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.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