Washington Mutual Insurance Co. v. Reed and Brown. similar mean- [210 likely to be encoun what perils are to be considered ordinary and what extraordinary, in the sense in which these terms are used in this connection. The term "ordinary peril," is not used as of ing with common or frequent peril, or peril tered; nor does it have any relation, so far as I have been able to discover, to how great or how small the force may be that is brought to bear, or is encountered. The term, I think, is used rather in contradistinction to accident. The insurer does not become liable for inherent defects in the thing insured; he does not insure against wear and tear-such things as all vessels must necessarily be subjected to; does not insure against certain loss, but insures against accidents. The question how great the force was that produced the injury, may be an important item of evidence, going to show seaworthiness or the reverse, or the like; but if the force produces the injury on a seaworthy vessel, the insurer is liable, if the peril belong to the class insured against, although such force may have been ever so small. The case that gives the most color to the distinction that plaintiff's counsel have drawn between ordinary and extraordinary perils, is the case of Hazard's Adm'r v. The New England Insurance Company, 8 Pet. 557. In that case the court say, that the policy does not cover ordinary perils, but extraordinary ones, and yet we think it falls far short of sustaining their position. In that case, the judge, on the circuit, had charged "that if the jury should find, that in the Pacific ocean, worms ordinarily assail and enter the bottom of vessels, then the loss of a vessel destroyed by worms would not be a loss within the policy." The Supreme Court sustained this charge. They based their decisions principally on the case of Rohl v. Parr, 1 Espinasse. Judge McLean, however, remarks in delivering the opinion of the court: "If worms ordinarily perforate every vessel which sails in a certain sea, is not a risk of injury from them as common to every vessel which sails on that sea as the ordinary wear and decay of a vessel on other seas? The progress of the injury may be far more rapid in the one case than in the other; but do they not both arise from causes peculiar to the different seas, and which affect, in the same way, all vessels that enter into them?" This case, I think, clearly keeps up, *and is based [211 on, the distinction between injuries that must necessarily occur, and accidents that may or are likely to occur. If all vessels that Cincinnati and Firemen's Mutual Insurance Cos. v. May. sail in the Pacific occan must necessarily be perforated with worms, it could not be an accident that the particular vessel in question was perforated by them. We think the commercial court erred in their charge to the jury, and that the Supreme Court decided correctly in reversing their judgment. The judgment of the Supreme Court will therefore be affirmed. 1 CINCINNATI MUTUAL INSURANCE COMPANY v. JAMES MAY. FIREMEN'S MUTUAL INSURANCE COMPANY v. JAMES MAY. If a steamboat or other vessel be overloaded or unduly laden, she is unseaworthy. But whether or not unduly laden depends upon the capacity of the boat or vessel, not upon the depth of water upon the shoals and bars in the river upon which she is being navigated. The capacity of the craft, not the capacity of the river, is to control in deciding a question of this character. If a boat or vessel insured meets with a disaster, the captain and crew are bound diligently to labor for the recovery of the property; but the insertion of a clause in the policy requiring such labor and effort, does not impose any additional duty upon the assured. It is not proper, as a general rule, to inquire of a witness upon the stand, who has heard the testimony in a case, his opinion, from the knowledge he derives from the testimony, as to a particular fact, which is material in the determination of the issue in the case. ERROR to the superior court of Cincinnati. The original suits in these two cases were commenced on the same day, by James May, against the defendants in error, in the superior court of Cincinnati. The writs bear date July 24, 1847, returnable forth with, to the June term of the court, which seems to have been continued until after the date and service of the writs. 212] *In the first case a declaration was filed on August 27, 1847, in assumpsit, upon a policy of insurance, bearing date February 20, 1846, by which the company caused to be insured upon the steamboat Olive Branch, $3,000, continuing the adventure from twelve o'clock of said 20th day of February until noon of February Cincinnati and Firemen's Mutual Insurance Cos. v. May. 20, 1847. It was charged that the said boat was lost by the perils insured against, on August 7, 1846. A similar declaration was filed on the same day in the case against the Firemen's Mutual Insurance Company, upon a policy bearing date December 2, 1845, whereby the sum of $3,000 was insured upon the same boat, the risk to commence at noon on November 28, 1845, and to continue until noon of November 28, 1846. In each case it is stated that the boat was to navigate the usual western waters, with certain exceptions stated in the respective policies. A plea of the general issue was filed in each case, with notice of set-off, etc. At the January term of the court, 1850, the cases were submitted to separate juries, and in each case the jury returned a verdict for the defendant in error. Upon the return of each verdict, a motion was made for a new trial, and the reasons assigned were: "1. That the court erred in its rulings on the trial, as to the admission and rejection of testimony. "2. That the court erred in its charge to the jury. "3. That the verdict is against the evidence." These motions were overruled by the court, and judgments entered upon the verdicts. Whereupon the plaintiffs in error excepted to the several rulings of the court, and their bills of exception were allowed, sealed, and made part of the record. These bills of exceptions, with the papers and depositions, are extremely voluminous, and it would be useless to insert them [213 at length, as it is believed that enough appears in the opinion of the court to lead to a correct understanding of the points decided. The errors assigned in each case are, in substance, that the superior court erred in overruling testimony offered by the plaintiffs in error; in refusing to charge the jury as requested; in the charge actually given; and in overruling the motions for a new trial. COFFIN & MITCHELL, for plaintiffs in error. I. The question propounded to Ross was proper, and the court erred in sustaining the objections. Ross was an expert in the true sense of the term. 1 Smith's L. C.. 286, 287; 1 Greenl. on Ev., 5 ed. 555, n. 1; Steamboat Clipper v. Logan, 18 Ohio, 394, 396. II. The policy in each case contains this clause: Cincinnati and Firemen's Mutual Insurance Cos. v. May. "And in case of loss or misfortune, as aforesaid, it shall be the duty of the assured, his agents or assigns, to use every practicable effort for the safeguard and recovery of the said steamboat; and if recovered, to cause the same to be forthwith repaired; and in case of neglect or refusal on the part of the assured, his agents or assigns, to adopt prompt and efficient measures for the safeguard and recovery thereof, then the said insurers are hereby authorized to interfere and recover the said steamboat, and cause the same to be repaired for account of the assured; to the charges of which the said insurance company will contribute in proportion as the sum herein insured bears to the agreed value in this policy, but in no case whatever shall the assured have the right to abandon, until it shall be ascertained that the recovery and repairs of the said steamboat are impracticable, nor sell the wreck, or any part thereof, without the consent of this company." The court charged that this clause "rendered the insured no more and no less responsible for the negligence of the officers and crew of the boat, in saving the boat after the disaster, than he would have been if no such clause had been inserted." 214] *In this we think the court erred. The testimony justified the defendants in fairly raising on the trial, to the court and jury, under the above clause in the policy, these three questions: 1. Whether the insured, by his agent, did use every practicable effort for the safeguard and recovery of the vessel. 2. Whether, if he had adopted prompt and efficient measures for that purpose, she could not have been saved with but a partial loss; and, 3. Whether, if he did not adopt those measures, he could recover for a total loss, The verdict in each case was for a total loss. 1 Marsh. 334; Mitchell v. Eddie, 1 Term, 613. 2 Arnould on Insurance, 773, 1086. Upon abandonment, the master becomes the agent of the underwriters, from the moment of the loss, and is responsible to them. Until abandonment he is the agent of the assured. 1 Arnould, 197; Jumel v. The Marine Insurance Co., 7 Johns. 423, and note (a) and authorities there cited, and 519; 2 Phillips, 439; Smith v. Marine Insurance Co., 7 Met. 453. Independent of this clause in our policies, the assured, upon Cincinnati and Firemen's Mutual Insurance Cos. v. May. meeting with a loss, not absolutely total, but only highly probable, may, by abandonment, make it in effect total. 2 Arnould, 997, 998; Lord Eilenborough, in Wellish v. Andrews, 15 East, 16; the same learned judge, in Bainbridge v. Neilson, 10 East, 341; 2 Arnould, 1086, 1114, 1181 (sec. 409), 1196, 1197; 7 Johns. 519,520. III. The policy provides that the insurers shall not be liable for any partial loss, except in case of general average, unless said loss amounts to five per cent. on the agreed value in the policy, exclusive of all expenses of ascertaining and proving the same; "nor for damage or loss from, or caused by, the said steamboat being unduly laden during the continuance of this policy." It is evident that she was too deeply laden for the water. We asked the court in both cases to charge the jury: *1. That, "if the Olive Branch, at the time she left St. [215 Louis, was loaded so as to draw more water than there was in the river, such overloading made her unseaworthy; and if such overloading contributed to her loss, the plaintiff can not recover. "2. That if the jury shall find she was so overloaded, she was, in the language of the policy, unduly laden, and the plaintiff can not recover for a loss arising therefrom." Which the court refused to charge, but charged that, "if the boat was laden deeper than her capacity would safely allow, then she would be unseaworthy and unduly laden, and not otherwise." And the court also charged, "that if the Olive Branch was so loaded as to draw more water than there was in the river, such act of overloading was one of carelessness on the part of the officers and crew, and any loss consequent thereupon was within the risks insured against (see 2 Arnould, 772, sec. 287), and covered by the policy; but if the boat had been loaded beyond her capacity, or so as to sink her below her guards, she would thereby have been rendered unseaworthy." We claim that the court erred in refusing to charge as requested, and in the instructions given. 1 Arnould, 679, sec. 251; Weir v. Aberdeen, 2 B. & Ald. 320; Chase v. Eagle Insurance Co., 5 Pick. 53; Abbott, 346, 347; 1 Arnould on Ins. 697; Perrin v. Protection Insurance Co., 11 Ohio, 147; 5 Pick. 53; Bush v. The Royal Exchange Assurance Co., 2 B. & Ald., was decided in 1818, and Walker v. Maitland, 5 B. & Ald. 171, in 1821; Waters v. M. L. Insurance Co., 11 Pet. 213; Walker v. Maitland, and Bishop v. Pentland, 2 B. & C. 219. In Walker v. Maitland, the case of Bush |