Irving Browne Isaac Grant Thompson.

The American reports: containing all decisions of general ..., Volume 36 online

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Vol. XXXVI — 54

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Brown v. Ward.

whether in connection with the other proof in the case they eatis-
factorily established it.
[Omitting minor matters.]

Rulings affirmed^ and cause remanded,

NoTB BY THK R b po h t kr . — To the same effect, Rdbitimn ▼. AdaniM, 02 Me. :J69; s. c, \t
Am. Rep. 478. Inrt Smith's WiU, Wisconsin Supreme Oourt, April 19. 18B1, holds that a
mere belief in ** spiritualism ** does not destroy testamentary capacity, although united
with peculiar eccentricities. The court thus describe the testator: "It satisfactorily
appears that the deceased was a gentleman of excellent moral character, and that his
intellectual powers were of a high order. His mind was cultivated by reading and study,
and his general information was very extensive and varied. One witness says, no doubt
truly, that he was a first-class mechanic and scientist ; that he had a good theory of
mechanics and was a well-read man. He seemed to have some talent for invention, and
did invent several articles which he sought to bring into use. He attempted other inven-
tions, and failed. He possessed great self-reliance and firmness, and was not easily
swerved from a purpose deliberately formed. Some of the witnesses say he was very con-
ceited and self-willed." **In short, the deceased was a person of vigorous intellect and
will, had unbounded faith in the accuracy and soundness of his own judgment, and was
moved to action by an earnest, sanguine temperament. In such a man we should natu-
rally expect some peculiarities or eccentricities of conduct, but we find fewer of t^iese dis-
closed in the evidence than might reasonably be looked for. It appears that for a shori
time ~ perhaps two or three months, but during what year is not shown — he advertiseil
one of his callings by wearing on the front of his hat a small paper on which were printed
the words, * Solicitor of patents. * Also, that he was seen at different times on skates in a
publis street of the city. It seems, however, that he was testing a new kind of skate
which he had invented. Thus far we find no evidence that the deceased was not of sound
mind when he executed the instrument propounded as his last will and testament. But
there was another peculiarity of the deceased which will now be considered. He was what
is commonly called a spiritualist. He had come to believe that through certain mediumH
he could communicate with the spirits of deceased persons. He received through one of
these mediums what purported to be a message from his deceased wife, advising him to
marry the appellant, to whom he was then paying his addresses. He doubtless believed
the message was from his deceased wife. He also consulted mediums quite frequently
concerning his business and proposed inventions . He once engaged in wheat speculations
on advice from such sources. At first he was successful , but later operations were not so
successful. It does not appear that he persisted in these speculations veiy long after
fortune turned against him. During the French and Qerman war he believed reports of the
condition of the contest which he received from mediums, although different from the
current newspaper reports. But when the evidence of the truth of the newspaper reports
became strong, his confidence in the infallibility of the other reports was weakened. He
received a communication purporting to be from his deceased wife after his last marriage^
and after he had trouble with some of his children, approving of what he liad done. Thi.><
was evidently after he had executed his will. It does not appear whether or not \n
regarded the conununication as genuine, but probably he did so regard it. But the intense
faith of the deceased in the accuracy of his own judgment was a counterpoise to his belif l
in the possibility of obtaining direct messages from the other worid. It led him to admi'
another element in his belief which would leave him free to follow his own judgment in a
given case, no matter how strongly he might be pressed by supposed supernatural advice
or entreaty to act against it. So he came to believe, as one witness states it, * that there
was more than one kind of spirits— some might try to fool him, and others might not.* It
Is perfectly obvious from the whole testimony that the Infallible test which he applied to
determine from which of these classes of spirits a given message came was this: If it
accorded with his judgment, it came from the reliable class; If not, then it came from the
other class and was to be disregarded.**

In Bonard'i WUl^ 16 Abb. Pr. (N. S.) 128, it was held by HcroHiiHsa, surrogate, that a

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OCTOBER TEJiM, 1879. 427

Brown v. Watd.

beUef In the doctrine of metempsychosis does not argue Insanity, or defeat a wlU hy
which the testator, harlng no family, left his estate to the Society for the PreTentkm of
Cruelty to Animals. The court said: **To no human being has been given the positive
knowledge of an existence after death. The Instincts of the human mind prompt ua to
beUeve, or at least to hope, that although there may be adeath of the body, yet that there
Is an Intellectual or spiritual part of our nature which survives in some form or other.
But In a logical sense there Is no major premise of knowledge ; It is to all of us either a
matter of speculation or a belief based on the religious doctrine or tenets which we accept.
To almost every man there is, to him, some evidence that there Is a higher power, what-
ever that power may be, which ban created this world, and which governs it. The mani-
festations which surround him on every side confirm him hi that belief, though what that
power or Being is ho can with his finite knowledge have no definite conception; and there-
fore his views as to a future state rest merely on a philosophical speculation, or the faitb
of that religion which he accepts as his creed, and Is taught by Its priests: and * faith is the
evidence of things not seen.' The world is divided into many sects, each sect presenting a
creed more or less different as to a future state. This veiy doctrine, metempsychosis, as
shown In this case, has been believed in by Pythagoras, Plato and others of the ancient
philosophers and sages of the East, and even in modem times by Intellectual, wise and
good men, and is at this day accepted by a larger portion of the human race on the globe
at large than those who reject it.

** Having seriously considered this subject with reference to the nature and limited
capabilities of the human mind, and the difference not only of race but of men of the same
race, living under the same civil and rel^ous institutions, and resulting from origin, edu-
cation and circumstances; and also borne in mind the freedom of Individual conscience,
favored by the society in which we dwell, and by our laws, and the multifarious forms and
shades of opinion on all subjects, which are constantly engendered among us, and must be
tolerated, whether as means of arriving at truth itself, or as wise, or mistaken methods of
happlne^, w^iloh each person has a right to select for hfanself. or as heresies and errors in
individual cases inevitably growing out of the large liberty accorded to oil ; and taking, as
I feel compelled, a comprehensive and liberal view of the subject, my reflections have led
me to say that I cannot commit myself to what I deem an extravagant and unjust stretch
of judgment of a court of justice, to hold upon the question of the condition or destiny of
the soul of man after the death of the body — of which no man has more positive knowl-
edge than can be expressed by his individual belief —that Insanity, or a delusion to be
characterized as insane, as respects competency to dispose of property by will, for a pur-
pose which might not otherwise than for an alleged delusion have been entertained, but
which purpose. In Itself considered, Is entirely rational and explicable on other grounds. Is
to be ascribed to one who honestly and sincerely bad faith In the doctrine of metempsycho-
sis, and who having no family or any near or known remote relations, bequeathed his en-
tire estate to a society for the prevention of cruelty to animals.

**It appears to, me that if a judicial officer should assume, that merely because a ipan
earnestly believed in that doctrine, he was insane, or labored under an insane delusion or
monomania, incapacitating him from making a will, if prompted by that faith, but though
consistent with it, wholly rational In Its provisions. It would not faU very far short in prin-
ciple, that all mankind who do not believe in the particular faith which the judge accept*;,
respecting the futuro state, are more or less insane or the victims of an insane delusion.

** This question is entirely within the domain of opinion, or faith, and not of knowledge.
A man may properly be assumed insane upon evidence that he Is governed by hallucina-
tions which are physicaUy impossible to the knowledge of all sane men, and which are eon.
trary to the evidence of senses^ or who is influenced by delusions which are the creation of
diseased reflective faculties.

* * Hence the opinion as to the future state, of which no man has positive knowledge, and
In regard to which mankind have always differed, and do widely differ to-day, even In the
most civilized countries, and among the most intellectual of men, cannot In any respect be
deemed evidence of insanity ; the only rule by which ttie insanity of one of certain opiniont
can be determined being sume test founded on positive knowledge.

*' The insanity of an opinion must be established only with reference of knowledge ac-
esHlbto to ta6n of common minds and common understanding, and not upon the result!

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Merchants and Miners' Transportation Co. v. Associated Firemen's Ins. Co.

of profound scientific researches or escperiments, or acholastio theology, or religious tenets
conoemiogthe nature of the infinite, or the destiny of the race beyond the present, which
itself is too Tsst and mysterious a domain for the human mmd to comprehend; and if we
are so much at fault, or deficient, and so at Tariance in opinion of the truth of the praeent,
how can we presume to hold one insane as to our nature and destiny in the future?

** MoreoTer, if a court is to ascribe insanity to a man, or a class of men oonstitutiDg a sect,
on account of his or their opinion or belief as to a future state, and a particular sect h wl in
fact attained to a real knowledge of that future, the logical deductions would necessarily
be, that a major portion of mankind, comprised in all other and different sects, were of
unsound mind or monomaniacs on that subject. If it be the case that such knowledge has
been attained by a sect or known body of belicTers, the question renuiins, which is it, and
what tribunal is to exercise the judgment of determination/*

In Attsten ▼. Graham, I Spinks. aS7, the testator, an Englishman, early residing in India,
had embraced Mahometan and Hindoo notions, and also believed in astrology and necro-
mancy. He left money by his will to erect a cenotaph in Constantinople, with the testa-
tor's name engraved thereon, and a light burning therein, and the balance to the poor of
that dty. Held, valid. The court said : ^'The arts in which he professed to believe were
such as were once believed and professed by some of the most learned men in Europe, and
are still believed and professed by many of the eastern nations to which this gentleman
was so strongly attached/'

See KingOnury v. WhUaker, anU^ 918.


MORE V. Associated Firemen's Insurance Oompant op Bal.


<B8 Md. 448.)

Inmranee — fire — vessel — general average.
The doctrine of marine, average is not applicable to fire polioiee on TeBsels.

ACTION on a policy of fire insurance. The opinion states the
facts. The plaintiff had judgment below and appealed.

CTias. Marshall, for appellant.

Oeorge Hawkins Williams, John H. Thomas, William C. Schley^
Frank P. Clark, for appellees.

Robinson, J. This suit is brought by the appellant, owner of the
steamer "George Appold/' on a fire policy issued by the appellee,
insuring said steamer against loss by fire.

It appears that on the 20th October, 1877, while loading at the
port of Savannah, a fire was discovered among a cargo of cotton
stowed in the foreholdof the steamer, and in order to save both the


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OCTOBER TERM, 1879. 429

Merchants and Miners* Transportation Co. v. Associated Firemen's Ins. Co.

steamer and cargo from destruction, it was found necessary to sub-
merge the vessel.

The damages direct and indirect to the steamer itself, were esti-
mated at t2,500, and the damages to the cargo at $10,500.

The adjuster to whom the matter was referred decided, that the
damages to the cargo were according to the usage and laws of the
port of Baltimore, subject to the law of general average ; and the
appellant as owner of the steamer was obliged to contribute to
the cargo the sum of $5,231.29.

The steamer was insured by the appellee and other fire compa-
nies to the amount of $80,000 ; and the cargo was insured under
marine policies.

The fire companies tender themselves ready to pay $2,500, the
amount of damage sustained by the steamer, but the appellant
claims that in addition to this sum, he is entitled to recover the
amount paid by him under the law of general average to the cargo.
And this is the question, and the sole question at issue between the

Were this a question to be determined purely upon equitable
principles, there might be some ground to support the appellant's

The steamer was fully insured by the fire companies, and in the
event of its destruction by fire, they would have been liable for the
entire loss sustained by the appellant. In that event, instead of the
sum of $5,231.29 now claimed by the appellant, they would have
been obliged to pay the entire amount covered by their respective

If the steamer was saved from destruction by being submerged,
and the appellant as owner was in consequence thereof obliged to
pay $5,000 for damages to the cargo, it would seem but fair and
equitable that he should be reimbursed a loss thus incurred for the
benefit and protection of the insurers.

The liability however of the insurer is one arising upon contract,
and must be determined by the terms of the policy upon which this
suit is brought. It is hardly necessary to say, that a policy of in-
surance, like any other contract, must be construed according to the
evident intention of the parties, to be gathered from the language
used taken in connection with the subject-matter to which it refers.

The rights and obligations of the parties to this suit must there-
fore be determined by the contract as made between them ; and we

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BfflfrohaatB and Minen* Transportatioo Co. v. ABsociatod Firemen!^ Ins. C64

have no power to add new conditions or to extend the risk beyond
what is fairly within the terms of the policy itself. Now what are
the terms of this policy? Looking to the face of it, we find the
thing insured is a steamer, and the peril insured against is loss hv
fire. No other risk was assumed by the insurer/ and indemnity
against loss from this peril and this alone was the consideration for
which the premium was paid by the insured. Here then is a con-
tract in regard to a specific subject and made for a specific purpose,
and by it the correlative rights and obligations of the parties must
be determined.

Tt is not contended that th^ appellee has in express tenuis agreed
to reimburse the appellant for losses which as owner he might be
obliged to contribute to the cargo, but the argument is, that the
insurer is liable for all damages resulting directly from the peril
insured against, and that actual combustion is not always the test
by which such damages are to be ascertained. This in a certain
sense is true. !

The insurer of a stock of goods may be liable for damages caused
by water, although the water was used to extinguish afire upon the
house in which such' goods are stored. And upon the sakneprinciple
it has been held, that the insurer of a house is liable for its destruc-
tion, when such destruction was absolutely necessary to arrest the
progress of a fire in a city. City Fire Jns. Co. v. Corlies, 21 Wend.
367; WMherall v. Marine Ins., Co., 49 Me. 200; Oeisek v. Crescent
Mutual Ins. Co., 19 La. Ann. 297; Hillier v. Alleghenjf Co. Mut. Im,
Co.y 3 Penn. St. 470; Thompson v. Montreal Ins. Cb., 6XJ. C, Q. B.

In these and other like cases, the law presumes, that the parties,
from the very nature of things, must have contemplated the natural
and physical consequences resulting from the peril insured against
So in this case the appellee is not only liable for the damages to
the ship from actual combustion, but also for damages to the vessel
resulting directly from the means used to extinguish the fire. But
the liability of the insurer arising in cases where the peril insured
against has been the proximate cause of the loss, has never been
held to cover damages to other property not insured by the policy.

If then the appellant is entitled to recover in this suit, it must
be upon the ground that the law of general average, by which he
was obliged to contribute to the loss sustained by the cargo, con-
stitutes aud forms a part of the risk assumed by the appellee.

Digitized by



Merduuiitfl and Miners' TraDeportation Co. v. Associated Firetaen*s Ins. Co.

Fire policies, it is well known, have been in existence for centuries,
and it is bnt fair to presume that cases like the present, where the
vessel has been insured by such policies, and the cargo insured un-
der marine policies, must have frequently occurred ; and yet no
case has been found, in which it has been held, that the fire policy
must contribute to the loss sustained by the cargo. Not only this,
but the proof in the record shows that the usage and laws recog-
nized by mercantile men, and by which such policies are construed,
Are all against this contention. In determining for the first time a
question arising upon insurance, such usage lind laws are entitled
to weight, not only because they are approved and sanctioned by
practical and sagacious men, in regard to a subject-matter, in which
they are alike interested, but also because the parties must be pre-
sumed to have contracted with reference to them. In fact it has
been said, that the whole law of insurance has done little else, than
to adopt such laws and lisages, and to give to them the force of

In the absence then of any authority to support the appellant's,
contention, let us see whether it can be supported on principle.

The whole scope and object and purposes of a firiB policy are
different from those of a marine policy. By the former the in-
surer agrees to indemnify against loss by fire. That Is the ohly
peril for the loss by which he agrees to become ripspohsible ; and we
have no right to enlarge the contract, or to extend the risk by im-
plication. By a marine policy, the underwriter engages to pa^ not
only the loss or damage to the thing insured, but also to reimburse
the owner all sums paid by him under the laws of general average.

General average is a contribution by all the parties in a sea ad-
venture, to a loss suffered for the common benefit of all. In such
cases, where any sacrifice is deliberately and voluntarily made, or
any expense is fairly and bona fide incurred, to prevent total loss, or
some greater disaster, it is but just and right, that the sacrifice or
expense should be born relatively by the owner of the ship, freight
and cargo, to the end, that the loss may fall equally upon all the
parties in interest. Bxrhley v. Presgravey 1 East, 228 ; ffalleii ▼.
Wtgram, 9 C. B. 580; Fletcher v. Alexander, L. R., 3 C. P. 380.

For risks thus assumed, and which may be said to be co-extensive
with the perils of the sea — embracing general average, salvage and
abandonment, the insured pays a premium more than five times
greater than the premium against loss by fire alone.


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Merchants and Miners* Transportation Co. v. Associated Firemen's Ins. Go.

If the appellant desired protection against the risk of general
average, or against other penis of the sea, he should have insured
under a marine policy. If he preferred to insure at a lower rate of
premium, and to take upon himself all risks, other than loss by fire,
he has no reason to complain, because the insurer refuses to reim-
burse him for a loss not covered by the policy ; and which by the
well settled law of insurance constituted no part of the contract
between the parties.

In the many cases relied on by the counsel for the appellant, the
questions considered and decided arose on marine policies, under
which the rights and obligations of the parties are altogether dif-
ferent from those belonging and incident to a fire policy.

The policy sued on in this case limits the liability of the appellee
to losses to the steamer itself by fire, and upon such a policy the
appellant is not entitled either upon principle or upon authority to
recover the amount which under the law of general average he was
obliged as owner of the vessel to contribute to the cargo, even
though the damages to the cargo were occasioned by the means
used to extinguish the fire on the vessel.

The statement of facts shows, that the damages direct and
indirect to the steamer were $2,500 and this sum the appellee tend-
ers itself ready to pay. There was no error theref oro in refusing to
grant the appellant's prayers, and the judgment below must be

Judgment affirmed.

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(42Mksh 100.)

CofUraet — enHre — performance prevented by acdderd — reeo^etff,

ITiider a contract to erect an addition to a building for a fixed sum for the
entire work, there can be no recovery where complete performance was pre-
Tented by the destruction of the building by fire without fault of either
party, and there was no acceptance of what had been done. (See note, p, 486.)

ASSUMPSIT. The opinion states the case. The defendant had
judgment bolow.

J31 (6 H. E. Walbridge, for plaintiff in error.

A. Stout and Randolph Strickland^ for defendant in error.

MAB8T0K9 J. The controversy in this case arises out of certain
materials furnished and work and labor performed by plaintiffs in
error, under an oral agreement to furnish materials and erect an
addition to the building in which the defendant resided. This
^addition lapped by the old building about eight feet, which was to
give room for a door swinging back so it connected with the old
building. The sills were mortised into the old building and pin-
ned, and the sill of the old part formed part of the sill of (lie new
Vol. XXXVI— 66

Digitized by



Fildew V. Besley.

part. Between the old and the new part there ^as a door cut
through, and the door and the lock hung. The old wall formed
part of the new." The agreement specified fully how the building
should be completed, and tlie price agreed upon was $250. There
was evidence tending to show that the work, labor and materials
should not exceed this sum, and that such work and labor were
being done by the day. After the work was partly done the house
and this addiction were destroyed by fire without the fcult of either
party, and eVidenc^ was giVen tending to show that ihe Work and
labor done and materials furnished up to the time of the fire
amounted to nearly two hundred dollars.

The court charged the jury that if the agreement made was to
furnish the materials and do the work, and no particular sum was
agreed upon therefor, plaintiffs could recover. If, however, they
should find that the materials furnished and labor done were at a
certain fixed price for the job, to be paid for when completed, and
that it was not completed at the time of the fire, then for the ma-
terials furnished and labor performed up to the time of the tire
they could not recover. The correctness of Ihis portion of the
charge is what our attention has been called to as the matter com-
plained of.

Under the strict common-law rule, where a party had failed to
comply substantially with an unapportionable agreement, he could

Online LibraryIrving Browne Isaac Grant ThompsonThe American reports: containing all decisions of general ..., Volume 36 → online text (page 49 of 123)