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' -.`..:!..f.4;:.:-:'::',,: 'l.-;.,:•.'!"-:.:....,::•••'::1•::-: .- *.,".....,;::;:,;. .i-,;..::•;., ' F . .~~' .'? 9 • t , .-- . . . • • - ITTII - • • . . . . . . .ForgAapsup ._1786. 'Wm* day*. PUBLISEISD DART aND Warllttt BY , 11 1 D.DIL. ffi .6c 0 0 . nmerasiv, whoTs annanow • "-• .PlTrroßt7 tiIBDAY MOWING, SEPT. 8, 1861 4 A.0)11-tyPirltsburgh Legal ✓oarual: MIRY CHIT OF ALLEGHENY .CO. oldo .4larsh, for use of Jai. Rees, nour oho for rue of Ws. Bainhill .F.Ztoing It Co., . • k F. Sdlers it Co. The Citizens' . huwanee Comixt_ny Inn mice on Ste,innboots ton 'payola* , ttoloortgago erodttatuNogltigettoo of Um assured no airtime to ottdoront • ;I—Where an insurance is effected upon the Interest of the owner;of a stearaboat,theioss, if any, payable to a mortgage Creditor, being intended,' a; between ; the owner and mod " gages, as a security for the debrief thelatter; of Whleb fact - lime:underwriter I L informed - . when the -application for a made— . . It:annoi be regarded ;Siren inrorince of: dot interest ofthe mortgage - e,:allhough intended - for his benefit ; and where the owner cannot : : -.recorer on the tong theist 'Cini be, no recove. ry in bii _nuts for the use of the ;mortgage 2—ln the absence of fraud or wilifolndsconduct, 'the loss is to bo attributed to- the ironic:ate cense, and if occasioned by a Pail insured • ':against-is within the policy, althc4h the re.. mote cattie may be the negligence of thi in sured, his servants or agents. _The simple fiet of negligence in•eitlicri however great in 'degree; is' no defence lo' underwriter. • . B—Where :theraii no evidence that WisTatino, by means of which the boat lei set on fire. , was carried without the licemserequhed by the ' Act of Cong*s, thelegal presumption is that `the requirements of the law in this respect were complied with. This" was an action of covenant on a policy of insurance. The history, of the ease is fully given intbe_opinion infret. Barton, Shinn and Penney,ifor Woods and Ffilticirar, for def?ndants. The opinion of the Court int. deliver ed August, 81, UM; by .• Wmulats, J:—This is 'an 'action of COvenant bronglo by Waldo' Marsh, for the use of.limea Rees and - others, t l 1 rd: 1, li I :1 _ _ against the 'Citizens' , Insurance 'Comp , ny, upon a policy of insurance, bearing date the 13th of . April l 1858, issued by the said company, causing the said %l ac; Marsh, loss if any, payable to James Rees, to be_insured - in'the sum! of $5- - 000, upon the one fourth of the side ' 'wheelsteamboat "OCean Spray:" where __otthe_said W. Marsh.was.then. piaster : - Riginaing the adventure - upon the said steamboat, lost or not lOst,.at noon, April 2d,1858, aud i t) .continue and I endure until tbe 2d of Mayor until notified by James Rees ;• in consideration of a pre mium at the rate of 12 per cent. per annum. The insurance, specified in the poliohis a general insurance to navi gate the Ohio river and its tribUtaries; die Mississippi river at and between Keokuck, lowa, and New Orleans, La.; and the lilitiois . river, as said !trams are usually navigated biboatsi of her class; and the adventures and pia; in eared against, are of••the, seas, laies,,,ri rem fires, enemies, pirates, availing thieves,and: all such losses andonisfor 1-7-141111014hiek4halleome to-the Nut, de trimeat, or damage .of the said! steam - beat, ".Ocean Spray," according to the true intent and meaning of thci policy; and it is agreed that the , company shall `.,4 not be -liable for. any lees or damage L arising from, or occasioned by the said steamboat being unduly „laden,i nor for damag - " if ~any le es or e arum f rom, or ea casioned by, theburatin of the collapsing-of- flees ,: or' the &ran ent, I '-'-' or 'the ebreaking ', of, the- eng irt or ma .- ritiatila 01.17".einnttlinenqn tin therefron, : eta the' same be l caused by-iniaroldabliieite — rnalvicdenoa. , The 'Tolley also contains ,various other sti 4inlatiena aid conditioric--aucli as are I, u in marine policy s,which in . i not to specify , or nod .'''' The . , ;agreed value of the last was 6,.000 ! ;and the - agreed a mount of other riain ' ranee thereon, $16, 0 90-, •'' ' i l',,iicri sethe issuing of: the plicy, the said Waldo 'Marsh 'by inde nture beariog -, date, *didy executed, itekiww . ledged and;eceided, the 284 of April, 185Vitt the office of , the Barrel* tad Inspector of the Revenue, &0., in and for the port of Pittsburgh, had-mortgaged tbe'sa!d:rteangonatL!OPetn 8 11. 1 Yr-tn - • Javier iltece id trust 'to salve t• to the ssidjatioießeet,W.Rielisidion rims ' '-'ihttriftt,-BOTtnnt'ihnii'.innion:tfte en dorsees, the payment at "amain Trends. . 60 :4' intini`drinn=.'hk . thn - - Phil Waldo :" •'' Mnratt; hOthtL 'even date 'with the , !said indenture, and 'payable as follows, Three to the .; order of Amnia Bees tor '41.740 rich, plyablei icarpecitkely - at ,•. four, sir and nine i'tkattbs—tafingithe balanbe die him for building and fain •-: - ebbing- the --engines ind Axing* of the said steamboat;' "'Ocean SpnA is;dit . in Two to the order o N f . for $ll5O each,- at four ana riglit_ months—bell% the balance due hint for building and furnishing the cabin and' joiner work of. Laid steamboat. i -;;;;-----,, - -- Two to the order of - Thornburg' & ao l d for:sB6o irachavablent six and ---, ' algid months—being . the balancer doe she said firm for the painting end of the said tg °Cosi Spray.' ; One, if nottwo, of the notes payable to the order of James Ramiro itiab. •,..',sequenVy indorsed and, delivined - Vi , Wei: - :,TratiiiiiillrcO4'',.2l3innotrai to'the order of. W. Richardson were indorsed to W. B. Ewin & Co, and the_nateit.l to Thornburg iir.oy& were indented to .: • ,t. R. E. &Mins da Oco.„ snit are now held •-;;; kiiiialideiliii.resirietli4.; i ' '''' . l ; ''',‘"Jilt . tt - pie thfccsernettelint tiel,, '., '''.: .:44 , _ the rawest - aforesaid, James -Rees; I 1 I il . on the 31st of October, 1857, with the conseakof the indorsees,assigned the mortgage to Jared M. Bnish, of the firm of . Wm. Barnhill & Co., -for the vadat rrpossi of enabling hire, as their attorney, m fact; to collect the, amount of their respective tiding, and to satis fy the said mortgag!. Mr. Brush pro. ceeded to St. - LOMB, where the beat then was, and there received from Cap tain Marsh the sum of $l,OOO, which is all that has been paid on account of the, said claims. The notes and mort gage were afterwards sent to , Messrs. Thomas ik Sharp, attorneys at law, of St. Louis, for collection and foreclosure, who instituted the necessary proceed ings-for this pi:Rime; and'upon Capt. Marsh's voluntary appearance and con fession, judgment was obtained for the amount due with a decree for the sale of the boat.' _ Capt. Marsh then proposed to the said attorneys, in order to obtain time for the payment of the judgment, and to prevent, if possible, a sale of the boat, to assign to, Mr. Bees, for the benefit of the parties in interest, two policies of insurance on the boat—one issued by the Quaker City Insurance Company for $5,000, which would ex pire on the Ist of April, 1858; and the other issued by the Delaware Mutual In surance CompanY for $3,000; which would expire on the 16th of April, 1858—and in furtherance of the pro pesition, and because he could not as sign the policies without the consent of the said Insurance Companies, he- de livered them to the said attorneys, au thorizing them to send the same to , Mr. Rees for renewal at his expense, pro mising to pay the premium therefor, with the suggestion that if Mr. Rees did not consider these offices•entirely safe, he was at liberty to insure the same amount in any good offices as security for the said judgment Accordingly Messrs. Thomas ?z, Sharp, on the 18th of March, 1858, wrote to Mr. Bees informing him that judgment bad been obtained. for the amount due with decree for the sale of the boat— of Mersh's proposition and request for indulgence--molosing the policies and , suggesting the propriety of having them renewed, or new ones issued,. making the loss, if any, payable to himself—and advising the. extension of the indul gence requested by Marsh if consistent with a due regard to his own and the others' interests. Mr. Rees exhibited this letter to the Secretary of the Citi zens' Insurance Company when he made application for the policy in this case, who indonsed 'an acceptance thereon, in terms and conditions similar to those contained in the policy subsequently is sued and delivered to Rees, and upon which this action is brought. The steamboat, "Ocean Spray," was destroyed by fire, on the 22d of April, 1858, on the Mississippi river, three or four miles above St. Louis, while on her way to Peoria. She left the port Of St. Louis between four and five o'clock in the afternoon, in charge of Waldo Maids, captain and Amer, and, at the time_ of the casualty, was racing with the "Hannibal City,' • which had started i l from St! Louis" about the same time, bound for Keoktik. When the " Ocean Spray le ft , she had but "a small head" of steam, as the Captain was intending to land about a mile and a hal above, and take on board a quantityl . „ f salt; but when the boats commenced racing, this intention, at the solicitation of the passengers, was abandoned; and, in or der to get up - steam, a small qu'intity of rosin was at first need for the purpose of igniting and increasing the combus tion of the wood and coal—and then, upon the 'suggestion of a passenger who had a barrel of turpentine on board, the Captain, after consulting the engineer, and being advised that the turpentine would not be dangerous if properly used, gave Orders for its use. The barrel of turpentine was 'taken out of the hold by the mate and some of the. hands, and placed in front of the furnace, about fifteen or, eighteen feet from the furnace doors. The mate then knoiik; ed out bead of the barrel, and dip ped out twn-thirds of a bucket of the turpentine, and sprinkled or poured it over the coal in the has near the fur *ace. - Some of the hinds; and come of the passengers also, dipped n number of sticks of Wood into the - barrel of tur pentine, immers ing and saturating them with the fluid, and threw them upon, or at the side of, the box, of coal near the furriace. Some of the wood and coal, I thus' covered with the turpentine, was thrown the furnace ; and, shortly after, .in .'again opening the furnace doors to stir up the fire, some burning coals fell doWri upon the saturated wood, setting it on fire. Efforts -were made to throw the burning wood overboard, but it was found impossible to do` this, as the wood had become almost instan- taneously enveloped in the flames. Or ders were thou given to _ remove, or, throw overboard the barrel of turpen tine, but, in the attempt, the barrel was upset, and its contents poured out. The turpentine, as it ran down the 'deck to itbeisurithst woodi took Sur r . and as'the - fluid router flow followed,' and in a bititneriaite all that part of the, boat was ablaze: The- pilot lan the boat to the. •Mbssouri -. ahem,. but the flames spread :`with istiolCrairdity that the pat sealPsti'lfolt,, I,7i.diab:' - lkmo to I escape. Four; or Lye : we re. di:Owned, and in a OVA tiOuitbehoit Was-,burned to the . r's: -- edge,T*Pd - th eTlicircting hulk flailed down the current. , - - 7 Thicompiitiiyefased to pay the in t':4ace on' ttita ground that the lasi she occasioned s UdiCOl.4l/Ct of the ,Captain and erew sating nudes his or: sidtthetetTat....thit i ttetinn was Pro l liThltit.M 3o P 3 4..for the''rule ofthe. tin:l4pp erediteze, thesureinaured: - . The dechiratlOA contains two Omuta : The first 'eonnl , aeta out the ptdiey at leagth, and alleges -eta ezeention and de.WaY'l4 !hi; 'defendant lo theridat: tiff on the 18tit of April; 1858;, and Ateitif,ihat, on the 22d of CD he A#isaanpppp " is iTee .4pri .1868, kph, lowa, and , New Odaiar, jai , to ~ `".-. . i'''', " -.; .'', :;.,..i,:_'",:'"-.a,'' AND COM.MERCIAL fiITtSBURGH; TUESDAY -MORNING, SEPTEMBER 3, 1 861. wit : about five Mike above SE. Louis, Missouri, the said • steamboat, " Ocean Spray, caught ire and ma burned, and became, and wawa total loss. Tbe ;second count sets out an appli , cation by' Jamie gees; creditor, &e., to the proper officers and agents of the said ; Insurance Company to insure him against loss by accident or danger to the said steamboat, i 0 Ocean Spray," whereby his security for the said debt, owed by the 'said Waldo Marsh, 'owner, &c., and secured by a'mortgage' on the said steamboat, should be loiti and al , leges the execution and d i alitferi by the said company:to'hitu of the policy men tioned in the first, count,, on the, day and year aforesaid,'whereby the' said coin. pany covenanted 'anclagreed to'pay bim the mild sum mentioned in case the said ,steaniboavabould be lost—and avers thati'on the -22 d 'of April, 1858, at or nines 'SCL,tidia; Missouriohe said ".(.oCiiit,fi:,Sprai," caught fire and wis consumed;:anti,heeame a total Theldefendant pleaded covenants per formed absque bac., &c., and upon the trial of the issue the foregoing facts were.develoiett by the evidence. .A dumber of points were submitted by . the ceumel on <both aides, upon which they Ans. Ted the instruction of the Cdp:reto the jury: But the Court declined to charge the jury on the questions of law presented by the' counsel, reserving the r same for the consideration of the court in bane, and, as it was agreed by the said coun sel that there was no dispute in regard to the !total loss of the said boat by fire, on the'22d of April, 1858, nor as to the value thereof, or the intermit of the in sured iherein—pioof of lois and proof of interest, itc., to the , assure* as re grazed by the policy, all of .'vhieh were admitted, the court Submitted three questiims of fact to the jury for their deterrnination, viz:— , I. i Was the• loss of the isicamboat "Ocean Spray," occasioned hy the fault or ne 4 limence of the legal plaintiff, Wal doe, Marsh, captain and owner `of mid boat If so, did each fault amount to gross pegligence;iecklesanew, or will ful misconduct? lII', Was the said steamboat lost without any fraudulent intent - , on the part of the said Waldo Mush to: destroy the said boat? , And directed the jury to assess the damages arising from the'said loss, sub ject to the opinion of the court in bane, upon j the question reserved, ; viz : whether the plaintiff, under the plead ings and the admitted. facts in the case, the application and the acceptance there of, anff the policy and mortgve giv en in 'evidence, (Pions same) is entitled to recbver the said damages onlhe find ing of the jury upon. the questions of fact sUbmitted to their determination. Prout same : And in answer to the said - questions submitted for their determination, the jury found I. i That the loss of the steamboat Ocen Spray," mentioned twee poli cy sued on o was occasioned by the fault or negligence of the legal plaintiff, Waldo Marsh captain and owner there . . , II.; That the fault of the said cap tain, in this behalf, did amount to gums negligence, but not to recklessness, or willful misconduct. 111. That the said steamboat was lost_Without .any fisudnlent intent on the part of the Mid Waldo Marsh to destrby the said boat. Add the jury assessed •the damages at $5659,50, which they found for the plaintiff, subject tooth°. opinion of the cour upon the question of law rum /Ai the plaintiff, then, upon the re served question, entitle d a judgment for the amount found by the jury- - His counsel 'contend that he ls-ori two grounds The policy was intended -to be, and is, an . Insurance of the .14ortgage interest of Janies Rem; in his also right and as trustee, in the steamboat !Ocean Spray." 1 . 4 The loss of the said steamboat by fire was one of, the ,perils Wand against: j• And therefore, on both grounds, the defendant is liable for the loss although occaiioned by, the. gross negligence , of the daptain and -owner. •.• , The defendants' cotuuseleron the oth er lined, contend that the: 'dOinpany is not; liable for the loss, and that the plaintiff is not entitled to recover there for -r . 1.1 &emit the ussuranee contracted for in> the policy, is ilisniance of the interest of -Waldo Mars fa owner of the one fourth, of d ui "eteam4 boat " Odean Spray," and not an in prance of thri mortgage intereet, or lien of the mortgage medium: j ' 11. -The loss of the said boat by fire waroceasioned by the gross negligence of tie captain and owner. What then was the contract as mina ed by.the policy. in this -ease2 Who wore the parties thereto, and what -Wok its Subject matter 1' Was • the Contract with the owner or with the mortgagee„ • to Whom the loss was made payable? Was it the interest of the owner,,or the interest of Alta,mortm. eleditor;,*that was insured? Undoubtedly 49 poso and opivii of the insuraßcei as, N., tweets the owner, Mid Mofigagee,twiti the protection ana security interest of thiThtter,rind the, undeniiiier was f tibia ,when the proposal , for the:pi:64 was • ituide- sad-: ,aceepted.-- But the motive indnatng a; :contract, or thQollateral purpose , to be imbserved thereby doiss not neeeisiiiiideiennitte its natare and - olutlua - heap to detemrine itrinealaillCwlterO the. last. linage is doubtful - or : l ohiessre; But whOre the 'patties; .t#:,,the 'contrast ! are expressly named, its subject matter stip dation' andlionditiorui elinirry, defined, 'neither - AO, Mollie: inditoingofte con tisot,yer the colletteril utitto be made ihe'reof,rcan be allowed,to4ntrol ,:or Valy l its intoiptetatioit' Theeontraot EME3 in this policy was clearly with the own er. It was his interest that iIISUP: ed. - It Matters not that .the Insurance was. effected, in his aliseno., , l at the-in stance of Bees, to whom- the loss was mide payable.. Bees was but the agent of the owner in making the contract, and his appointee to receive the 'money in case. o a loss.' And; 'therefore, if the owner"bannot recover for the loss in l question, there can be no recovery in his name for the use of his :appointee: i &ate mutialf Fire -Insurance' company vii. Roberti; ,T y 438. Doubtless : diel the latter, by real : of hie tarticipation; in the contract,- - because; by its •ex tiress terms; the lone is made. payable to him, mightmaintaittan action ' therefor in his own name: Ealing is. Zantaing cr, 1 Harris 50 ; Myers vs. "The Key. stone Mutual Life InsuraiimiDonipany, 3 Casey 268; but the undertaking : to pay the appointee was an undertaking , collateral toosnd dependent up4M rho . ' principal undertaking to insure theme er, and the right of the former, being wholly derivative, cannot' exened the, right of .the latter under rtritniri ;1 2 9. claims: Pei Hattate, Jostle& in Oros- Tenor vs. The Atlantic Mut u al beim''. limn C 00 + 112 3'13 Smith 391. And this brings us to the consideration of the main question in this case: 'II the company liable for the lose of the boat by fire 00-, essioned by the gross negligence of the insured? If the negligence were of so gross a character as to border closely on fraud, or to amount to willful ,misotal duct, the underwriter would tot be.rti; ble for the loss: Chandler vs.lrotees: ter Mutual Iffre Insurance Company;3 Cub., 328. Bat the 'jury in this case have found that the negligence of. the insured did not amennt to recklessness,' or willful miseanduot—and that -there was not a frandident intent on his pirt to destroy the .boat:.. By recklesenese,. the jury must have understood some thing more than gross negligenco—as importing a rash and culpable disregard of the obvious consequences of one's, acts, and as synonymous with willful . Imiscondnet. ' So that by the'finding .of the jury we have the case of a loss oc-' caeloned, not by . the willful misconduct lor fraud of themsured, but by his gross negligence. The only cinestion, there fore, is, whether the undawiter le lin: Ibis fora loss occasioned by the gram negligence of the insured. Whatever may be the, conflict be tween the earlier and later cases, it seems to be now fouled that the mere neg ligence of' the assured, however 'great' in degree, will 'not operate as a dis charge of the liability of the underwri ter. In the absence of fraud or willful misconduct, the loss is to be attributed to the proximate cause, and, if occasion ed by a peril iethand against, is within the policy, althoe,gh -the -.remota Uwe, maybe the negligence of the inenred; Ihie servants or agents : Patapsco In." surance Company vs. Coulter, 3 Pet: 222; Columbia Insurance Company vs.; Lawrence, 10 id 517 • Waters ve.'Ner : chants' Louisville %inmost Company, 11 id. 213 ; Mathews vs. Howard In surance C0,.13 Barb. 234; Hindi, vs; Schenectady County Mutual 'lnenrimee, Company, 16 id. 119; Gates .ve. Mme= son County Mutual Imam Compantt, 1 Belden 469; Mathews vs. Howard'ltt- Buratto° Compay, 1 Heron 9; Delano vit. Bedford Insurance Company, 10 Mass. 355; Copeland ver. New &gland Marine Insurance Company, 2 Met. 4321 Catlin vs. Springfield Fire 'lnsurance Company, 1 Sumner, 434; Williams vs. Suffolk Insurance company, 3 id. 276 j, Perrin vs. Protection Insurance Corima ny. 11 Ohio 147; St. Johns vs. Ameri can Insurance CoMpany; 1 'Dor 371; -Walker vs. - Maitland, 5 B. & A. 171; Shaw vs. Bobberds; 6=A. &E. 75; Sad ' ler, vs. Dixon, 8 Meee..& Weis. 895; American Insurance Company vs. Ins ley, 7 Barr 223., . , ~ Let us look at some of the authorities. In the cue of the.Patspeoo Insurance Co. 'kunst COtiltei,-Johnenn, Judea, in'delliering tticildpniiiikof :the Court, said:--"., It seems; generally ',Conceded, that in the ;or of itisuranen'ageinst fire on bind ) ? ushgenee of servants or of the I tenarit,is.miAtifence,ncii of the proprie tor, unless of nth x character as to sus tain the imputation of; fraud or design. And the;rale that ft lOas;`,tld proximate canso,of which is a periliinnundegainst, is.iloal 'Within:the PolicY r ilthough the refuge mus t! :nett* th e - wig-1101mo of the master ' or mariners, hasleon af firnonolin several oases in, the: English Courte."- ' In die, - Cdcunbiit'iriairMee Company of Alexandria; against Lairepod, it was rnled that a has by, fireooetudened ,by' , the mere fault , and ,negligence' of the assured, or his servants or agents, and without 'traria ordisign; is sloes with in the policy, upon the maul i ground that the fire is We proximate came of the loss j 'and...also :90 1 , 1 - the 'general groend that the - express exceptions in policies against tiny:leave ilusi i within ;the scope of thegeneril tante ; f such polities. - i The else of Waters .vs 4 The Mee chantelonisvilielessurriribi.,DOmpsey,. deserves special notice; reseMiling;-as jr-does, the present in . every Arundel feature:- The notion , was on '-'s marine policy ''' burning the _plaintiff' on the aM "Lioness ,' ' Liennlai" 'Alrillch he kt owner and - --master. . - The:l'l4low l teeiffitions'ofthe policy, and jho :i f ielle Junre:l Nabs; were in mateinanoe, the, same;a3 pa the policy in thisircheis. Th e 'beat - Wei 'het while in oWO Orthe owner, as captitin,ly being blewn -up, an d destroyed by means of fire, u-. 1 nicated to gunpowder. -In this 444101 we have seen, the boat was destroyed w hit e in cberge of the owner, es ci; tale, by means of fire emnrunloated turpentine. The defendants filed six pleas ;to the declaration in that case; the Ilest;three of which sufficiently indicate the nature of.the deface set up : ; '''' ''''" I. That the and crew of the LioneU rat the alien! her ' explosion„ an d 8 44:i ngoo negligently and oarelattly conductedUntmaaren in managing ind' attending to she safety of the cargo 5 .,.. 2, , '.4.;4 1, ' . ~. ' • - " -• ..:=2: -.-; .',L, 1.. i. . • ' . . 1 I ... . , . . • . . - - - - - • .. ... , .. <.„ . :. • .•, •• - ,-•-.. .-.-. , .......- . , - : :.- -:-., - .1 '' ' . , .., . ! . ::: i ~...-., . : „„ . ..1 ~. :..„ "% -; z r' .:- - . '• ' -', ' - - ' --- 4 . .• . , . . „ - • . ...,„ . . . - •- . - - :,.,.:. I .1 . . . . . .L. .. . ~. ... ..,] . .. ........, • •. J•t .:10'..RNA.L .- •• . . . .... :: ... . L . . t~aj . . . . ... board ; thaith steamboatwas, byy means Offire r nefigently and ;minimal,. core.. Inunitatedie gunpowder in the hold by the officers and crew, blown up and de ; ;grope& - ... , -1- 1 - ' : - ,'IL That the lioness was loaded in part with gunpowder, and that the offi can, and ornw, or 801120 of them,eareless if and negligently carried e lighted can dleor lamp into the - hold • where the powder wiestored, and negligentrilin:', died the candle; or `lamp at. the time that the powder was exploded-;' and thereby produced te explosion and de strUction of the sai d steamer. ' .. ' HE ' That__ Lioness 'lns tin 'part loade4with powilcr ; and the same arasn9.lnelti miegligently, end pare resalyttowed a ay in the boat, by the officers and ore ,or. some of, them; ttuit 'the grtnpoirdei.tamili:rdik:itil *ion of : the said ireildllfudnegrtiegligelace, and . , eireiSinessi ; and ihilicsat ' was cense !Peat! NA .atitl'AditiVed IN' exPlo ,, Thepointa' iiiiiiii;red tc:tir PIM , ' and tlinVendaiiii joined te a signer. ,iiiitheargurcenrotthe eansol before. the Judgirtf•thci Circuit Court, for the iliiiiiii of Kentucky; four questioniand 10!!tenannired1 1 Pciillillieb'thi judges were divided itr opinioT) I and the same, at the resinest of thi:,defondatitti, Were stated and certified 'to. the Supreme Court for its opinion; only two of 7bieb, viz: the 2tl and 3d k ired be 1, naked bare : .0. :. -.._. .. .... 241::. • lki,•;:--ibe ', potiet,Sf insurance covers Toes 'Of 'din bat by fira,canied by . the negligento,tarelessnesS, or un shfifulnene of the 'master and ', crew of the boat, Or any - 'of 1 hem ? 1 : , 3d....:1e the egstien of --the defend ante Ca their pt ' ; -- or either of them, to IS , the:effect. that e fire. bywich the boat was list, was caused by t he care lessness, or the:neglect, or sinskilful conduct of the master and crew of the boat,_ defence to thii`iation ? It will, be perceivedthat these two questions - 4'lmi* raise but one point, , viz : Whether - it 'loss •by fire, remotely caused btiiie negligence, carelessness, or titudtiAftthiese'of the master and crew Of thi;`vittier r ii 1 loss within the true intent and *caning of the policy. • In delivering the opinion 'of of the Court, Justice Story said: - "If we look to the question upon mere u plineiple, without reference to authority, tis dif ficult to itic4cifrobithetoeiai 011, that a loss byl i peril' kiiitred against ' and occasioned by negligence, is a hiss with in s *ins policy ; Judas there be some ntli• language in i,i'wLic,ill repels eimeTusion.. Snell` a lo ss is within the words, .and • - it is incumbent neon those wile, seek to make any exception from the ,Words, to show that it is, not within the intent of theatolioy. There is nothing:iiitiCaimiale; unjust, or 'liken; aistent with Oldie policy, in allowing -theinsurcd to insure himself against - all losses Ilia) arty. perils not occasioned , by his owe personal fraud. , It was, well ob served bylltlr.' l ltlitiOt.,ltalley, hi,deliver ing the opinion of the - Cent:tin Bush vs. The Royal Exchange , . ..Assirance CO., 2:Barn. 44 Ald. 79;' after referring to the general :lake in the Poiioy;•,,diit i'the'ob-_ ject of the assured ) certainly, was to pro. •c / 6 111 1 f, l'Oult- - ilk,*o - nalts inci dent toSe-Arisrine ad venture. The in derwfteebeing therefore Habig, prima facie; btti e expreisiterres of the:policy, 'it lies u pon him' to 'discharge li.lf. Does" lkdri tilit 14. - 'slinariotti that; the fire arose from the hrgligerice of the master and mariners?". _ 'lt ~ indeesV the negli gence of, the ; Master would exonerate the underwriter from 're a rnsibility, in a ease of el leis 'bitlici; if would also in , oases of; n loss by capture, or perils of the sca.'i f'Audit would, therefore, con stitnte i gooddefedesi, in =melon upon a polic y ,, to show, that the captain had miseonduoted himself in the navigation of the - ship, orthat be had not, muted an enemy to the utmost of hie power.' There ie great force in this r6soning, andtbq'prectioaVieconvenience of car ving out such an implied exception trots the r'geneird peril in the Mini, furnishes a strong ground againit it; and it is to lis romimbered, that the excep tion-its* be treated by ranstratitiontf the Court, and is not found in die terms of the POlicy. _The reasons or - public) policy,' and the presumption of intention in - the prtnes tolaake such, atternek tion ought tehtt 'ver'y 'clear indiunenid. vocal, to justify the Court ini such a course.!;, So far from any such policy or presumption being clear and unequivo cal, it may be affirmed that they lean the other wt." " Thi is not all: We must interpret • o is.ifottnuns.„reardieg to the kaown prkicipl 'of "the common law. It is a well cstOlished principle of that - law, that in all cases of loss wo are to'ittri bute it ; n the -proxboat e cause: causal inur i ztO lion raueta spedatur : end tbin has beeome a maxim, not only to govern titbit? Oates, but (as will be presently ' shown) Ito . govern cases arising - wilder policies nf uumrance. If this maxim is to be applied, it disposes of the whole argument in the present ease;' ..end ' -why , kti, should, got_ . be , so • applied ire •Arelitnible-tbk see any reason;'! , , And tlie learned Judge, after' refer.' ring tO number of authorities; and /X ludingte the circumstances under which the *sac of. the Cohnobia ",Idwantrate Camping` 04 m et4' 18 1& IP ! 1 4 116 e.n0" crime sulf!r 'a' in4sioniiludee thedie- , mission . thO. gneallini *AOC I words:: ' , "The,Court their thenghtobag, iinniX:l line4oClloleWtviiitkeinenteuileg'theriek of l ' ar / b 7 e e ry *tOVW 3B :l ll 4 ll3 ltani,' mate cause was ll'parlimstired kunst, * l O4 WO 'oo4§lltiti:or- OM ppki. notitanding it aught have been "co.. ..eistdOn .:rareotelY)* Atie-i4g.com of ttiemeitztrtekt; puocov:. we; menu iiiioit:lo ilitige Alit \ opinion; i and bn theibohlwiryitporiAti present argument, 'we are oontltmedf init.", , 4 Alidaciord-. AO tbelfairennii.'ethirt ordered it to - Op . ° ol Mea' ta thitPmnit Court: is its iailiiii "24, that tioliet. ,jdoot 'oover,Kilose- Of 114 . 14:sta thy : . tro; . calts*lty: OS 'negligence, easel' eon, • or iNulness of the temsertata z areti trthil taut" or any of them.' ' "lid, that - , _ ENE VOLUME L.iXIV---NUMBER 236. the allegations of the defendants in their pleas, or either of them, to the effect that the , fire, by which the boat wial ow oit, nicainied bythe carelessness, or the neglect, or unskillful conduct of the master and crew of the boat, is not a defence to this action.' " The doctrine ef, this , case has been folk/Wed by the Supreme Court of this State, in the American Insurance Cora; PAY vs. Insley, and by the courts of all the other States where the question has arisen: In -Ilynda-vs. Schenectady, County Insurance .:CooP3PYr. Hama Justiceiri deliveririg the opinion of the Cotirt, said : "I think 'the Judge who tried, thii cause has correctly stated the law on the 'question of negligence. The counsel , for the defendant is en tirely Mistaken in supposing that the genteel principle which will not allow a paiV,lumlself guilty of negligence, te recover for Ike loss or injury to which he has thus contributed, is appplicable loan aetion upon a policy of insurance. TEO'general doctrine on that subject is; that mere negligence, whether of the insured" or Lie agents or servants, conati trites no defence for the,iiniurera.. Ellis on Insurance, 72. , In Water' va. The Merchants' Louisville Ins. &IC) 11 Pet. 213, it was said by . /Wry J. :that the doctrine had; for a greatlength of time, pjesailed, - ,that losses pocasioned by the mere faul t . or. negligence - of the assured or his servants, unaffected by fraud or design, are within the protection of po licies. The charge in tlriti . case contains nothing More. The jury were told that mere negligence was not sufficient to de feat a reoovery; that before this ground of defence could be made available, there must be evidence 'of such a degree of negligence as would evince a corrupt design. This I un derstand to , be the ,well settled rule of law on this subject. If it were not so, policies of insurance against loss by fire would be of comparatively little value; for the cases are few in which losses by fire cannot be traced to some sort of carelessness or negligence on tlie part of the assured, oaths family or servants.. It is one of the objet-tied insurance to , protect the party Moused against meg. gence." • : • ' And in Gates vs. Madison County In surance Company, Jewett Justice, said : "Bat,another lineation arises upon the evidence offered, namely, whether a loss arising from the gross carelessness and negligence of the insured, his' servants, or others, is within this policy. There can be no doubt that one of tbe objects of insurance, against fire is to' protect Ithe insured from loss, as well against hill' own negligence as alit of his servants, and others; and, therefore, the simple fact of negligence in either, howevel great in' degree; has never been held to' be idefenpe in such policy. Thos.rule is well established, not only in the:English, butin the general .A.me, riein insurance law that in'the absence of id fraud, the . parixissafe cause of loss; only, is to - be looked to; and - the same rule now prevails in marine: luso ranee." Let these citations" suffice to show upon what grounds and how.fiivnly tablished in the law of insurance is the doctrine that where the iinmeiliatie cause of the loss is a peril expressly insured against, it is no defence that the mere negligence of the assured or his tenants; however_ l zrea; t ' degree, occasioned sucheperff;oilionOt the insured pror perry within its dominion: • One or two other positions taken by the defendant's counsel remain to be no ticed, viz: . that the lois was occasioned in part by the txus oonauct the insu red in carrying oil • of turientine on board of the boat without speeiallieense therefor, or : without the guards end pia cautions prescribed by the_ Act of Cod= grew and in navigating the boat in 'a manner different from that in. Which the' Mississippi river is cannily•ViglitedbY boats of herclass.= It is a sufficient ut-I sWer that the jarY hove forilid tio facts upon which. to base. such -a 'defence.' Tely have not found 'that the; plaintiff was carrying oil of turientine on hoard of his boat contrary to the provisions of the Ack of •Congress, or that ha vas ni vigiding his boat in a l menner different from that iii which:he MiseitisiPpi river, is usually navigated by boats of the same class. True, these ; questions were not submitted to the jury for their determi nation and why not? Because the Court wait then of die opinion, as now, that there was no sufficient evidence - to justify the jury in fi nding either of said allegations to be troxs,'or the . Court submitting them as queations orfach to the jury for their determination.: NO notice was ; given to the plaintiff, by plea ak otherwise, that any such ;defence Would be set up. No evidence give to ; show , either that the turpeWl tine'was carried without a' license; be that the boat was not provided:',v4o; chestaand - eafea as required . by LIM Aet- There is no legal _presumption that .the , plaintiff was, in this respect, violating the'. Act of ;Congress;' end before-:the feet conlillie legitimately foind .by the' jury the - defendant wan bound to give'. Immo evidence to show • it. - Thiiintotcl .vs:.iiiineo; Camp, .281; 2 1 .0 1 '0,1 1 1:',eilL Ev. Beet. 402. The evidence inw i rird... Waif' liiiq.ttlipititine was 'given idly that it unlawfully ..osneta.on,board of the boat, but that- It , improperly Ma& negligently used; and that' the - plaintiff =war eUttdscilindnet- yes: 'Ott.' -All *a - Ova:rice - We hat% in'io:• 'ird*Abir Kiiajoid blitengseetien,ilti tetki brotighti.up out of the balikof the. boat by the,orders of the swain, There iCnothiteg ,the evi* denoe tinidinglo alOw'that it was not secured - tharei - a_a; - reirdrad,by the Act e l keEkees;:er th e: Illebitiff bid no license for carrying . this as welt im the other' *Weis specified in the ,ice legal Pivis!ne . ption, as we have seen, is that had dead his duty in_ 'thee eddle.;''seel observed the ;21 7 sqiiiniziente hf the /111/: • 80 also in regard to the allegation that the boat was not navigating the Mississippi river mit ustiallYnavigktel by boats of her class. • The only evi dance tending to support this' 'allegation is that which directly tends to show that tbe Ere, by which the boat was deairoy-, ed, was occasioned by the negligence of 'the captain and crew. -It is not pre tended. that there is any other evidence to support this allegation; and it is in sisted that this is sufficient.. If thii be so, then the underwriterrivould not be liable, in any case, for a loss co casioned by the negligenpii of the ;master`and crew. Bemuse-the very same evidence which tended to show that the loss of the boat was oo casioned by the negligence of the master and crew, would also tend to show that the boat was not navikating the river, when the loss occurred, as it is usually navigated by boats of her class; and if sufficient to establish the one allegation, : it it would necessaril,eitablish *the other. And .'upon `de fe' ndant 's hypothesis, the underwriters 'not he liable for the loss of a boat in tiny case - When oc casioned by the negligence of the master and crew. -• • - The whole 'purpose and tendency of the evidence, given by the defendants, was to show that the loss of the boat was occasioned by the negligence and mis conduot of the captain and owner ' and the Conti submitted to the jury for their determination all the questions bred mately:trising thereon. Let judgment be entered in favor of the plaintiff, on the question of law re served, for the amount:found by the jury with interest to be:computed there on from the date of the verdict, on pay ment of tee verdict fee. LETTER PROS WASHINGTON. Wenner:mon,' Aug. 31,1861. • The .eocressionbt referred to by , lllr. Kassel! • in his Isac letter as to the employment of the Pastmiater.aentral. Its Mr. Phillips. whose -wifseris stressed a few days litt4o:' lir. Ras• sea see him in the poet olDoe.,whertrits was per. mitted:to take letters for Bouthersefriends, dl• ; reatedio this dam.' The city pbitmuter, Mr. '• Clephaits, makes.air ezplanatlod to 'order to re- USW, lir. Blair, Ma, ao lesson is, y L iren why a semsaionist should De permitted inside the post. ogle% and that, tea, linos the blade of Ball Itun.7•l_ _L • . . Indiana Jitinte!ifilii*bels. Advfees tettaiTO it the Wai P'spietmeut con firm the report that the glows/ Mid Oamauchas, from Whom (+Drama:eat, bare' Ale year with held their usual regents on account of previous ruct*ias, have milted Altair formes" with the §aetbent Oon:ideracy. - The: Pitudpat rendez vous of the tribal I. near. Fere Xi an it. The national Detective Petite. • ThWitationat oevectiie vitt speedily. he orgielz se andin attire operation. At its head will be placed it well known western deteetive, of national reputation - sand the sir pervision ot the force will intend over the whole country. .; A Contraband Surrenders. A contraband awned trace Bennett, boloagp . . leg to's Virginian tesiduig near Fills °hatch" ease 'yesterday to- our- ptfikets near -Manus : `o.irevou'le , splendid 'berm. Haetated that everprherein tbs : vicinity the slaves weal be. mg impressed info the ear - viceof the rebels 'and pet under arias: ' rtfessincli,' also a slave, was worms as aeoldiersCalaumeas sind he. proberted rt he meet fight, term nu _this side.: If. reports at falls Church - this's hundred : rebel faisatry and Sear hasdred , iiialry. 7be nerstuas and ttti litairehritute. Itmol ea remembered tbst tatalaited atoms - Haruki!. of Maine, New glatipShint, Mamie ebusqtir, Rhode', bland" 7.Consacticut; - Nsw Vork e ..Now Jamey, PennsylvatiMi,Delawsre and fdarytend4being : all these whose die- trims 'embrace -pins `of entry '4lO the loYel States —met at hew . .. Fort Tor din:purposcot . consaltisg together to devise lho., more att.: . taalmeseures for' the siepproisiiiir of the Afrfr. can elite trade. The ethome oidepted:6l them, will aeceseerily.sot; be :Made public'', but a it oadetatoorito be aoch,u. a "very short limb; put' a 'iotopletei - Eitingeisher upon nefarious and inhusnaw • tradle—at : : least so far as the eitipiessof oar - own count:ly are ennetirped; ; . • • ' ' - Abram& Comfort.. - ... , WO enderimod Teat True a 'melba/ of do. garters bons the Federal army are daily mos.,. log the *bay - into the 'Counties oil - Dorohester, 'haus- and Q len , - - Anies, Md.,- ' - sad ire -eividertheir war into Delaware to , . gut Or the Maryland and 'Pillow - ire Batiroadi- .1.: thereby. o enable- thee. to to_their homes. ''! These men aiiimdid by the rebels iff.P.Mary% Charles, Calvert and :Aluel'Ainridet counties, ,"_-:: bld., who Aire them, rogue!, clothes, Br.c.,, ° be- -, Aides putting them over the ,liat,:auring t h e:;; eight in emsll` boon: Thetife usaallynaken ... over In ebialllisruie of from , four -1 to -twelve' persons.. Is addition to this i l thank is a mods contruitlY cariiiinin between ilia rebels by ". cariyiog contraband rood' - over Ihit bay Viand Potomac drop into Virginia, thereby giving -1.. ' , aid and coMfort" to sus- onernyi & g00d;,,, Union man, recently from Talbot county, ter:';:` ports that fifty man landed thilii , iii bee day. ...° ' ei. Trennomtaiad tin Wen Deportations. (l Oen. Fremont, Appreciating broidlicial tin. ~ tirgrity aid abiliti;thres days . ronte requested - the editor of tbo MisilDati itrinecnd- to deny 7- and'diecourago the fairs rumors that le had - complained " f the want tiCeffleited euppo d frontiMmtherreretaryof Wall 1 4 titi• - thk conuaryi -...,.:* ,he eeknawledgei burtly Mr..-411mmontr Sn. oil* endeavors , to .stresgthest ..bim for tftli'.'" roppreeintilif the rebelbonla Miami. - , . .... Brigadier S'flestinrato ' err Ufa ifolumrtmor:' - The greylditrit will morrow ' appoint the :. tollOwiog; cfbcens Brlgroliarqunefelo of tbeL.-:. volutteer forte: ' . -., ~. t: ; knyor - L• P. ikatiam. . ..„ ~:,. '... ... Col; Aberer,onnts, noir jin-dodasead of a Brilide eider Gen. Blinks._ - , „, . 2 ' doii theitee .I:, , Blddie l liffirmW6l illoognm • - frofti tho Ili .Paritnerimoutiltanitetil • Col..Doryeo, of Pique's ,Zamtues. -;00.-vuey, - .. f . ~ ' 1.-Capi.- fdeadaiat- the Tat 44§gical Ragi. * . ;•, - z laarCorpa:l , ..::.: •: . :- . .,.1.. - -; ,- It;:ai . z„ . rEtr - 7., , 4 1 1:,,1t5u1in5i of Iltthohvoind dem Xenon -Norhal, eupoutuid Metelsot)M. Ighipt _Quer- nle;*itif riniCiii Captain: ,/ TheLfoliner li an. -' - cipead to`the int of Gaii.i.Viob nii& the nitii , ter'sdltiatfif °Oil' Iflckii. - 1- ' 7 . -.- ' Solar 11.- -, lfeethottemPicillindiulant 'of ii . . - midi ot .16 ia Declared= odiminpihuleticro, le appointed along' autlQeakternoldfirit ; !felnpht.dlnxa js afnraVfeipf Truntsr/to :- - 11 e Itiitaame taaJakataimpamit 4tii: that illarpriardlarratikrbillgt zaptaiu, I 1 11 ' 191 9 6 1w:4 .tilift.l l l4FFofaiWbuthoonnt 110.4.. .oe7 deJoltiPuMPacAlAsfell bf. Vtit'Ta it 1 r.. 91.. obsiopi Tbt prisosenti-:. Iduoiliii ukro' hat i Violdasetti - ; • Voided , * tinflolliedifieV int tcaVire,. psis. Tbe Reed:bug 'die %lOUS eoll•' trahurea-a seeped-km -•King George Coin -: ...R.0.-IfYitiq4 l *, oho: ear thaiellat Rebels ild• mit that eight...at the draboahe,esallebSitedoer [ dirise , b Damien it Mithlastituroido , killed ha 'tlah'areirateriseity Vert dielehiiiii'isailurre giber , At Mathias: Phint; and'ifila drill:00e ore suf.: toting for Lech of prorlidone,pl .:_r , .:; . _ :, :. A -chin time since a scotrkiedirbbacon was smuggled:Trout-31arylimad ~Thorr also lack . ittlicary ciluipmenti, :11titroVa both slave and free;*are torrid inter OM Confederate Army - .- dome join • •mahistaVpi't Tbi'-'bratini on , both - aides aides cfC she -Porpoise om . 4ml' itirdl for our illfomit sod3olfteiblellriil leFftfiff ff. ; " Arrest seflforuelstOsselmoneellenur . . Cot. fartar,„laa.f rurppe st ..l4-anatal., au scan inthe , arrest , of .Ailipkiliordl'f i .- About;. AnYerinsis are mirk( doily 4. 0 iii who pre. tends to Do dell and:timidrOfali redinitTypiacal: ha dm eumal.hosai,,whoin.lictdosnt a geld,' oared spy, and auto elhOLutOold faertputirn in pelsono. f ____ 7 --." ' . .7_ - . _'' Ifti - Kii - e4logite t , 7.-. -,_ Tim - wailmpartirourt•ft Irmo 011111111 tor bornie - to'paitlas in Kiiitnef t sl4 ll2 o llll ": toittf,49omOritodDilittrunisamais . aepply is exueited;noisrlditlutityco pr.. chase vrill be green. ~.. . . IMgMMM EMEM
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