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Vol. II.]

GERMANIA INSURANCE COMPANY v. SHERLOCK.

[No. 7.

only inquiry we need make, perils of the river, including collision, were not insured against by this policy, and if not excepted, they were at least expressly excluded, and that, too, by a distinct and positive act of the parties.

The court mistook the law in charging that if " this boat was destroyed by fire, it is not a defence that the fire was caused remotely or proximately by the collision."

The term “ destroyed by fire” is clearly used here in the sense of burned up.

In a legal sense, and upon this ground, our first defence was predicated. We say that it was not destroyed by fire, but by the collision.

But the whole expression, taken together, can leave no doubt upon the mind of any one, as it certainly did not upon the mind of the jury, that if the boat burned, they were not permitted to inquire whether or not the collision caused the burning

And this brings us to the often used, and in too many instances wrongly applied maxim, “ Injura non remota causa sed proxima spectatur.

The sound judicial construction of the maxim, and the one that is being adopted by our ablest courts and judges, is that the proximate cause is the causa sine qua non. 1 Phillips on Insurance, sec. 1132; Brady v. Northwestern Ins. Co. 11 Mich. 425; Case v. Hartford Ins. Co. 13 Ill. 676 (if the last in the train of circumstances resulting in a loss is the only one that can be considered, is it not clear that in the case last cited the removal of the goods and not the fire was the proximate cause of the loss ?); Roe f Kercheval v. The Columbus Ins. Co. 17 Mo. 301 ; Montgomery, fc. v. Fireman's Ins. Co. 16 B. Mon. 427 (and see 16 B. Mon. 427, as to the true method of construing a policy of insurance); Strong et al. v. Sun Mutual Ins. Co. 31 N. Y. 103 ; Waters v. The Merchants' Louisville Ins. Co. 11 Pet. 213; Peters v. The Warren Ins. Co. 14 Pet. 99; General Mutual Ins. Co. v. Sherwood, 14 How. 364; Insurance Company v. Tweed, 7 Wal. 44; McCargo v. New Orleans Ins. Co. 10 Rob. (La.) 202; Magoun v. New England Marine Ins. Co. 1 Story, 157 ; Potter v. Ocean Ins. Co. 3 Sumn. 27 ; Montoyu v. Lon. Ass. Co. 6 Exch. 450; Lawrence v. Aberdein, 7 E. C. L. 38; Gabay v. Lloyd, 10 E. C. L. 229; Thompson v. Hopper, 88 E. C. L. 937; Ionides v. The U. M. Ins.

Co. 108 E. C. L. 259. • II. The pilots of these boats were guilty of criminal misconduct, and these underwriters are not liable, under their policy, for any of the consequences thereof.

This criminal misconduct of the pilots is barratry.

For the definition of barratry, see Bouvier's Law Dictionary ; Phillips on Ins. secs. 1062, 1067, 1073; Patapsco Ins. Co. v. Coulter, 3 Pet. 230; Earle v. Rowecroft, 8 East, 126.

By the express terms of the Act of Congress, 1852, simple neglect to comply with its provisions, resulting in loss, is a fraud upon the owners, and is barratry. 1 Phillips on Ins. sec. 1051; Insurance Company v. Marsh, 41 Penn. St. 394 ; N. Y. f Liv. U. S. M. S. Co. v. Rumbali, 21 How. 372.

W. H. Gholson, for plaintiff in error. In this case, in the written part of the policy, it is expressly stated that the insurance is " against the risk

(No. 7.

Vol. II.)

GERMANIA INSURANCE COMPANY v. SHERLOCK.

of fire only,” and no erasure is made in the printed part. If, as is admitted, the perils of the river are not covered, it is by virtue of the express statement in the written part, and the rule that such a statement controls the printed part. It is an express exception of perils of river, shown by the intent of the parties in the writing itself. 1 Parsons on Insurance, 65, 614.

Collision is not excepted in the same clause or in the same terms as barratry; but the intent to except it is shown, and that intent, when ascertained, must have the same effect, whatever the language in which it is expressed.

The law has prescribed no form of words to except a risk from a marine policy. It is therefore a mere question of construction. Williams v. Burrell, 50 E.C. L. 402; Masury v. Southworth, 9 Ohio St. 340.

In the case of concurrent causes, to one of which it is necessary to attribute the loss, it can make no difference whether one of the causes is excepted, or simply not insured against. 1 Parsons on Insurance, 619.

What we desired to have put to the jury was, whether a peril not insured against (collision) did not make a causa causans efficacious in the production of the mischief ?

To determine whether it (collision) did constitute such causa causans, we asked the court to apply the well established rules or tests, copied from high authority on the subject, in the fourth and fifth charges. i Phillips on Insurance, secs. 1097, 1132, 1137.

If there was an insurance against fire, and no insurance against collision, it can make no difference whether the risk of collision was expressly excepted or simply not covered. Waters v. The MerchantsIns. Co. 11 Pet. 213.

It will be seen from the facts of this case in 11 Peters, particularly as shown by the argument, there was no express exception of barratry.

On the question what is the predominating, efficient, real cause of the loss, we cite the following authorities. They sustain fully the idea contained in the fifth charge asked by defendant, that nearness of time is not the test, but the efficient agency is the test. The true question is, what caused the loss, not what instrument was employed. The knife used by the assassin, in one sense, causes death, but the assassin himself is the real cause. The fire may destroy the boat, but if the fire was the direct, necessary, inevitable result of the collision, — if without the collision there would have been no fire, - then, according to all the authorities, the collision, not the fire, is the cause of the loss. Waters v. Louisville Ins. Co. 11 Peters, 213; Thompson v. Hopper, 88 Eng. C. L. 447 ; Carballero v. Home Mutual Ins. Co. 15 Louisiana Ann. 217; Roe f Kercheval v. Col. Ins. Co. 17 Mo. 301 ; Brady v. Northwestern Ins. Co. 11 Mich. 425 ; Ionides v. Universal Ins. Co. 108 Eng. C. L. 259; Cass v. Hartford Ins. Co. 13 Illinois, 676; 681 ; 16 B. Mon. 427, 440 ; Cargo v. New Orleans Ins. Co. 10 Rob. (La.) 212; Tweed v. Ins. Co. 7 Wallace, 44.

The decision in the case of Thompson v. Hopper, 6 E. & B. (88 E. C. L.) 937, 947, was reversed — E., B. & E. (96 É. C. L.) 1038, 1035; but the grounds of reversal in no way affect the purpose for which we cite it, which is to show the opinion of Lord Campbell as to the proper application, in general, of the rule “Causa proxima non remota spectatur," and

Vol. II.]

GERMANIA INSURANCE COMPANY v. SHERLOCK.

[No. 7.

withe hold. It is causes, or dure general operas

his approbation of the decision in Waters v. Louisville Ins. Co. and his construction of that decision.

A policy which covers “ fire only " is the same in effect in law, in common sense, and in common parlance, as a policy against every loss, except all losses which are caused by any other peril than “ fire only.”

As to what constitutes “criminal misconduct," what is discretion, see Citizens' Ins. Co. v. Marsh, 41 Penn. St. 386 ; Bentley v. Coyne, 4 Wallace, 509; 3 Pet. 222; 2 Cush. 500, 511.

Lincoln, Smith & Warnock, Hoadly, Jackson of Johnson, and S. f S. R. Matthews, for defendants in error. I. The insurance was one.covering the damage done to said steamboat by FIRES. But it has certain exceptions to this liability expressly provided. For all damage caused by or arising from barratry, civil commotion, war, or piracy, or during the time said vessel shall be seized and taken possession of or detained by the United States government, or by the bursting of the boilers, collapsing of the flues, explosion of gunpowder, or from any loss caused by the use of an open light in the hold. It is evident that loss by fire may arise from, or be occasioned by, the above causes, or during such times ; and such losses are expressly excluded from the otherwise general operation of the policy covering damage by fire. This contract in express terms is to make good such loss or damage as may occur to the boat by fire, that being a well defined and distinct peril, differing in its nature from perils of the river, and from collision, which is one of the perils of the river. The defendant, by the express terms of the agreement, is bound to make good such loss, unless the same is excepted from the operation of the general terms of the policy. And certain fires, which can be traced to specific causes, being thus expressly excepted, the rule is that no other exception can be ingrafted upon the policy and taken from under its operation.

The rule that governs cases of this kind is expressed in the cases of The Columbia Ins. Co. v. Lawrence, 10 Pet. 517; Waters v. Mer. Lou. Ins. Co. 11 Pet. 225; City Fire Ins. Co. v. Corlies, 21 Wend. 371; Millaudon v. The Orleans Ins. Co. 4 La. Ann. 15; St. John v. American Mu. F. & M. Ins. Co. 1 Kern. 518; Hale v. The Wash. Ins. Co. 2 Story, 184; Broom's Legal Maxims, 278; The Western Ins. Co. v. Cropper, 32 Penn. St. 356.

The view here taken is strengthened by another class of authorities. They are to the effect that the indemnity given by a policy of insurance shall be as broad as the language of the policy, upon any fair interpretation of it, will admit. 1 Ďuer on Ins. sec. 5, Lect. II. part 1, p. 161 ; Snapp of Hanger v. The Mer.f Man. Ins. Co. 8 Ohio St. 461; Moadinger v. M. F. Ins. Co. 2 Hall, 493; Stacy v. The Franklin Ins. Co. 2 W. & S. 545.

The court will bear in mind that it is the written part of this policy that insures this steamer against loss or damage by fires; and these written terms are not to be set aside by equivocal, printed conditions found in the general form, but the former do in fact set aside the latter whenever there is any inconsistency. Duer on Ins. 165, sec. 11, Lect. II. 1 ; Angell on Ins. 11, sec. 15; Hayward v. Liv. of Lon. Ins. Co. 40 N. Y. 457 ; Harper v. The N. Y. C. Ins. Co. 22 N. Y. (3 Keyes) 443, 444; Pindar v. The Kings Co. Ins. Co. 36 N. Y. 648; Robertson et al. v. French, 4 East, 136.

ms, 278 ; Paleva The Walt. John V. Ad. 371; Milla Ing. Co.

that insures will bear in min) Stacy v. T'he Frankio st. 400;t 1, p. 1619

Vol. II.]

(No. 7.

GERMANIA INSURANCE COMPANY v. SHERLOCK.

Knight v.'Camonic 6; Westername: Armitage, 2 B. Bul

have said no damainst perifminable many one their approacy

shareharge to the eastept for this zulerminable worfenbound for the rned up,

The contract of insurance being the language of the insurer, must be taken most strongly against the underwriter. Where there is any ground for fair doubt, this rule applies against the underwriter. Blackett v. Assurance Co. 2 Cromp. & J. 251 ; Snapp of Hanger v. Mer. of Man. Ins. Co. 8 Ohio St. 461, 462; Donnell v. The Col. Ins. Co. 2 Sumn. 381 ; Bullen v. Denning, 5 B. & C. 847; Earl of Cardigan v. Armitage, 2 B. & C. 207 ; 1 Duer on Ins. 161, 162, sec. 6; Western Ins. Co. v. Cropper et al. 32 Penn. 355 ; Knight v. Cambridge, 1 Strange, 581.

The maxim, Causa proxima non remota spectatur, is specially applicable to insurance contracts and to this case.

The maxim above quoted becomes especially necessary in insurance contracts in order that there may be a plain and intelligible rule by which the liability of the underwriters to the assured, and among themselves, can be ascertained. Suppose there had been another set of policies covering these boats against the perils of the river. What would that class of underwriters have said if sued for this loss? Would they not have replied, that the collision did no damage to the boat, but that she was burned up, and that the underwriters against peril by fire were bound for the loss ? "

But for this maxim, what an interminable confusion and opportunity for litigation! Except for this rule, how could any one adjust the cases, and charge to the assured and to each set of underwriters their appropriate shares of the loss ? Cases of the kind are not uncommon. See Stacy v. Frank. Ins. Co. 2 W. & S. 506; Gerodt v. Del. M. Ins. Co. 31 Mo. 596 ; Madison Ins. Co. v. Fellows, Disney, 228; The A88. F. Ins. Co. v. Assum, 5 Md. 168; Blake v. Ex. M. Ins. Co. 12 Gray, 273; How. Ins. Co. v. Scribner, 5 Hill, 301.

So complicated has the modern contract of insurance become, that it is now among the most difficult of practical affairs to adjust such losses satisfactorily; and only by strict compliance with this maxim in many of the cases can any adjustment be made.

And this maxim in fact is so applied to avoid such difficulties, and such application is established by the courts. Perrin's Adm'r v. Pro. Ins. Co. 11 Ohio, 171 ; 2 Arnould on Ins. 766 ; Dabney v. New Eng. M. M. Ins. Co. 14 Allen, 309; Ionides v. Uni. Mar. Ins. Co. 14 C. B. 284; Dixon v. Sadler, 5 Mees. & Wels. 414; Thompson v. Hopper, 88 E. C. L. 937; Livie v. Janson, 12 East, 653; 11 Johns. 27 ; Green et al. v. Elmslie, Peake's N. P. Cas. 212; Tatham v. Hodgson, 6 Term, 659; Powell v. Gudgeon, 5 Mau. & Sel. 436; Norwich & N. Y. Trans. Co. v. Western Mass. Ins. Co. 34 Conn. 561; U. F. & M. Ins. Co. v. Foote, 22 Ohio St. 350; Boatman's Ins. Co. v. Parker, 23 Ohio St. 95; Maryland Fire Ins. Co. v. Whiteford.

The collision was not the immediate and proximate cause of the fire. It was two steps behind, and we look not to nearness in time, but to the order of events, though so near one another that we are unable to distinguish between them; and in reference to the rapidity with which one link in the chain follows another. See Dabney v. New Eng. M. M. Ins. Co. 14 Allen, 309; Columbia Ins. Co. v. Lawrence, 10 Pet. 517; Dyer v. Piscataqua F. & M. Ins. Co. 53 Maine, 120.

That the law does not follow back from one cause or sequence to another, in cases of insurance, but rests upon the peril which appears to have

Vol. II.)

GERMANIA INSURANCE COMPANY ». SHERLOCK.

[No. 8.

injured or destroyed the property, is well settled by the following author, ities : Matthews v. The How. Ins. Co. 1 Kern. 16; Gen. M. Ins. Co. v. Sherwood, 14 How. 366; The Ionides v. U. M. Ins. Co. 14 C. B. 295 ; Gates v. The Mad. Co. Ins. Co. 1 Seld. 478; Columbia Ins. Co. v. Lawrence, 10 Pet. 517, 518; City F. Ins. Co. v. Corlies, 21 Wend. 371; St. John v. The Am. Mu. Ins. Co. 1 Kern. 523; Sadler v. Dixon, 8 Mees. & Wels. 899; Redman v. Wilson, 14 Mees. & Wels. 482; Livie v. Janson, 12 East, 648, 653.

The courts look at the peril assumed, and whenever they find that the property has suffered from such peril, they do not go to the cause that produced the peril. This is well expressed in the above cases.

The proximate cause is the last link, the last sequence or final result, which is the destruction of the vessel. The Ionides v. U. M. Ins. Co. 14 C. B. (Scott) N. S. 284, 286, 295; Dabney v. New Eng. M. M. Ins. Co. 14 Allen, 309; Marble v. The City of Worcester, 4 Gray, 398.

In insurance law the simple fact that the steamer was destroyed by fire not originating in the fraud of the plaintiffs, or their employés, and not coming within any of the exceptions found in the policy, is all we have to look to, all we have to prove. It matters not what caused the fire, or how immediately the fire followed the cause, there being no exception excluding it, the loss is one for which the plaintiffs may recover

The cases cited by plaintiff in error do not sustain their position, but when carefully examined strengthen our view.

The case of Thompson v. Hopper, 88 C. L. 171, cited and greatly relied on by plaintiff in error, is not the law of this country nor of England, as will be seen by the following authorities : Perrin's Adm'r v. The Pro. Ins. Co. 11 Ohio, 147; Johnson v. B. M. F. Ins. Co. 4 Allen, 390; Chandler v. Wor. M. F. Ins. Co. 3 Cush. 328; Huckins v. The Peo. M. F. Ins. Co. 11 Fost. 247 ; Columbia Ins. Co. v. Lawrence, 10 Pet. 517; Shaw v. Robberds, 6 Ad. & El. 83, 84; Brown v. -Kings Co. F. Ins. Co. 31 How. Prac. 512; Gates v. Mad. Co. M. Ins. Co. 1 Seld. 478; Hynds v. The Schen. Co. M. Ins. Co. 16 Barb. 127 ; St. John v. The Am. M. F. & M. Ins. Co. 1 Duer, 381; Catlin v. The Springfield F. Ins. Co. 1 Sumn. 441; Water: v. The Louis. Mer. Ins. Co. 11 Pet. 220; Thompson v. Hopper, 1 El., Bl. & El. 1051.

In some of these cases it was held that gross neglect of the assured himself, not amounting to fraud, was no defence.

The following cases — St. John v. Amer. M. F. & M. Ins. Co. 1 Kern. 518; Roe et al. v. The Columbus Ins. Co. 17 Mo. 304; Montgomery v. Firemen': Ins. Co. 16 B. Mon. 442 ; Strong v. The Sun M. Ins. Co. 31 N. Y. 113; Stanley v. The West. Ins. Co. 3 Exch. 71; Insurance Co. v. Tweed, 7 Wal. 44 – cited by plaintiff in error, contain excepting clauses, and the decision in each case rests upon the force of the exception, and cannot avail the plaintiff here, who has no exception to go on. 12 Wal. 199.

II. There is no error upon the subject of barratry, to the prejudice of the plaintiff in error.

For a definition of barratry, see Webster; Worcester ;.2 Arn. on Ins. 2d ed. 821, 825; Lawton v. Sun M. Ins. Co. 2 Cush. 511; Earle v. Rowcroft, 8 East, 133; 1 Starkie, 191; Parsons on Ins. 550; Marcardier v. VOL. II.

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