Tilton v. Hamilton Fire Insurance

The judge, upon the trial, charged the jury, that, if they were satisfied that the plaintiff had sustained the loss that was claimed, he was entitled to recover, as well for the goods abstracted or stolen, as for those, if any, destroyed by fire. To this part of the charge, the counsel for the defendant excepted; and whether this exception is well taken is the single question that we are now required to determine. In words less technical: Whether, as fire is the only risk mentioned in the policy, the defendants are answerable for the loss of goods that, during the course of, or subsequent to, their removal from the building on fire, and before any part of them had been restored to the possession of the assured, had been abstracted or stolen?

The determination of this question evidently depends upon the true interpretation and just application of the established maxim, that, in determining the character of a loss for which an indemnity is claimed under a contract of insurance, its proximate cause is alone to be regarded; so that, when it appears that this proximate cause was a peril not covered by the policy, the insurers are discharged from all liability. The well-known maxim of Lord Bacon, “In jure causa proxima, non remota, spectatur,” it is admitted, furnishes, in all cases, the controlling rule. Strictly speaking, the proximate cause is that which immediately precedes and directly occasions a loss; and hence, if the maxim' is to be understood in this limited sense, it is plain that the defend

It is not pretended, however, that the maxim, in its application to the contract of insurance, has ever been understood, or, without an entire disregard of prior decisions, can now be understood, in this strict and limited sense—a sense that, if adopted, would confine the liability of insurers to losses produced solely by the direct agency of a peril insured against, upon the property insured. It is not denied that, in numerous cases, where the property has not been at all injured or affected by direct action of the peril, the insurers have been held responsible for a subsequent loss, even when its immediate cause has been an act or event not mentioned in the policy. Nor is it denied that, in all such cases, the law attributes the loss to the original peril, as its proximate cause. Thus, to select a frequent and familiar instance, where goods insured only against fire, and contained in a building actually on fire, are neither touched by the flames, nor affected by the heat, but are saturated by the water used to extinguish the fire, and are thereby damaged or rendered worthless, it has never been doubted that the insurers are bound by their contract to satisfy the loss; nor that it is recoverable as a loss occasioned by fire, although the voluntary application of water was, in reality, its sole immediate cause. And this single example is sufficient to prove that the maxim, “ causa próxima • non remata spectatoris not to be strictly and literally construed, 1 but, by its received interpretation, embraces consequential orí incidental losses, as well as those which are direct and immediate. I To enable us, therefore, to answer the novel question now before us, it will be necessary to define the consequential losses that the maxim by which we must be governed has been held to embrace, and carefully to distinguish them from those, the recovery of which it has been held to preclude. We must ascertain, if possible, the principle or grounds upon which each class of cases may justly be said to rest, that we may determine to which class that which is before us, by a parity of reasoning, ought to be referred; and this we shall now endeavor to do, by referring to a few of the cases belonging to each class.

The modern case of Montoya v. The London Assurance Company, supplies an excellent illustration. (6 Exchq. Rep. 451, S. C. 4 E. Law and Eq. R. 500.)

The insurance was on tobacco, forming part of a cargo consisting of hides and tobacco. The vessel, in stress of weather, shipped a quantity of sea water,- by which the hides, upon the top of which the. packages of tobacco . were. -stowed, were thoroughly wetted; but the tobacco was never in contact with the water, and sustained no damage directly, from that cause. The hides, however, in consequence of the wet, became putrid, and emitted a fetid odor, which pervading , the tobacco and destroying its flavor, rendered it unmerchantable, and the Court of Exchequer held that the defendants were bound to . satisfy the loss, as a loss from- the; perils of the sea. Here the effluvium arising from the hides, a risk not mentioned in the policy, was the immediate cause of the damage to the tobacco, but as this was a necessary consequence of the damaged condition of the hides, and, therefore, of the perils of the sea, the entire loss yas justly attributed to those perils as its proximate cause.

But although insurers, by force of their contract,-are'liable, for every loss which is a necessary result of a specified peril, it is certain that they are not liable for every loss that may justly be deemed a consequence of such a peril; that is, for every loss that, but for the happening of the peril, would not have occurred. And on the other hand, it is equally certain that their liability is not confined to consequential losses, that may properly be deemed necessary and inevitable.

In the case that I shall first cite, the claim of the assured, for a consequential loss was rejected upon the ground that the loss, although consequential, could not justly.be attributed to the peril which preceded, as its proximate cause.

In the case of Rice v. Homer (12 Massachusetts Rep. 230), this decision was followed by the Supreme Court of Massachusetts, and the loss of a vessel which was captured, after being damaged by the perils of the sea, was imputed to the capture as its proximate cause; and as, by the terms of the policy, the insurers were exempted from a loss by capture, it was held that the assured were not entitled to recover.

In an early case in our own Supreme Court (Patrick v. Com. Insurance Co., 11 Johnson Rep. 14 ), the insurance was on the cargo of the ship Thomas Jefferson, and the policy contained a clause, exempting the insurers from “ any risk in port but sea-risk.” The ship, with the cargo insured on board, was in the bay of Cadiz, which was then besieged by the French, and in a violent storm she broke from her moorings, and was driven on shore; and after remaining in that situation for some days, some French soldiers came on board and destroyed by fire, both vessel and cargo. The Judge, upon the trial, submitted to the jury the question whether the loss was occasioned by sea risk, and the jury found a verdict for the plaintiff for a total loss. The Court,

The insurance in the case of Hillier v. The Alleghany County Mutual Insurance Company, in the Supreme Court of Pennsylvania (3 Barr. Rep. 470), was upon goods against fire, and the loss claimed was for the damage which the goods had suffered in the course of their removal from the building in which they were stored. This building was not on fire, but was very near to another which the flames had seized, and the removal of the goods was judged to be necessary to their preservation. The Court held that as the fire did not reach the building in which the goods were contained, and the goods, but for their unnecessary removal, would not have been injured, the insurers were not responsible for a loss which was occasioned merely by an apprehension of the peril insured against, and not by the peril itself.

My observation upon the cases that have been cited, is: that it cannot be denied that in each of them the loss for which an indemnity was claimed, was, in one sense, a consequence of the peril insured itgainst, since in each it was certain that but for the happening of the peril—the sea peril in the first case, the fire in the last—no loss, or a loss only partial, would have occurred; but as in each case the property insured would have been saved, in whole, or in part, but for the happening of a subsequent event of risk, this subsequent risk, as it was the only efficient, was properly held to be the proximate cause of the loss, and as it was not covered by the terms of the policy, the insurers were, necessarily, discharged from its payment. In each case, the peril insured against was merely the occasion, and not in any legal sense the cause of loss.

From these, therefore, and many other cases in which th,e

When this necessary condition of the liability of the insurers is proved to have existed, the consequential losses for which they have been held to be answerable, may be divided into two classes; and if the loss now claimed can with propriety be referred to either of these classes, the plaintiff will be entitled to our judgment; otherwise, the verdict in his favor must be set aside and a new trial be granted.

First: The insurer must satisfy every loss which is shown to have been, although not a necessary, a natural consequence of the peril insured against; and by natural is evidently meant a usual and probable consequence, and such, therefore, as it is reasonable to believe was in the contemplation of the parties when the insurance was effected. Hence, the insurers are bound to indemnify the assured against every loss that may be expected to follow from the means usually employed to avert or diminish the peril, and save the property insured from the destruction, in which it would otherwise be involved; and it can hardly be said that their liability for consequential losses that may with certainty be referred to this class, has ever been doubted or denied.

The examples that most readily occur, are, under a marine policy, jettison of goods, or the cutting away of a mast during a storm; and, under a fire, the damage to the goods from water, and the injuries which they suffer from haste and negligence in the course of their removal from a building actually on fire.

The second class of consequential losses for which the insurers are undoubtedly liable, as referable to the peril insured against as their proximate cause, embraces the cases in which the property insured is extricated from the peril that otherwise would have led to its destruction, by means that could not have been anticipated by the parties, but by which it is taken from and

The case of Brondrett v. Hentigg (1 Holt N. P. Rep. 149, 2 Arnould on Insu. 1005) was cited by the counsel for the plaintiff, as an example of this class of consequential losses. The vessel containing the goods was wrecked on the coast of the Isle of France, and the goods were plundered by the natives on shore, and Sir Vicary Gibbs held, that the loss was a consequence of the wreck, and, therefore, recoverable as a loss by the perils of the sea. He said that no abandonment was necessary, since the goods which were saved from the wreck, though got on shore,, never came again into the hands of the owners, As to them, therefore, the loss was total.

This, although a Nisi Prius decision, is cited with approbation by the text writers, but the cases to which I shall next refer were decided by the Court in term, and not only carry with them a greater weight of authority, but are more closely applicable to the question before us,

The first is Hahn v. Corbett, (2 Bingham Rep. 205.) The loss claimed was upon goods insured on a voyage from London to Maracaibo, which, by a clause in the policy, were warranted “ free from capture and seizure.” The ship containing the goods, when she had nearly reached her port of destination, was driven in a storm upon a sandbank, and totally disabled, and while thus situated, the goods that otherwise would have perished from the peril in which they were involved, were seized and carried on shore by Spanish Boyalists, who had shortly before recovered the possession of the town and port of Maracaibo. The assured, notwithstanding the warranty in the policy against seizure, claimed that they were entitled to recover a total loss, upon the ground that the seizure, although the immediate cause of the loss, was itself a consequence of the stranding and wreck of theyessel, and that the loss ought, therefore, to be attributed to the pefilg.of the sea as its proximate cause. The Court sustained the claim oí the assured, and held that the loss was properly described in the declaration as a loss by the perils of the sea, since it was certain that those perils were its main conducing cause. It was by their agency (it was said) that the ship was reduped to a wreck, and it

The most recent case that I have found was decided by the present Court of Queen’s Bench, and in its material circumstances, it not only bears a close analogy to the, present, but furnishes a satisfactory answer to an argument that was much insisted on by one of the learned counsel for the defendants, namely, that the goods upon which the loss is claimed, Were not only saved from the peril insured against, but in judgment of law never ceased to be in the possession of the plaintiff.

Dean and another v. Hornby (23 L. Journ. R. N. S. 129; 24 Law and Eq. Rep. 85), is the case to which I refer. The insurance was a time policy upon a ship which, during the continuance of the risk, was seized by pirates in the straits of Magellan, but was recaptured by an English ship of war, and taken to Valparaiso. At Valparaiso, a prize master and crew were put on board, and the ship was sent to England for adjudication in the Court of Admiralty. It was while the ship was in the prosecution of this voyage that the plaintiffs abandoned to the underwriters, and it was agreed that their right to recover a total loss was to be determined by the facts that existed at the time of the abandonment. It is needless, therefore, to take any notice of those that subsequently occurred.

.....It.was insisted, on the part of the defendants, that there was no total loss w^yu notice of abandonment was given. That 'although there wSt> constructive total loss when the ship was seized by the pirates, the property was not changed by the seizure, and, upon the recapture, remained in the owners, and that the recaptors, although they had a lien to the extent of the salvage to which they were entitled, yet, subject to that lien, held

The principle of this decision evidently is, “that when circumstances, that by their continuance, would create a total loss, have once existed, the loss continues total, although those circumstances may have wholly changed, so long as the property is not beneficially restored to the possession of the assured.

I have already said, that although the loss now claimed is consequential, yet if it fall within either of the classes that have now been stated and explained, it is recoverable under the policy, as a loss by fire, and that it falls within both classes, is the conclusion to which we have all of 'us come, with the exception of my brother Hoffman. We think that this conclusion is fully justified by the decisions to which I have referred, and which we are not aware are contradicted or shaken by any other authorities.

It cannot be denied, that the facts which I have stated to be the necessary condition of the liability of insurers for consequential losses, other than such as are inevitable, were in this case proved to exist. The goods were removed from a building actually on fire, and which was destroyed by the fire; had they remained, their destruction was certain. Under these circumstances we think the loss as claimed was a natural consequence of the peril insured against. When the doors of a warehouse or store on fire, are broken or thrown open, in order that the goods within, by their removal, may be saved from the peril, a loss of a portion of them by plunder we cannot but think is just as cer? tainly a natural consequence of the attempt to preserve them, as the damage which they suffer from the negligence or recklessness

It was admitted by one of the learned counsel of the defendants, that as petty losses by theft not unfrequently happen, it might not be .unreasonable to hold that, for such the insurers are liable, as a natural consequence of the peril insured against; but he contended that, as a loss by theft of the magnitude of that which is now claimed, very rarely occurs, it would be unjust to hold that the defendants ever meant to assume the risk, since it cannot be thought that such a loss was in the contemplation of the parties when they made the contract.

The argument is plausible, but it implies a distinction for which there is no warrant or precedent, and to which we cannot assent. The only question is, whether a loss by theft is from its nature a consequential loss, for which the insurers are liable, and if this be admitted or proved, their obligation to satisfy the loss, when not exceeding the sum insured, cannot be varied by its amount.

If all the costly furniture of a dwelling-house were defaced and broken by a disorderly crowd volunteering their aid to rescue it from a fire, we cannot believe that the unusual amount of the loss would be held to exonerate the insurers from its payment. And we see no reason to doubt that a loss by theft, if covered by the policy at all, stands upon the same ground.

But were we prepared to say, that, if the loss now claimed cannot be regarded as a natural consequence of the peril, and is not recoverable upon that ground, it is still certain that the goods

Wb think that ¡these cases were rightly decided, and, although varying in circumstances, in principle are not to be distinguished from the present.

It is true that a valid distinction has been supposed to exist. It has been said, that in each of those cases there was an actual total loss by the perils of the sea, that never ceased to exist, and that its continued existence was in each case the ground of the decision; while in the case before us. there was no such loss of the stolen goods before their removal.

But the supposition upon which this argument proceeds, it appears to us, involves- a mistake, both of the law and the facts. In neither of the cases referred to was the original loss that is spoken of actually total. It was so only by construction of law. The loss of goods on board a shipwrecked vessel, so long as they subsist in specie, is not actually total. The certainty of their destruction by the perils of the sea, if they remain in that situation, it is true, gives tQ the assured a right to abandon; but, ais Mr. Phillips has justly observed, ( 1 Phillips, 649 ), this is a right that the assured is not bound to exercise, and it is only by its exercise before the goods are rescued from the peril and restored to his possession that the loss is rendered total. - If the goods are landed, and come again into his possession, or that of his agents, and, at a reasonable expense, may be transported to their port of destination, the right to abandon and claim a total loss ,is wholly gone, and a partial loss only is recoverable. It seems to us manifest, therefore, that the true grounds of the decision in Hahn v. Corbett (the case that bears the nearest resemblance to the present) were exactly those that have been stated—the cer?' tainty that the cargo of the stranded vessel would have been destroyed by the perils of the sea-, had it not been seized by the Spanish Royalists, and the fact that after the seizure it never came again into the possession of the assured. So here, it is cer?

There is no ground for the allegation that the goods lost were in the possession of the plaintiff when the loss happened. They were taken from his possession by the persons who removed them, and those persons were in no sense his agents, or subject in any respect to his direction or control. Neither he nor any person acting by his authority was present at the fire. The case, moreover, expressly states that the goods saved were taken possession of by an agent of the insurers, who stored them in a building of which he kept the key; and that this key was not delivered to the plaintiff until the next morning. Until then the goods saved were not restored to his possession. Those that were stolen were at no time after their removal in his possession. The property remained in him, but the possession was gone. (Dean v. Hornby, supra.)

The result of this discussion is, that, in our opinion, the jury were rightly instructed upon the trial, and that the plaintiff is entitled to judgment upon the verdict which they rendered, and such is our decision.

An important case was cited upon the argument, (Levy v. Baillie and others, 7 Bingham, Rep. 349) that hitherto I have omitted to notice; and I refer to it now, not as a positive decision, (which it is not), but as evidence satisfactory, if not conclusive, that in England consequential losses of the character of that which is now claimed, are deemed to be recoverable under a policy in which fire is the only risk insured against, and are treated as losses which in judgment of law are occasioned by fire. In this case, nearly the whole loss that was claimed was aheged to have resulted from the plunder of the goods insured, by the crowd assembled at the fire. It was denied by the defendants that any such loss had occurred, and the fact was very doubtful upon the evidence; but it was not denied that, if the

Finally. It is certainly not a matter of regret, that a careful examination of the authorities has led us to the conclusion that the defendants are responsible, as insurers against fire, for the loss that is claimed. It seems to me that a denial of their liability for such a loss is most unwise; and I am persuaded that it is for the interest alike of the public, of the assured, and of the insurance companies themselves, that the defence should be overruled.

The first, and very important question is, as. to the liability of the Company for goods assumed to have been stolen during the fire.

The question is thus presented: The judge at the trial, after commenting apon the leading points of the testimony, observed, that the statements of the witnesses could only be reconciled upon the supposition that a portion of the goods were abstracted during the fire. That it was in his opinion a serious and a doubtful question, whether insurers, insuring against fire alone, are bound to make good any loss arising from stealing the goods by persons at the fire. But for the purpose of the trial, he should charge that it was immaterial, whether the goods were actually burned, or were abstracted or stolen by persons' at the fire.

The counsel for the defendants excepted to that part of the charge in which the jury were told that the defendants were liable for goods stolen at the fire. The jury found a verdict for the plaintiffs, which was directed to be entered, subject to the opinion of the court at general term, as to the. liability of the defendants for goods stolen.

The question on this bill of exceptions is presented coupled

The goods were removed when they would have been destroyed had they been suffered to remain, the store in which they were being entirely consumed. The fire originated in an adjoining building.

The proposition involved in the charge will comprise the case of goods stolen after they had been all safely removed from the store, and were in the street, as well as the case of a theft while they were yet in the store. In the opinion of one of my brethren, a distinction exists between such cases, and he supposes that the underwriters are liable in the first, but probably not so in the second case. I do not myself think that any solid distinction exists; but if it does, the charge is exceptionable in this view as embracing the first case.

To test, then, the legal proposition in its latitude, it is to be assumed that the goods were stolen in the course of removal from the place of the fire to the Sun Buildings, where they were stored during the night, and from which they were delivered to the plaintiff the next morning. i p

The contract is to indemnity the assured from a loss or damage arising from fire. A loss resulting from theft presents a different cause of injury, and is not literally within the contract of indemnity.

The theft, then, was the immediate producing cause; the fire was a cause of that cause, but was not the direct agent in the loss.

Now, the tendency of the law of insurance, both marine and fire, has been to determine all cases of a similar nature by a reference to the direct proximate cause. The common maxim is, causa próxima non remota speetatur. Lord Bacon was its author, or at least its great interpreter. It is needless to repeat his well known philosophic explanation. It is of more importance to deduce from authorities the extent and practical application of the rule.

In marine policies covering a loss by fire, it is no defence that

So in the case of fire policies, it is settled, that insurers are responsible for loss by fire, though occasioned by the neglect of the assured, or of their agent, short of actual designed fraud. (Columbia Insurance Co. v. Laurence, 10 Peters’ Rep. 507 ; Gates v. Madison Insurance Co., 1 Selden R. 469; St. John v. The American Insurance Co., 1 Duer Rep. 371.)

In all cases of this character, the fire is found to be the proximate and efficient cause. The court, finding this, stops there, and will not go farther in the chain of causes, except in some special cases. In special cases we find an inquiry made into antecedent causes. The question is, when will such a preceding cause control the decision of the particular case ?

I think I am warranted in saying, that if the proximate cause is within the policy, the insurers will not be exonerated by proof of a preceding cause not within it, however plainly it led to the result. And again, if the proximate cause is not within the policy, the insurers will not be held liable, although a preceding cause is within it, and tended to produce the loss.

I state this proposition as the general rule. It is undeniable that there are cases in which a damage springing directly from a cause not covered, is yet to be attributed to a peril which is covered. These are exceptional cases; and it is of the highest importance to remember that they are so, and that the other is the rule.

. If I mistake not, these two propositions will be found more consistent with the great mass of authorities than any other.

Thus the case of the General Mutual Insurance Co. v. Sherwood, (14 Howard U. S. Rep. 351,) involves the following points: A damage from collision with another vessel can be charged to underwriters, though caused by the mariner’s neglect. It is a peril of the sea. But damages paid to the other vessel, under a sentence in Admiralty, are not chargeable. The condemnation is the proximate cause. That is not insured against. It is traceable to neglect. That cannot of itself confer a right of action, although it will not absolve from a liability once fixed by the terms of the contract.

In St. John v. The American Insurance Co., (1 Duer Rep. 371,) the poEcy was against fire, with a clause that the Company would not be responsible for any loss occasioned by the explosion of a steam bofier, or explosions arising from any other cause. A steam boiler used on the premises exploded. The fire in the furnace and stoves in consequence communicated with the timbers and wood work, and the building was destroyed. The insurers were discharged.

Now, although the explosion and fire were nearly simultaneous, it is physically certain that some space of time must have intervened between them. The fire was strictly the immediate cause, but the explosion was so entirely the actual and efficient cause, as clearly to create an exceptional case.

In Waters v. The Merchants' Insurance Co. ( 11 Peters’ Rep. 213 ,) one point decided was, that a loss by fire caused with a barratrous intention by the master and crew, was not a loss by fire, but one by barratry; and as the poEcy did not insure against barratry, the insurers were not Eable. Justice Story says, the barratry concurs with the element, eo instanti, when the injury is produced. Holes bored barratrously, by which the vessel is filled with water, is not a loss by a peril of the sea, but by barratry.

Another point determined was that in a marine, as weH as a fire poEcy, a loss by fire falls upon the insurers, although caused by negligence. And lastly, that if a fire causes an explosion, the fire is the actual and proximate cause of the loss.

It may be observed, that in these cases and examples, we cannot separate the immediate agency of the loss, from the producing cause of that agency. The act of applying a torch, or strewing powder, with a view to blowing up the vessel, is not in strictness the ignition of the vessel; yet the design and operation of it are one act.

Gobay v. Lloyd (3 Barn. & Cres. Rep. 793), was the case of an insurance upon horses warranted free from mortaEty and jetti

Laurence v. Aberdeen (5 Bar. & Ald. Rep. 107), was upon a policy containing the same clause as to mules. In consequence of the heavy pitching of the vessel in a storm, some of them were killed. The insurers were held liable. The word mortality, meant death from natural causes, not from violence.

In Totham v. Hodson (6 T. R. 655), slaves died from want of provisions, but this was caused by the ship being driven from her course by tempests. A statute (21 Geo. 3), had enacted that no loss or damage should be recoverable on account of the mortality of slaves by natural death, or ill-treatment, or throwing overboard. The underwriters were held not liable. But Chief-Justice Abbott, adverting to this case in Laurence v. Aberdeen, states, that this was because of the provision of the statute.. Otherwise the underwriters would have been responsible.

Montoya v. The London Assurance Company (6 Excheq. Rep. 451), a vessel laden with hides and tobacco, shipped sea-water, which rendered the hides putrid, and thus imparted an ill flavor to the tobacco, and injured it. Held to be a damage from the perils of the sea.

There is also the case of Hahn v. Corbett (2 Bing. Rep. 205). The insurance was upon goods in a ship warranted free from capture. The ship was stranded on a shoal within a few miles of her -port of destination, disabled from proceeding, and lost. While lying on the sand she was seized by the commander at the place where she was stranded, and confiscated. It was held to be a loss by the perils of the sea. The place had been taken by the Spanish force, shortly before the arrival. Some goods were taken out undamaged, but the bulk was greatly injured.

This case is certainly open to the remark, that the loss had happened, and was absolute, by reason of a peril insured against. The insurers’ liability was fixed. Could a new event displace that liability? The enemy profited by the calamity which was insured against. In short, upon the principle of the Court there was a total loss consummated, before the capture to which the loss was sought to be attributed. Best, C. J., says: “It has

But how is it here? The removal was an act for the purpose of preserving the goods to the owners, not to rob such owners of them. In fact, they were rescued from the peril insured against, when they met that not insured against.

The case of Dean v. Hornby (24 Eng. L. & Eq. Rep. 85) is a striking illustration of the principle of this case. A slip was insured for one year. During the time, she was taken by pirates. She was subsequently rescued, but never came to the possession of the owners, nor had they the means of ever getting possession. The principle is, if there is once a total loss by a peril insured against, it will continue to be such, unless something afterwards occurs by which the assured gets, or has the opportunity of getting, the property back to him.

So, in the case put by Mr. Justice Story, in Maguire v. The New England Company ( 1 Story Rep. 164 ) of a capture insured against, and before the vessel is delivered from that peril, she is lost by fire or accident, or negligence of the captors. The loss shall be attributed to the capture.

In that case the vessel was insured against loss by capture or seizure. But during the detention she became injured to the amount of a total loss. The insurers were held liable. The capture had perfected the loss. The vessel had not escaped from that peril until the injury, had become irremediable.

Brondrett v. Hentigg (1 Holt Rep. 149) may be treated as a case of the same class. The policy was on goods from London to the Isle of France, and covered losses from the perils of the sea. The ship was wrecked, but some of the cargo was landed. The natives destroyed part, and plundered the rest. Chief-Justice Gibbs said: “ The cause of the loss was the perils of the sea. The goods got on shore never came to the hands of the owners. An abandonment was not necessary.”

The French writers support this case. Emerigon and Pothier declare, that the loss of goods by pillage, after a vessel has been wrecked upon a shore, is to be borne by the insurers. Shipwreck opens the insurance. The property becomes that of the insurers. Res perit domino. (Pothier Traite des Assurances, No. 55.; Emerigon, ch. 12, § 29.)

When, then, we find a peril actually insured against is the efficient direct cause of a loss, certainly it would be strange to hold, that an occurrence the mere consequence of such peril should vary the liability. But the distinction seems to me a broad one, when the peril actually insured against has not directly affected the property, but its consequence—an injury not within the policy, is to be the ground of responsibility.

Levy v. Baillie (7 Bingham Rep. 349) was cited and relied upon by the counsel for the plaintiff. The action was on a fire policy, with a clause requiring the assured to give a full and true account of the damage or loss, by affidavit or affirmation. In case of fraud, or false swearing, the policy to be void. The insurance was for £1,000. The plaintiff swore to a loss of £1,085, viz. £85 for goods injured in the process of removal, and £1,000 for goods abstracted by the crowd and never recovered. The goods were, bedsteads, tables, chairs, carpets, &c. The defence was, fraud in the valuation; that it was impossible goods so bulky and numerous could have been carried off undetected. The witnesses testified that policemen were on the spot, and a cordon was formed almost immediately after the fire broke out; and that the fire was over in two hours, and that no article of bulk could have been carried away. The plaintiff’s witnesses denied that the blockade had been effectual. The Chief-Justice left it to the jury to say whether the claim was fraudulent. They found for the plaintiff, and with £500 damages.

The defendants obtained a rule for a new trial, on the ground that such a verdict did, in fact, establish the fraud in the demand and also that the verdict was against evidence. It was resisted, on the ground, that there might have been a mistake in the estimate of the goods lost, and that the evidence was conflicting as to the probability of loss.

Undoubtedly this case is open to the remark, that the point of a freedom from liability for goods stolen was not made when it would have been decisive. The granting of the rule was, however, manifestly warranted by the great disproportion between the sworn valuation and the verdict, proving a case of fraud.

There is a line of cases in which the maxim in question is qualified, and exceptions permitted upon the ground of fraud or neglect, which was the producing cause of the immediate agency of the loss. It is sufficient for me to refer to the late case of Thompson v. Hopper (Queen’s Bench, Jan. 1857, Law Jour. Rep., vol. 26, p. 18). Lord Campbell cited several cases to illustrate the proposition that the maxim of Lord Bacon was qualified by another: dolus circuitu non purgatur. Among them is Waters v. The Merchants' Ins. Co. (11 Peters, U. S. Rep. 213), before noticed, and Davis v. Garbett (6 Bing. N. C. 747). Tindal, Chief Justice, there said: “ The maxim relied upon can never be applied, when it contravenes the fundamental rule of insurance: that the assurers are not liable for a loss occasioned by the wrongful act of the assured. For this purpose the misconduct need not be the causa causans. If it be the efficient cause of the loss, it is enough.” Bell v. Carstairs (14 East Rep. 374) was also cited and relied upon. A vessel was condemned, and condemnation was insured against. But the condemnation was for not having such papers as a neutral ought to have had. The Court held, the plaintiff’s own neglect and fault disabled him from recovering.

In this case Lord Campbell wanders, with the propensity and keenness of his country’s intellect, into the metaphysical distinction between causa causans and causa sine qua non. Indeed, if we take one step in that direction, we may soon be lost in the mazes which led one of his able countrymen to say, “ that the word 1 cause' has been so changed, and given so many different meanings, in the writings of philosophers, and in the discourse of the vulgar, that its original and proper meaning is lost in the crowd.”—Reid’s Philos. Human Mind, p. 461.

There are some cases in our sister States which bear closely upon the present question, and which I proceed to notice.

In Hillier v. The Alleghany Co. (3 Barr’s Penns. Rep., p. 470),

Mr. Justice Grier, in the Court below, may be considered as conceding, that if the building which contained goods was on fire, and they were injured by the water used in extinguishing the flames, or by breakage on a removal, the insurers, under a liberal construction of the policy, would be answerable. But here the .fire was the remote cause of the injury. Chief Justice Gibbs, in the Court above, said: “Insurers are - answerable for direct and immediate, not for consequential and remote, losses from a peril insured against. When that is fire, the instrument of destruction must be fire. The proximate cause determines the character of the loss. On this-principle the insurers were held liable for the Dutch ship burnt by the Spaniards, in consequence of the apprehension that the crew was infected by the plague. But the converse of the rule, which charges the insurers with a loss of which the particular peril is the proximate cause, exempts them where it is the remote one.”

But in Babcock v. The Mont. Ins. Co. (6 Barbour’s Rep., p. 640), Justice Pratt says: “Goods injured by being removed, to save them from a fire, or by water thrown to extinguish it, are within the provisions of the policy.”

Case v. The Hartford Ins. Co. (13 Illinois Rep., p. 676): policy on goods in a brick store, Ho. 88 Lake street, Chicago. By the policy the Company was to be liable for all such immediate loss or damage as should happen by fire from October the 6th, 1849, to October the 6th, 1850. In case of fire, the insured were to use all possible diligence in saving the property, and the Company was not to be responsible if they failed in that respect.

A building immediately adjoining the premises took fire, and the flames threatened the store with imminent danger. Water was thrown upon it, and came down in considerable quantities, The doors were thrown open by the orders of the Eire Depart? ment, which were soon, however, countermanded. Some of the goods were injured by smoke and water, and most of them

The Court says: “The circumstances, as they existed at the time the removal .was made, must determine the necessity for it; and whatever loss or damage the plaintiff necessarily sustained by the removal of the property insured, when the danger of its destruction by fire was so direct and immediate, that a failure to have made the removal, while the party had the power, would have been gross negligence, he is entitled to recover.” An objection was made that damages caused by a removal could not be recovered, under a count, for a loss by fire; but this was overruled.

This was a decision of the majority of the Court, the Chief Justice dissenting. The goods had been removed by the assured; and the Court say, “ that they might have been so carelessly removed, and so wantonly exposed, as to relieve the insurers from any liability.”

With respect to this case it may be observed, that damages attending a removal—that is, from the breakage or injury directly brought upon the articles—is an ordinary incident to a fire. It may necessarily be anticipated, in every case, of nearly all descriptions of goods, and may reasonably be considered as entering into the contract.- It is like the damage from water, thrown upon goods which have taken fire, or are nearly exposed to it.

In Webb v. The Protectors Insurance Company (14 Missouri Rep. 3), there was an exception in a fire policy, exempting the Company from any liability for theft. The Court, in its opinion, says, that if there had not been such a clause the Company would have been liable for losses by theft during a fire—the assured not being guilty of any negligence. There was the same clause as to using diligence, which was in the policy in the Illinois, case,

I do not deny that there are losses resulting from a peril insured against, but not its direct effect, which are covered by a policy. A vessel is driven by tempest on an enemy’s coast, and the goods are seized. It is a loss by the perils of the sea, although the pillage is the immediate agent of the loss. Goods are injured by water poured upon them to extinguish a fire, or to prevent its seizing them. Goods are damaged by the act of removal to get them beyond the reach of flames which would otherwise consume them. It is apparent that in each of these cases, Baron Pollock’s test is' applicable. The actual injury “ is a natural and almost inevitable consequence of the occurrence of the peril actually insured against” (6 Exchq. Rep. 458). But it seems to me there is a satisfactory, if not a broad distinction, between such cases and the present. They do not merely depend upon the fact that suc]i damage is immediately and necessarily the consequence of a fire; but upon this, that they are so invariably and inevitably such a consequence, that it is almost impossible to suppose they did not enter into the contemplation of the parties when they made their contract.

In a strict and logical sense, no one would contend that theft was the natural effect of a fire. In the sense of a common and anticipated result, it would be so in a large city, and scarcely at all so in a small well-ordered village. The latitude and force of the contract might thus fluctuate with the numbers and honesty of each locality. Still less can I consider such a result as inevitable. The extent of precautions, the bulk or size of the articles exposed, the period of exposure, are all circumstances to render the depredation more or less probable under the worst of circumstances, and in some cases to render it nearly impossible.

I cannot free my mind from the consideration that the insurers have entered into an express contract, by which they have assumed to pay a loss happening by fire, and have not engaged to be responsible for theft. It is incumbent, then, upon the assured to prove that a loss from this cause was so plain and necessary a consequence from a fire, as that the parties must have

I am indisposed, for my own part, to extend the engagement of insurers beyond what is palpably involved in their contracts, or has been decided to be so. In proportion as their responsibility is expanded by construction, an encouragement is given to recklessness, and the opportunity is enlarged for fraud.

II.—There is another point in the case, which requires consideration. The goods were removed by the ordinary watch, and by what is called the insurance watch. These persons, with the police, removed the goods, formed the lines, and deposited the property in the neighboring store. On the ensuing morning the insurers gave notice to the plaintiffs that the goods were there, and sent them the key.

In connection with this evidence, we may refer to the sixth condition of the policy. It provides “that in case of fire, or of loss or damage thereby, it shall be the duty of the insured to use their best endeavors for securing and preserving the property ; and if they should fail to do so, this company will not be answerable for the loss and damage sustained in consequence of such neglect.”

It at first appeared to me unreasonable, that such a covenant should be considered as fulfilled, if the plaintiff used proper efforts, when actually, and only when actually present at a fire. It struck me it was incumbent on him to use some precautions to ensure the intelligence of a fire being given to him.

While further consideration has led me to vary this view, it has also induced me to consider that under the duty imposed by the condition, the general fire watch, police, firemen, and insurance watch, may be treated as agents of the plaintiff for protecting the property.

Thus then the interest, or actual employment by the insurers, concurs with the fair import of the stipulation of the assured, to

This view meets the suggestion, that the defendants had taken the sole control of the property, and must on that account be responsible. The proposition of the defendants is, that the goods could not have been stolen, and the alternative is, they were overvalued; and the position is, that they could not have been stolen, because of the entire sufficiency of the measures to guard them from it.

It then occurs that, whether these measures were sufficient, is an important question of fact.

The view I have taken of this part of the case, is this: if theft is to be deemed by construction within the policy at all, yet the underwriters may be discharged, if the assured were guilty of gross negligence. Certainly on the theory of agency and the testimony, that could not be found. Again, if theft is not within the scope of the policy, yet the defendants might have made themselves liable, by an unwarranted exclusive assumption of possession and control. This also clearly could not be found.

My conclusion is, that the charge of the" judge was wrong, and that there must be a new trial. -