. Rep. 1176. A limitation of value in a contract for carriage appears to be lawful. Hart v. Railroad CO,! 112 U.S. 331, 5 Sup. Ct. Rep. 151. The plaintiff does not appear to have done anything which was to avoid the policy if done, nor to have deprived the defendant of any right which the policy conferred to affect its validity. Motion denied.
HECKMAN 'D. MACKE1.
«(Jiretttt (Jourt, S D. New York. June 22, 1888.)
KASTER AND SERVANT-NEGLIGENCE all' VICE-PRINCIPAL·
.· Plaintiff, while in the employ (;of defendant, under directions of a foreman, put up a about 28 feet from the ground, firmly nailing the two planks 'which constituted the floor. so that he could go upon it in doing the work. During his absence, another workman, under directions of the foreman. removed one of. the planks, placing another in its place, without n!J,iling or fastening it. Plaintiff, not knowing that any change had been made, returned to his work on the staging, which let him fall to the ground, whereby he was injured. Held that, not tbe bilure of plaintiff's fellow ·workman to nail the plank which replaced the nailed one, but the act of the foreman in misleadiDA' plaintiff into danger, was the cause of the injury, for which defendant was Iiable. 1
At Law. On motion for new trial. Seth S. Terry, for plaintiff. James Stikeman, for defendant.
WHEELER, J. This is an action at law. The plaintiff's evidence tended to show that he was a carpenter, and that while at work, with others, for the defendant, under direction of a foreman, he put up a staging at the gable of a house which they were finishing, about 28 feet from the ground, and nailed the two planks which constituted tbefloor of the staging firmly to the brackets, so that he could go about it, and beyond the brackets, as would be necessary to do the work which he was engaged about, with safety; that, while he was absent from the staging, the foreman directed another workman to take one of those planks away to use elsewhere, which was done, and another put in its place, without being nailed or otherwise fastened, and without the knowledge of the plaintiff that any change had been made; that he returned to his work on the staging; and, relying upon the plank being fastened as he had left it, stepped out on it beyond the bracket, so that his weight tipped it down, and it let him fall to the ground, whereby he was, seriously injured. The defendant!s evidence tended to show that the foreman gave no directions for removing the plank. The requested the court to charge the, jury that, if he furnished, ·sufficient materials to make usafe staging, he dis-
lAs to the liability of a master for negligence of a vice-principal, see Foster v. Pusey, (DeL) 14 Atl. Rep. 545, and note; Robertson v. Cornelson, 84 Fed. Rep. 716.