author: * Judge G-rimke

text:
    John G. Fulton and William R. Foster v. The Lancaster (Ohio) Insurance Company.
    A policy of river insurance containing no clause against barratry does not ■cover a loss, the remote cause of which is the negligence of the master or crew. Cases on this subject reviewed.
    This cause was adjourned from the county of Muskingum. The points in discussion, and the form in which the case came up, are fully stated in the arguments of counsel and the opinion of the court. >

      Goddard and Converse, for plaintiffs:
    This is an action of assumpsit on a policy of insurance, dated March 16, 1836, whereby the defendants caused the plaintiffs “ to be insured five thousand dollars, on a ñat-boat and cargo, at and from Duncan’s Palls to New Orleans; that is, four thousand eight hundred dollars on the cargo, consisting of eight hundred barrels of flour, and two hundred dollars on the boat.” The boat, with the cargo on board, left Duncan’s Palls, and while proceeding on the voyage was wrecked on Cheadle’s island, in the Muskingum river.
    At the trial on the circuit the evidence showed, in the opinion of the court, that the loss might have been avoided, *but for the want of ordinary care and attention on the part of the captain and crew, at the time when the boat, in making a bend of the river, came in sight of the island, and a short time before the loss occurred. The jury fonnd a verdict for the plaintiffs for the sum of one thousand seven hundred and seventy-nine dollars and thirty-four cents. The defendants moved for a new trial, on the .ground that the verdict was against evidence, and this motion was reserved by the court for decision in bank.
    The case presents this question: Is a loss of property insured, the immediate cause of which loss is one of the perils insured .against, and the remote cause the negligence or carelessness of the captain or crew, covered by the policy, and such as will •charge the insurers?
    The clause in the policy material to the decision of this question is as follows: “Touching the adventures and perils which the said insurance company are contented to bear and take upon •themselves in the premises, they are of the rivers, fires, enemies, pirates, rovers, assailing thieves, and other perils, losses, and misfortunes which shall come to the damage of the said boat and cargo, according to ■the true intent and meaning of this policy, as herein expressed.” The plaintiffs claim that, the captain and crew, being competent in skill and in numbers at the time when the risk attaches and the vessel sails, the insurers are liable for a loss arising immediately from any of the perils enumerated in the policy; although-the remote cause ■ of such loss may be traced to the negligence or carelessness of those intrusted with the management of the vessel. If the defendants .are not liable, it is because of an implied warranty that the eapLain and crew shall possess and exercise ordinary skill and care

      during the whole voyage. We contend that the extent of the engagement of the insured is, that the captain and crew shall be competent in skill and sufficient in numbers at the time the risk attaches and the vessel sails. The only warranty implied by law, on the part of the insured, is, that the vessel shall be sea-worthy. By the warranty of sea-worthiness, he undertakes that the vessel shall be stout, staunch, and tight; have sufficient stores and supplies; a captain possessing a capacity for the particular voyage, and skill in his profession, and a competent number of men for the management of the vessel. 1 Philips on Ins. 113, 114; 3 Kent’s Com., 2d ed. 287. And this warranty of sea-worthiness relates to the time of the commencement of the risk and sailing of the vessel. Peters v. Phoenix Ins. Co., 1 Bin. *592; 3 Serg. & Rawle, 25; 3 Kent Com. 287, 288; Busk v. Royal Ex. Ins. Co., 2 Barn. & Ald. 83; Crader v. Phil. Ins. Co., 2 Wash. 262.
    In respect to the construction of a warranty of sea-worthiness in a policy on cargo and freight, it has been held to be the same as in a policy on a ship. 2 Phil. Ins. 106. “ The construction of the implied warranty is the same on the question respecting the goods and freight, as it is respecting the vessel,” per Sewell, J., in Taylor v. Powell, 3 Mass. 331. “ The implied warranty is the same in an insurance on goods and freight as it is on an insurance upon the vessel. It is, that the vessel shall be in a navigable state at the time she sails,” per Wilde, J., in Merchants’ Ins. Co. v. Clapp, 11 Pick. 56.
    These authorities clearly show that the requisition that the boat shall be provided with a sufficient and competent crew, is a part of the implied warranty of sea-worth in ess; and that such warranty relates to the time of the departure of the boat from the place where the risk attaches, and is not a continuing warranty during the whole voyage. And is there not sound reason for this limitation ? The object of a person in effecting an insurance,- is to have the insurers protect him from Josses against which, after he has done all that he can do, he can notprotect himself. He is held liable, therefore, for any loss that may arise by reason' of his intrusting incompetent or careless men with the management of his boat, because he might have protected himself against such loss, by selecting competent and careful persons. He is liable if his boat be not properly constructed and of sufficient strength for the voyage on which she is about to depart, because he has it in his power to prepare and fit her out properly before she sails. But after he has done all this, and the boat takes her departure and is out of his sight,.he can not reasonably be required to do more. He has no power to prevent the occasional negligence of the captain or crew more than the insurers themselves have. They are beyond his reach. He has done all that he could do to securé skill, care, and attention, during the voyage, by selecting those who have the reputation among men, best acquainted with the business, of being skillful, careful, and attentive. And this is all the security which the insurers can require, or the insured can give, that the voyage will be carefully and prudently conducted. There is a risk that the vessel may be lost, after the owner has done everything he can do. This risk he would *guard against by taking a policy. He takes a policy — pays the premium — and has asked the insurers to protect him from loss, for the very reason that he can do nothing more to protect himself.
    Again, the loss for which the insurers are liable must be a loss occasioned immediatety.by the perils insured against. Gausa próxima, non remota, spectatur; and this is adopted as a settled rule, to prevent uncertainty and dispute. 3 Kent’s Com. 302; Walker v. Maitland, 5 B. & A. 171; S. C., 7 Eng. Com. Law, 59.
    The contract of insurance is a commercial contract. Its great benefit to the insured is, that if loss happen his business will not be. embarrassed or broken up. He can be immediately reinstated in his capital, without delay or prejudice to his mercantile arrangements. To effect this, the insurers must act promptly. There should be as little uncertainty as possible as to the losses for which they were liable. To this end, the rule is firmly established, which looks to the proximate cause alone. If a different rule be adopted, Abbott, Ch. J., says : “ It will introduce an.infinite number of. questions as to the quantum of care which, if used, might have prevented the loss. 1 am afraid of laying down any such rule. Walker v. Maitland, 5 B. & A. 171; S. C., 7 Eng. Com. L. 61.” If the rule, which regards only the proximate cause, be departed from, and the party permitted to speculate as to the remote causes of the loss, no general and certain rule can be laid down by the court. Each particular case must furnish a rule for itself; and what that rule is, can only be known with certainty after the case is decided. What loss ever took place that could not be traced back, after it had happened, to carelessness or negligence in a greater or less degree ? At what link in the chain of causation can the court say the inquiry shall stop ?
    The defendants rely on the case of Lodwicks et al. v. Ohio Ins. Co., 5 Ohio, 433, decided by this court in 1832. The court are respectfully asked to consider the question and review the opinion pronounced in that case.
    The same question has been recently decided by the courts of England, and by the Supreme Court of the United States, in cases not presented to this court when the question was discussed in 1832.
    The ease of Lodwicks et al. v. Ohio Ins. Co. declares that “ no doctrine is better settled, than that the insurer is not *liable under the common clause in the policy for losses resulting from negligence of the agents employed by the insured. 5 Ohio, 435. The authorities referred to, in the opinion of the court, are Grim v. Phoenix Ins. Co., 13 Johns. 451; Phil, on Ins. 224, 225 ; Tate v. Levi, 14 East, 481; Cleaveland et al. v. Union Ins. Co., 8 Mass. 321; Hodson v. Malcolm, 5 New R. 336 ; 9 Johns. 21. The decision professes to be founded upon both the English and American cases. Now it is respectfully submitted to the court, that of all the cases cited, the New York decisions alone sustain the rule laid down by the judge who pronounced the opinion of the court. The case cited from 8 Mass. 321, furnishes nothing more than the dictum of Sedgwick, J.
    That the law, as settled in England and by the Supreme Court .of the United States, is against the rule laid down in the ease decided by this court, will appear from the following cases:
    Busk v. Royal Ex. Ins. Co., 2 B. & A. 72. In this case the loss arose from the negligence of the mate, in lighting a-fire in the cabin and not seeing that it. was properly extinguished. The case was elaborately argued by Campbell, for the plaintiff, and Bosanquet, for the defendant, on a motion by the plaintiff for a new trial, the jury having found a verdict for the defendants. Buyley, J.: “ The question which the facts of this case present for the consideration of the court, is whether the underwriters, on a policy of insurance on a ship, are liable for a loss by fire, that fire having arisen from the negligence of the person who, at the time of the loss, had the charge of the vessel. The policy expressly throws upon the underwriters the liability proceeding from fire, barratry of the master and mariners, and all other perils, losses, and misfortunes that should come to hurt, detriment, or damage of the ship.” The object of the assured certainly was to protect himself against all the risks incident to a maritime adventure. The underwriter being therefore liable, prima facie, by the express terms of the policy, it lies upon him to discharge himself. Does he do so by showing that the fire arose from the negligence of the master and mariners? If the ship had been willfully sot on fire it would have been barratry, and the underwriters would be liable; but it has been argued that the underwriters are only liable /or loss by barratry because that is one of the risks expressly mentioned in the policy, and that the ^negligence of the master and mariners not being a risk expressly described in the policy, the underwriters are not liable for a loss thereby occasioned. In this case, however, the loss is occasioned by fire, against which the assured is protected by the terms of the policy; and in our law, at least, there is no authority which says that the underwriter’s are not liable for a loss, the proximate cause of which is one of the enumerated risks, but the remote cause of which may be traced to the misconduct of the master and mariners. If, indeed, the negligence of the master would exonerate the underwriter from responsibility in case of a loss by fire, it would also do so in cases of loss by capture, or perils of the sea, and it would therefore constitute a good defense in an action on a policy to, show that the captain had misconducted himself in the navigation of the ship, or had not resisted an enemy to the utmost of his power. It is certainly a strong argument against the objection, now raised for the first time, that in the great variety of cases upon marine policies which have been the subjects of litigation in courts of justice (the facts of many of which must have presented a ground for such a defense), no such point has ever been made.” Ib. 79, 80. The learned judge then reviews the opinions of foreign writers, referred to by counsel in the argument, and proceeds: “ The fair result, therefore, of all these authorities [i. e., Emerigon and other foreign writers], is this, that the underwriters are liable for a loss by fire occasioned by the negligence of the master and mariners, provided they insure against barratry, that term being by the French writers used in its larger sense, as comprehending negligence as well as willful misconduct; but inasmuch as the term barratry is used in our policies in a more limited sense, as applicable only to the willful misconduct of the mariners, the authority of Emerigon affords no ground for our decision in this case. We must, therefore, endeavor to collect the meaning of the contracting parties from llio terms of the policy itself; and in considering whether the assured, claiming for a loss by fire, is to have that claim disallowed on the ground that the fire was occasioned by the misconduct of the master, we must look to the other terms of the policy, and learn from them whether the assurers in other instances are responsible for the misconduct of the master; and when we find that they make themselves answerable for the willful misconduct of the master in other cases, it is not too much to say that they meant to ^indemnify the assured against fire proceeding from the negligence of the master and mariners. I am, therefore, of opinion in this case that the assured are entitled to recover as for a loss by fire, although that fire was produced' by the negligence of the person having the charge of the ship at the time. It has been argued that in this ease there was a breach of an implied warranty; and that there being no person on board of the vessel at the time of the loss, she was not properly manned, and consequently not sea-worthy. The owner certainly is bound, in the first instance, to provide the ship with a competent crew, but he does not undertake for the conduct of the crew in the subsequent voyage.” Ib. 82, 83. “In Tait v. Levi,” one of the cases cited by Judge Wright, “ there was a breach of the implied warranty, to provide a master of competent skill; I therefore think that the plaintiff, from the facts stated in this case, was entitled to recover, and that there must be a new trial. Abbott and Holroyd, Js., concurred. Ib. 83. Rule absolute for a new trial.

    The next case is that of Walker v. Maitland, 5 Barn. & Ald. 171; S. C., 7 Eng. Com. Law, 39. In this case, the plaintiff effected a policy of insurance, in the common printed form, on boats belonging to the ship Britannia, and on produce in said boats, or in any other craft employed in loading such ship. A certain sloop called the Vigilant was employed to bring produce to the Britannia. The sloop was sufficiently manned; and if the mate and other persons had done their duty, the sloop, with the produce thereon, would safely have reached the ship. About eight in the evening the mate lay down to sleep, leaving the charge of the watch to one of the seamen, another having the helm; and soon after the mate went to sleep, the whole of the watch on duty went to sleep also. The sloop being left to herself, soon run ashore and was beat to pieces, whereby a part of her loading was lost, and the rest damaged. The loss arose from the misconduct and negligence of those on hoard the sloop. There was also a loss of a hogshead of sugar from the long boat of the ship, the boat having been driven on the breach and wrecked, by the mismanagement of those on hoard thereof, and the hogshead of sugar entirely washed out. If the boat’s crew had done their duty, the boat would safely have reached the ship with the hogshead of sugar; and the loss thereof arose from the negligence of the boat’s crew. Upon these facts, an award was made in favor of the plaintiff. A *rule nisi having been obtained in Hillary term, for setting aside the award, the court, on cause being shown, ordered the award to be stated in a case, for their opinion.
    Campbell, for the plaintiff,
    relied on Busk v. Royal Exchange Insurance Co., ut supra. Pollock, contra, cited, among others, Tait v. Levi.
    Abbott, C. J. “ I am of opinion that the plaintiff is entitled to recover. The subject of this insurance was very special; it was on boats belonging to the ship Britannia, and on produce in said boats, or in any other craft employed in loading the ship, during her stay at St. Kitt’s. No doubt the owner, under this policy, expected to be indemnified against the loss in question. The words of the policy are very large, and although it may appear extraordinary, that the underwriters should undertake to indemnify the assurod against the negligence of the master and crew, which is a species of misconduct on their part, yet it is clear that they do so in the case of barratry, which is the highest species of misconduct of which the master and crew can be guilty. In this ease, the immediate cause of the loss was the violence of the winds and the waves. No decision can be cited, where, in such a case, the underwriters have been held to be excused in consequence of the loss having been remotely occasioned by the negligence of the crew. I am afraid of laying down any such rule; it will introduce an infinite number of questions, as to the quantum of care, which, if used, might have prevented the loss. Suppose, for instance, the master were to send a man to the mast-head, to look out, and he fall asleep, in consequence of which, the vessel runs upon a rockv or is taken by the enemy; in that case, it might be argued, as here, that the loss was imputable to the negligence of one of the crew, and that the underwriters were not liable. These and a variety of other such questions would be introduced, in case our opinion were in favor of the underwriters. I can not distinguish this case from that of Busk v. Royal Exchange Insurance Co.; there the immediate cause of the loss was fire, produced by the negligence of one of the crew ; yet the underwriters were held to be liable. Here the winds and waves caused the loss, but they would not have produced that effect, unless there had been neglect on the part of the crew. I think the underwriters are liable for the loss that has arisen in this case.”
    Bayley, J. “Here the loss arose from the sloop with the goods ^on board, having been beat to pieces by the force of the winds and waves; and the question in this case is, whether the underwriters are exonerated from the loss, by proving negligence on part of the crew, although the damage was occasioned by the perils of the sea. It is the duty of the owner to have the ship properly equipped, and for that purpose it is necessary that he should provide a competent master and crew, in the first instance; but having done that, he has discharged his duty, and is not responsible for their negligence, as between him and the underwriters. If that were not considered to be the law, the question must have frequently arisen, whether there had been proper care and attention, by the master and mariners. It is now, however, raised almost for the first time. I am of opinion, that in this case the underwriters are liable.”
    Holroyd, J. “ The rule of law is, that próxima causa, non remota, spectatur, and here the proximate cause of the loss was the peril of the sea. The question is, whether the underwiters are liable for a loss proceeding directly from a peril of the sea, but remotely from the negligence of the crew. The underwriters engage to be responsible for the barratry of the masters; they therefore engage to be responsible for the highest species of misconduct. This ease can not be put on the ground of the breach of the implied warranty to provide a master and crew of competent skill. It is sufficient if the owners provide a master and crew generally competent. There is no implied warranty that such a crew shall not be guilty of negligence. I therefore agree with the rest of the court, that the rule for setting aside the awards must be discharged.” Rule discharged.
    Bishop et al. v. Pentland, 7 Barn. & Cress. 219; S. C., 14 Eng. Com. Jj. 33. Assumpsit on a policy of insurance, on goods warranted free from average, unless general, or that the ship should be stranded.

    Bay ley, J. “ There are two questions in this case. First, was the ship stranded ? Secondly, was there such negligence in the master and mariners of the.vessel as to exonerate the underwriters from the loss? The cases of Busk v. Royal Exchange Assurance Company, and Walker?;. Maitland, establish as a principle that the underwriters are liable for a loss, the proximate cause of which is one of the enumerated risks, though the remote cause may be traced to the conduct *of the masters and mariners. Assuming, therefore, that those who had the care of the ship were guilty of negligence, in not providing a rope of sufficient strength to fasten the vessel to the shore, and that their negligence was the remote cause of the loss; still, if the proximate cause was a.peril insured against, the plaintiffs are entitled to recover.”
    Holroyd, J. “It is clearly established, that if there be an actual stranding, although it arise from the negligence of the master and mariners, the underwriters are liable.” Postea to the plaintiff.
    The same doctrine, that negligence furnishes no defense, was recognized in Smith et al. v. Scott, 4 Taunt. 126, and affirmed in Holdsworth et al. v. Wise et ah, 1 Man. & Ryl. 673; S. 0., 17 Eng. Com. L. 283; Philips v. Headlan, 3 Barn. & Ad. 380; S. C., 22 Eng. Com. L. 104.
    Judge Wright, in delivering the opinion of the court in the case of Lodwick ct ah, says, “In all such cases, the insured is held liable in law impliedly to warrant that those persons he employed shall be caroful and diligent, and that everything shall be done to prevent loss within the reach of ordinary human agency.” 5 Ohio, 435. He here assumes that the warranty of sea-worthiness (for that is the only warranty the law implies) continues during the voyage. The authorities already cited, clearly show that this warranty relates only to the time the risk attaches and the vessel sails. In addition, however, we would refer to the note in 17 Eng. Com. L. 286, where Bayley, J., is reported to have said that in the case of Shore v. Bentall (not reported) “ the court Were unanimous in thinking that the implied warranty of sea-worthiness did not extend to the ship being sea-worthy, at any port from which one might depart,” after leaving the port at which the risk attached.

      The ease of Lodwick et al. goes to the extent of discharging the insurers from all losses, for which a carrier would be liable. Wright J., says “the common law rule determines all those things negligence, which do not proceed from the enemies of the state, or the act of God. These latter are technical terms, the meaning of which is settled by repeated judicial decisions. If proper care and diligence would have avoided the act, it is not excusable as the act of God.” 5 Ohio, 436, 437. If the learned and acute judge intended to lay it down *as law, that all losses, which would charge the carrier would discharge the insurers, the position can not be maintained. A carrier has an insurable interest in the goods committed to his charge. 2 Phillips on Ins. 47; De Forest v. Ful. Fire Ins. Co., 1 Hall’s S. O. (N. Y.) 100. And he may insure generally, without describing his interest as carrier. The case of Crowly et al. v. Cohen, 3 Barn. & Ald. 488; S. C., 23 Eng. Com. D. 125, is conclusive on this point. It was an action on a policy, on goods generally, on board canal-boats. The plaintiffs were carriers, by canal-boats; but that fact did not appear in the policy. One of their boats, on which they were carrying the goods of a third person, was sunk in the canal. The goods were damaged and the plaintiffs, in consequence, were obliged to make compensation to the owners, and were also put to other expenses. At the trial before Lord Tenterden, C. J., a verdict was taken for the plaintiffs, subject to the opinion of the court; it was afterward held by Lord Tenterden, C. J., and Littledale, Park, and Patterson, Js., that the plaintiffs were entitled to recover. In this case the very loss for which the plaintiffs recovered, was a loss for which, as carriers, they were liable, and for which as carriers they had paid.
    From these authorities it is clear that the English courts sanction no such doctrine, and sustain no such reasoning as that contained in the opinion of Judge Wright. In that opinion Phillips on Insurance was cited in its support. 2 Phillips on Insurance [published 1834], 82; also Hughes on Insurance, 164,165, chap. 9, may now be referred to to show that negligence furnishes no defense. That opinion can rest only on the New York decisions and the dicta of the judges of the Massachusetts court, called forth by those decisions. The case of Grim v. Phcenix Ins. Co. decides that the insurers are not responsible for the fault, negligence, or mismanagement of the master or mariners, not amounting to bar

      ratry, and that a loss occasioned by the mismanagement of the master or mariners, does not amount to barratry; and Chancellor Kent lays it down, in accordance with the New York authority, that the ignorance, or inattention of the master, or the mariners, is not one of the perils of the sea, and that therefore the insurers are not liable for a loss occasioned by such ignorance or inattention. 3 Kent’s Com. 299. But, in speaking of Busk v. Royal Assurance Company, in the second edition of his Commentaries, *he says, that this decision is subsequent to that of Grim v. Phoenix Ins. Co. 3 Kent’s Com. 2 ed. 304, and in note g, on same page, he refers to Patapsco Ins. Co. v. Coulter, 3 Pet. S. C. 222, and says, “the decision was according to the English rule, that where the policy covers the risk of barratry, and fire is the proximate cause of the loss, the insurer is liable, and the defense that negligence was the remote cause, is inadmissible. The weight of authority is, therefore, decidedly against the New York decision." 3 Kent Com.’s 304, note g.

    But the counsel for the defendants contend that inasmuch as barratry is not one of the enumerated perils, in the present policy, the defense of negligence is admissible, and in support of that defense, the cases of Patapsco Ins. Co. v. Coulter, in 3 Pet., and of Howell v. Cin. Ins. Co., 7 Ohio, 276, are relied upon. We contend, that so far as the question of negligence is concerned, it is immaterial whether barratry be named as one of the perils or not, because barratry does not embrace negligence. It is defined by Chancellor Kent, to be fraudulent conduct on the part of the master .or mariners, to the injury of the owner, and without his consent. It includes every breach of trust committed with dishonest views. 3 Kent’s Com. 305. The definition in Abbot on Shipping, 138, is substantially the same. In the case of Earle v. Rowcraft, 8 East, 126, Lord Ellenborough .went into a full definition of Barratry, and he defines it to be “ a breach of duty in respect to the owners, with criminal intent, or ex maleficio." Judge Story, in his edition of Abbott on Shipping, 138, n. 3, says, that “the doctrine of.Earle v. Rowcraft, has been admitted into our commercial law.” Vide cases there cited. Indeed, the case of Grim v. Phoenix Ins. Co., upon which the defendants rely, declares “ it to be well settled, that an act, to be barratrous, must bo done with & fraudulent intent, or ex maleficio. Barratry is a fraudulent breach of duty, in respect to owners. This is the established doctrine, both in the English courts

      and our own," per Thompson, J., an'd it was upon the very ground that barratry extended only to eases of fraudulent intent, that the insurers were held not to be liable in that case; barratry being one of the perils insured against, and- the loss having arisen from negligence, and not fraud.

    The opinion of Mr. Justice Bayley, in the case already cited, from 2 B. & A. 72, shows that the term, as used by the French ^writers, and extending to fault as well as fraud, has never been adopted by the English law. Vide also 2 Phil on Tns. 181, 182, where it is said, “If the English and American definition of barratry is adopted, and it be limited to cases of fraud, or of negligence and mismanagement, so gross as to bear a fraudulent character, then, the underwriters.may be liable for losses by the perils insured against, occasioned by the carelessness, negligence, mistakes, and imprudence of the master and crew, though barratry is not one of the perils insured against. If underwriters are to be held liable for the.losses in question (i. e., losses by negligence, etc.), their liability would seem to rest upon this ground (i. e.’ that the perils insured against are the proximate cause of the loss), whether the policy covered barratry or not, since it would be going a great length to put a new construction upon the peril of barratry." But the Supreme Court of the United States has decided the precise question now before the court. At its last term, it was decided, that a loss by fire, occasioned by the mere fault, or negligence, of the assured, or his agents or servants, and without fraud or design, is a loss, within the policy, upon the general ground that fire is the proximate cause of the loss, and that, too, although the policy does not cover barratry." Columbia Insurance Co. of Alexandrian. Lawrence, 10-Pet. S. C. 508. The opinion of the-court was delivered by Mr. Justice Story. He says (p. 517) : “ The next question is, whether a loss by fire, occasioned by the fault and negligence of the assured, their servants and agents, but without fraud or design on their part, is a loss for which the underwriters are liable. In regard to marine insurances, this was formerly a question much vexed in English and American courts. But in England the point was completely settled, in Busk v. Royal Exchange Insurance Co., 2 Barn. & Ald. 82, upon the general ground that causa próxima, non remota, spectatur; and therefore, that a loss, whose proximate cause is one of the enumerated risks in the policy, is chargeable to the underwriters; although the remote cause may be traced to the negligence of the master and mariners. Although in the policy, in that case, the risk of the barratry was also assumed by the underwriters, yet it is manifest that the opinion of the court procee Is upon the broad and, general ground. The same doctrine was afterward affirmed in Walker v. Maitland, 5 Barn. & Ald. 171, and Bishop v. Pentland, 7 Barn. & Cress. *219, and is now deemed incontrovertibly established. The same doctrine was discussed and adopted by this court, in the case of the Patapsco Insurance Co. v. Coulter, 3 Peters, 222.”
    In the case of Howell v. Cincinnati Ins. Co., it appears from the report, (7 Ohio, 277,) that the question was not properly presented for decision by the court in bank. Wood, J., who delivered the opinion of the court, say's, “ By a reference to the minutes of the judge who presided on the trial, it appears that the law was given to the jury, as the counsel for the motion claims that it is.” And after stating the law, as given to the jury, he concludes by saying “that Park, in his Treatise, and Kent, in his Commentaries, and Judge Johnson, in 3 Peters, fully sustain the principio laid down. The case then went to the jury, under circumstances as favorable as the counsel of the defendant required.” Ib. 278. The Supreme Court of the United States have, in the case just referred to, in 10 Peters, put their construction on the case of 3 Peters (cited in the case of Howell v. Cincinnati Ins. Co., and declaring it to be immaterial whether the policy cover barratry or not, proceeded on the general ground, that causa próxima, non remota, specta.tur; and held that a loss, whose proximate cause is one of the enumerated risks, is chargeable to the underwriters although the remote cause may be traced to the fault and negligence of the assured, their servants or agents. Will the defendants say that the losses in the cases in Peters’ Reports were losses by fire, and are, therefore, distinguishable from the ease now belore the court. We apprehend that when the loss arises from any of the perils enumerated in the policy, whether that peril be fire or water, the rule as to negligence must be, and is the same. In the case-of Walker v. Maitland, already cited, in which the loss was occasioned by the boat running ashore, where she was beat to pieces, Abbott, C. J., says, “ 1 can not distinguish this case from Busk v. Royal Assurance Co., there, the immediate cause of the loss was fire, produced by the negligenco of the crew'. Tet the underwriters were held to be liable. Here, the winds and waves caused the loss, but they would not have produeed that effect, unless there had been neglect on the part of the crew. I think1 that the underwriters are liable for the loss.” 7 Eng. Com. Law, 61. Phillips says: “ There seems*to be no ground to distinguish the case of fire from any other peril covered by the policy.” 2 Phil, on Ins. 182.
    Another question was reserved in this case, which depends on the construction of the following clause contained in the policy: “If the boat and cargo should stop, and the interest therein be changed, at or before reaching Louisville, one and one-fourth per cent, of the premium shall be returned.”
    The premium paid was two per cent., and amounted to two hundred dollars. The jury, in their verdict, allowed the plaintiffs the one and one-fourth per cent., being the sum of one hundred and twenty-five dollars, the boat and cargo having stopped, and the interest therein having been changed before reaching Louisville, by a sale of the same at Cincinnati.
    The defendants stipulate that there shall be a return of a part of the premium in the event of a change of interest; and point out no particular mode by which that change shall be effected. They must, therefore, be understood as engaging to make such return when the change of interest takes place from any cause whatever.
    The plaintiffs, therefore, ask judgment for one thousand seven hundred and seventy-nine dollars thirty-four cents, the amount found by the jury, with interest thereon from the 29th day of October, the day on which the verdict was rendered.
    H. Stanbery, in reply:
    This was a marine policy against the perils of the rivers, upon boat and cargo, from Duncan’s Falls, on the Muskingum, to New Orleans, without any clause against barratry or negligence. . •
    I. The principal question reserved for decision is whether the founder of the boat, occasioned by the want of ordinary care in the master or hands, is within the policy.
    This identical question was settled by this court, against the assured, in Lodwick v. Kennedy, 5 Ohio, 434, and affirmed on the circuit, by Judges Lane and Wright, in Gazzam v. Ohio Insurance Co., Wright’s S: C. 202, and by this court in Howell v. Cincinnati Insurance Co., 7 Ohio, 276.
    The.plaintiffs ask the court to reconsider the question, and claim that these decisions establish a rule contrary to the English and American cases, especially to some of the latter cases in both countries, which were not before the court when these decisions were had. These late cases are Busk v. Royal Exchange Insurance Co., 2 Barn. & Ald. 72 ; Walker v. *Maitland, 5 Barn. & Ald. 171; Bishop et al. v. Pentland, 7 Barn. & Cress. 319, in England; and Columbia Insurance Co. v. Lawrence, 10 Pet. 508, in the United States.
    The two first-mentioned cases were in fact before this court in the case of Gazzam v. Ohio Insurance Co., above referred to. They did not affect the decision of the case, for it turned upon a known distinction first recognized by this court in Lodwick v. Kennedy, and since adhered to, which is this: That where a marine policy contains no insurance against the barratry of the master and crew, it does not cover their negligence.
    The counsel for the defendant have found no case, English or American, which establishes a contrary doctrine. No case is cited in which the policy does .not contain the barratrous clause; and in those which are cited, it will be seen that the liability for mere negligence results impliedly'from the undertaking against barratry; and we are left to conclude, that if the undertaking was not assumed by the underwriter he would not be held liable.
    In Bush v. Royal Exchange Insurance Co., 2 Barn. & Ald. 72, there was a clause against barratry. Bayley, J., reviews the doctrine of insurance of the civil law, and says, “The fair result of all these authorities is this: that the underwriters were liable for a loss by fire occasioned by the negligence of master and mariners, provided they insure against barrat^ — that term being by the French writers used in its larger sense, and comprehending negligence as well as willful misconduct; but inasmuch as the term barratry is used in our policies in a more limited sense, as applying only to the willful misconduct of the master and mariners, the authority of Emerigon affords no ground for our decision in this case. We must, therefore, endeavor to collect the meaning of the contracting parties from the terms of the policy itself, and in considering whether the assured, claiming for a loss by fire, is to have that claim disallowed on the ground that the fire was occasioned by the misconduct of the master, we must look to the other terms of the policy, and determine from them whether the assurers, in other instances, are responsible for the misconduct of the master; and when we find that they make themselves answerable for the willful misconduct of the master, in other cases, it is not too1 much to say that they meant to indemnify the assured against fire proceeding from the negligence of the master and mariners. I am, therefore, of the opinion, in this case, that the assured are entitled to recover,” etc.
    Here the liability for negligence is deduced exclusively from the' liability for barratry; and certainly, where the insurers expressly agree to answer for willful misconduct, it is reasonable to infer that-they intended to be answerable for mere negligence.
    In Walker v. Maitland, 5 Barn. & Ald. 171, the same liability for negligence is made to result from the clause against barratry. Abbott, C. J. “No doubt the owner under this policy expected tobe indemnified against the loss in question. The words of the policy are very large, and although it may appear very extraordinary that the underwriters should undertake to indemnify the assured against the negligence of the master and crew, which is a species, of misconduct on their part, yet it is clear that they do so in the-case of barratry, which is the highest species of misconduct,” etc.
    Holroyd, J. “ The underwriters engage to be responsible for the barratry of the master, they therefore engage to be responsible for the highest species of misconduct.”
    In Bishop et al. v. Pentland, 7 Barn. & Cress. 219, the policy is* not set out. The ship was lost through carelessness of the mate, by stranding, which was one of the specified risks. Upon the authority of the two preceding cases the insurer was held liable. We are-left to presume of this policy, that it contained the clause against barratry, which is common to the English marine policies.
    These are all the English cases, cited by the plaintiff’s counsel, that bear upon this question. The only American case relied upon, is the Columbia Insurance Company v. Lawrence, 10 Pet. 508.
    That was an action upon a land policy against fire, so that the question in this ease could not arise.
    At page 517, Mr. Justice Story, in considering the point whether negligence of the assured or their servants, would excuse the underwriters, refers, in passing to the same question upon marine policies. He speaks of it as having once been a vexed question, but as settled in England in the case of Busk v. Royal Exchange Company, above quoted, and he says that, although the clause against barratry was in the policy, that it was yet “ manifest that the opinion of the court proceeded *upon the broad and .general ground and further, that the case of the Patapsco Company v. Coulter, 3 Pet. 222, adopted the same ground.
    With all deference to the learned judge, that is not manifest. If •we allow the court in Busk v. Royal Exchange Company to speak for themselves, we find that the responsibility for negligence is made to flow from the undertaking against barratry.
    The case of the Patapsco Insurance Company v. Coulter, referred to by Mr. Justice Story, came before the court upon error, in the instructions given by the circuit court. There was an insurance against barratry, and the defense was the negligence of the captain. Mr. Justice Johnson, in delivering the opinion of the court, says, •“As to the refusal to instruct the jury that their verdict must be for the insurers, if they believe the loss proceeded from the carelessness or negligence of the captain, it is obvious, since barratry is insured against, that the court must not be held to have affirmed that fire proceeding from negligence, was a loss within the policy, independently of the risk of barratry, but that negligence was no defense where barratry was insured against.” Again, at page 234, he says, “ It must be remembered that the general question” (that is of liability for negligence) “ where there is no insurance against barratry, need not be here considered.”
    Surely, Mr. Justice Story is mistaken in supposing that in this case the court adopted the broad and general ground of liability for negligence, without reference to the barratry clause, when it is evident they more than once, in the opinion, carefully distinguish the case from that of a policy not containing that clause.
    At page 233 of the same case, Mr. Justice Johnson, referring to Busk v. Royal Exchange Company, speaks of it as having affirmed the principle, “ that where an insurance is against barratry, a loss arising from fire originating in negligence shall be borne by the underwriters.” So that his understanding of that case was that the decision, instead of proceeding upon the supposed broad and general ground, was predicated upon the barratry clause.
    In the case of Andrews, etc. v. Essex Fire Company, 3 Mason, 26, which came before Judge Story in 1822, he uses this language, “ Whether in any case the underwriters are liable for a loss by any of the perils of the policy, the remote cause of which .is the nogligencé and misconduct of *the master and mariners, not amounting to barratry, is a vexed question, upon which opposite •opinions have- been expressed by very distinguished courts. In England the point has recently received, after a solemn discussion, a decision in the affirmative, 2 Barn. & Aid. 72, though it is not difficult to perceive that the former opinions inclined the other way. In New York the point has been unequivocally settled in the negative ; and that appears to be the leading opinion also in Massachusetts. The foreign jurists generally concur in exempting the underwriters from losses by the fault of the master, unless that risk is expressly assumed. In this diversity of doctrine I desire to suspend my own judgment until the question is absolutely necessary to be decided.” Certainly, upon a question of so much difficulty in the mind of the learned judge, it would be unjust to him, to impute to a dictum subsequently thrown out where it was not necessary to decide the question, the authoritative force of a deliberate opinion.
    The New York and Massachusetts cases to which the court have ••been so often referred heretofore, are upon policies containing the clause against barratry. Even with that clause, they excuse the underwriter for liability from negligence. In that they are at variance with the English cases, and it is in reference to the conflict of opinion on that point, that it is said, in the note to the last edition of Rent’s Com., vol. 3, p. 304, note g, that the weight .of authority is against the New York decision.
    Inasmuch, however, as the undertaking against the barratry of the master and crew has not been assumed by the defendants in the case at bar, we are not put to a choice between nicely balanced opinions. The defendants have in no shape made themselves responsible for the misconduct, willful or negligent, of the agents and servants of these plaintiffs — there is no such stipulation in their contract. Is it right to put it in by judicial construction ? The argument in favor of such construction is this: The perils of the river are insured against. If a boat is run upon an island by the gross negligence of the hands, the current of the river is the causa próxima, the negligence of the crew the causa remota; and because the proximate and not the remote cause is regarded, the insurers are liable. If that rule is sensible, how does it come that it does not apply in case of willful misconduct, without insurance against barratry. If the master purposely run the boat on the ^island, it will not be pretended that the insurers are bound ; and yet the causa próxima is the same as in the case of negligence. The perils insured against on our western rivers are quite various enough without superadding to them a liability for the want of ordinary care in the master and hands. In sea risks this liability may be taken with some assurance that gross negligence will not occur; for the law of self-preservation will prevent it — but in the navigation of our waters a wreck is rarely attended with the loss of life.
    The case of Lodwiek et al. v. Ohio Insurance Company was> decided more than three years before this policy was executed, and had been twice affirmed by this court. The rule so settled had become the law of western insurance, and upon the faith of that rule, with an unhesitating reliance upon its stability, this policy was-drawn so as to come within it. If it had been supposed that by any possibility the risk of negligence was to, be borne by the company, we may suppose that a much higher premium would have-been required.
    It is asking very much of a court to change a decision so im-portant in its consequences — so repeatedly affirmed — so generally, known and relied up on; and that, too, upon nothing stronger than-the dictum of a judge whose opinion has hung in doubt upon the very question, and who has once entered a caveat against his own-judgment upon it, until constrained to give it in a proper case.
    2. If the court incline against the new trial, there is then a. question as to whether the premium of one and one-fourth or two per cent, shall be allowed. The voyage was at and from Duncan’s Falls to New Orleans, at the premium of two per cent., with a provision, “ if the boat and cargo should stop, and the interest therein be-changed, at or before reaching Louisville, one and one-fourth percent. of the premium shall be returned.” The stoppage and change-of interest here provided for, are obviously very different from a-wreck and loss of property. A voluntary sale working a cessation of risk without loss to the insurers is clearly intended. To suppose- that it was the intention of this clause to provide for a return of part of the premium in the event of loss above Louisville, or, in other words, that the insurers should stipulate to pay a-premium for an early loss, is to force the language used beyond its true meaning, and to impute to this company the want of ordinary discretion..
   * Judge G-rimke

delivered the opinion of the court:

This was an action of assumpsit on a policy of insurance on tháboat and cargo of the plaintiffs from Duncan’s Falls, in the Muskingum, to the city of New Orleans. The boat left the Falls, and while pursuing her voyage, was wrecked on Cheadle’s Island in the Muskingum river. On the trial a great deal of testimony was ■exhibited in relation to the condition of the boat, the skill and ■capability of the captain and crew, and their conduct immediately preceding the disaster.' A verdict was found for the plaintiffs, -and a motion was made for a new trial, because the testimony •showed that although the immediate cause of the loss was a peril of the river, yet that this accident might have been prevented by ■the exercise of a proper degree of care and diligence on the part •of the crew. And thus is presented the question so much discussed of late years, in the English and American courts, whether the proximate or the remote cause of the loss is to be taken into consideration in deciding on the liability of the insurers. The question has already been twice determined by this court, in Lodwick v. Ohio Ins. Co., 5 Ohio, 433, and again in Howell v. Cincinnati Ins. Co., 7 Ohio, 281, in both which it was held that the remote ■and not merely the proximate cause of the loss is to be regarded in order to settle the respective rights of the insured and the underwriters. And such I apprehend, was, until very recently, understood to be the law in Great Britain. Thus in Law v. Hollingsworth, 7 D. & E. 160, a ship bound to the port of London, which had received a pilot on board, but dropped him before she reached her mooring in the river Thames, after which an accident happened and she was sunk, it was held that for this negligence in not having the pilot on board the insurers were discharged. The exercise of foresight and skill in an emergency where the vessel is endangered, and where it is not the usage to receive a pilot, ■stands in the place of the pilot; and I do not see but what, if the want of one is sufficient to defeat the right of recovery, that the want of the other should have the same effect also. It is true the mind, fertile in expedients, may make distinction between the two •cases, but I can see none broad enough to -authorize the application of a different rule to- them. Rich v. Parker, 7 D. & E. 705, was decided on the same principles as the former case. The vessel was warranted to be American, but the master having neglected to obtain a passport for a part of the voyage, in *conformity with the treaty between France and America, this was .held to be a good defense against a loss arising from capture. It is doubtful whether the want of a pilot in the first case, or the want of a passport in the second, were at all instrumental in the-loss. It was a mere possibility, especially in the latter casé, so-that a cause the most remote imaginable, was taken into consideration in deciding on the liability of the underwriters. It is unnecessary to say whether the principles may not have been pushed too far in the last case; suffice it to say, that the English courts-have been in the habit of looking beyond the mere peril insured against; it has not been sufficient that a vessel was stranded or captured, where the policy, covers a loss of this kind. The whole chain of causation which may have led to-the catastrophe, so far as it is traceable by the mind, is considered as of the utmost moment in determining the respective rights of the parties.

The subject has undergone a good deal of investigation in the American courts, and it has generally been held that insurers are not responsible for the negligence or misconduct of the master or mariners, unless they, amount to barratry, and unless a clause against barratry is inserted in the policy of insurance. Thus, in Green v. Phoenix Ins. Co., 13 Johns. 451, where a vessel was insured among other risks against fire, and during the voyage a seaman carelessy put a lighted candle in the binnacle, which took fire and communicated to some powder, in consequence of which the vessel was blown up- and lost, it was held that the insured were not entitled to recover. No case can be more directly in point, for the purpose of establishing the position that the remote, and not merely the proximate cause of the loss, is to be taken into-consideration, in ascertaining whether the peril insured against has occurred. So also in Cleaveland v. Union Ins. Co., 8 Mass. 308, where the vessel was captured in consequence of the negligence of the master in leaving the ship’s register in the Isle of France, it was held that it 'was not enough that a loss by capture was one of the the risks insured against; that the cause of the capture should be inquired into, and if that was in reality thenegleet of the master that the underwriters were not responsible. These cases were discussed, both upon principle and authority,', and although a principle may sometimes be prematurely decided, that is, before a sufficient experience of all the inconvenience». which it may give rise to, yet this can not be said to *have been the case on these occasions. Indeed, I believe it may be .asserted, that until some recent decision in the English courts, the-whole current of British and American authorities were consistent and uniform on this subject. Perhaps the contradiction which is so often to be found in the books on the same question of law, is as much to be ascribed to the mere ingenuity of the human mind, in inventing and fancying new views as to the acquisition of a greater share of wisdom and experience. And hence, it becomes the bounden duty of a judge not to be too easily captivated by late authorities, because they declare a different rale from what had been before established, but to ascertain how far they are founded in fair and legitimate reasoning, and how far they are the result of a love of refinement, which is sometimes apt to seize the •mind of the greatest and most practiced inquirer after truth.

The recent English cases are Busk v. Royal Ex. Ins. Co., 2 B. & A. 72; Walker v. Maitland, 5 B. & A. 171, and Bishop v. Pentland, 7 B. & C. 219. The first of these cases it is not only difficult to reconcile with any rule of law previously established, but what is more to be regretted, it is difficult to reconcile it with itself. The loss arose from the negligence of the mate in lighting a fire in the cabin. There was a clause in the policy against barratry; and Bayley, J., after investigating the doctrine on that subject, and showing that although the term barratry is, by the French writers, used in a more large and comprehensive sense than it is -in the English law, inasmuch as the former understand it to mean negligence as well as willful misconduct, says: “ When we fi-nd that the insurers make themselves answerable for the willful misconduct of the master, it is not too much to say that they meant to indemnify the assured against fire proceeding from the negligence of the master and mariners,” which is precisely the reverse of the conclusion to which one would have supposed that his mind should have been brought. For if the word barratry does not comprehend negligence, how can it be argued that a warranty against the former only amounts to a warranty against the latter also. It is not like a genus containing the species. For barratry and mere negligence are not different in degree; they are different in kind. The argument would have been irresistible the other way; if the judge had come to the conclusion that, as the parties had been careful to guard against willful misconduct only, that it was not *their intention to protect against negligence; that if the express warranty did not absolutely extinguish all implied warranties which might be supposed to arise out of the policy; that at any rate it was not allowable to infer the existence of the latter from the existence of the former only. It is not because the general principles of law authorize a recovery against underwriters where negligence is the remote and real cause of the loss, but a secret intention to warrant against it is attempted to be inferred, because the policy of insurance contains a warranty of an entirely different import. At any rate, it must be admitted that the two views are so confounded together that it is impossible to say what would have been the decision of the court if there had been no clause against barratry in the policy.

The case next in order is Walker v. Maitland. The loss arose from the vessel having been beaten to pieces by the force of the winds and waves — an accident which would not have happened if the crew had done their duty, but the mate went to sleep, and soon after the whole of the watch on duty went to sleep also. Abbott, C. J., says: “No doubt the owner, under this policy, expected to be indemnified against the loss in question.” An expectation.to be indemnified and a right to be indemnified are, however, very different things, though it is difficult to see how even the former is established, for he goes on to say that “ it may appear extraordinary that the underwriters should undertake to indemnify the assured against the negligence of the master and crew,” and then concludes as in the former ease, that they do so because barratry is a protection against willful misconduct; that is; barratry means negligence, and yet negligence is not comprehended within the meaning of barratry.

He proceeds to say that he is afraid of laying down the rule that negligence in the crew will discharge the underwriters; “it will introduce an infinite number of questions as to the quantum of care which, if used, might have prevented the loss.” This, then, is one of the difficulties felt by the English courts, and which has occasioned a departure from the earlier cases decided by them. But is this difficulty really greater than occurs in a multitude of other eases, which are continually arising, in which the understanding is tasked, and which, in order to be correctly decided, demands the exercise of a sound judgment and clear discrimination ? The whole law of ^bailment, which is of such constant application, depends, in all its ramifications, upon the greater or less degree of care or negligence; and yet no one has ever ventured to sweep away its nice and intricate distinctions, merely because it required much thought in order to apprehend and apply' ‘them.

The next case is Bishop v. Pentland, 7 B. & C. 219. The ship was lost by stranding, through carelessness of the mate. There •does not appear to have been any clause in the policy against barratry. And yet Bayley' says, “ the two former cases establish as a principle that the underwriters are liable for a loss, the proximate •cause of which is one of the enumerated risks, though the remote •cause maybe traced to the conduct of the masters and mariners.”. And yet in both the former cases, the greatest reliance ,is placed upon the insertion of the clause against barratry. It would not, ■perhaps, be fair to say of these cases that they are carelessly and loosely decided, when one considers that the king’s bench have now a docket of five hundred cases to dispose of, instead of, as in the time of Lord Mansfield, one of only forty. But it must be admitted that they are not so convincing and satisfactory as could be desired.

In the Columbia Ins. Co. v. Lawrence, 10 Pet. 508, the late determinations of the English courts appear to be approved of. That was an insurance on a house, as to which it has sometimes been said that the law has always been understood to be that the proximate cause of the loss is alone regarded, whatever it may have been as to marine insurances. Whether this is truly the case, it is entirely'unnecessary to decide. It is admitted that there is not a -single case to be found in the books in which the point has been •determined. Mr. Justice Story, in the case last cited, says, “it is manifest that the opinion of the court in Busk v. Anderson proceeds upon the broad and general ground ” that the proximate, and not the remote cause of the loss is regarded; and yet, such does not seem to be the fact, from the examination which I have given to that case. Indeed, it is more than doubtful, whether any such decision would ever have been made if the clause against barratry had not been inserted. All these remarks, to which I have .alluded, in the opinion of the court in 10 Peters, were, however, ■clearly extrajudicial, as the peculiar wording of the policy was alone deemed sufficient to authorize a recovery against the underwriters.

*It is evident that in marine and river insurances, there is a closer connection between the insured and the crew who man the vessel than there can possibly be between these last and the insurera. The crew are in reality the agents of the insured, and are entirely independent of any control from the insurers. It. will contribute, therefore, much more to the maintenance of per- ■ feet good faith, if the latter are discharged from liability, where the loss of the vessel has been occasioned by the negligence of the mariners. If, because the insured have selected a crew apparently capable, they are, therefore, to be absolved from any further care, the inevitable consequence will be that less care-will be used in the selection of the crew. Hands will generally be upon their best behavior at the time they are first employed, and it will be easy to say, in answer to any defense which the underwriters may make, that all the duty which was imposed upon the insured, in the first instance, has been discharged. The unseaworthiness of a vessel is sometimes not tested until she has been at sea many weeks and has encountered a storm. And in the same manner, the unseaworthiness of a crew is frequently not ascertained until some emergency has occurred which demands the exercise of self-possession, prudence, and discretion. In Andrews v. Essex Fire-Ins. Co., 3 Mason, 26, the same judge, who delivered the opinion in the case in-10 Peters, admits that this is a vexed question upon which opposite opinions have been expressed by very distinguished courts; and he also admits that the former decisions in England are not easily reconcilable with later ones.

In this state of the matter, it would seem to savor too much of vacillation and instability, which should forever be avoided in the determination of important principles of law, if a rule were now to be declared different from that which has hitherto been established to be the law in the courts of Ohio. It is admitted that different courts have taken very different views of this question, and it must also be admitted, therefore, that it is a question about, which the most enlightened understandings may be expected to-differ. That which is of the greatest importance, is that the law should be definitively’settled; parties can then accommodate their conduct and agreements in conformity with it, and in no event can they reasonably complain that they have been deceived. And, on the whole, the conclusion is that insurers are not responsible-. *for the negligence of the master and crew where this was> the remote, though the peril insured against was the immediate cause of the loss.

Another question was made, whether there should be a return of any part of the premium. The general rule is, that if the-risk has once commenced, there shall be no apportionment or return of premium. The stipulation contained in this policy provides for a contingency which has never occurred.

New trial granted.


source: Caselaw Access Project

author: Judge Hitohoock

license: Public Domain

text:
    President, Directors, and Company of the Bank of Chillicothe v. The Mayor and Commonalty of the Town of Chillicothe. — John Woodbridge, Cashier of the Bank of Chillicothe v. The Mayor and Commonalty of the Town of Chillicothe.
    Where a town corporation is invested with the power's usually conferred upon-such bodies, a contract borrowing money for the use of the town is obligatory and binds the corporation for repayment, although no express-power to borrow money be given in the law of incorporation.
    These two cases originated in the court of common pleas of Boss county, from which they were appealed to this court.. Although not precisely alike, they both depend upon the same-principle.
    The actions are debt. The declaration in the. first case is upon a written instrument, of which the following is a copy :

      “The State of Ohio, Boss County, Mayor's Office, Chillieothe, ss.

    “ I have borrowed of the president, directors, and company of the Bank of Chillieothe five hundred dollars, for tbe use of the-corporation; and in the name of the mayor and commonalty of the town of Chillieothe, do promise to pay the same at their banking house, in six months from the date hereof. In testimony whereof, I, William Steele, mayor of the town of Chillieothe, have-hereunto set my hand and affixed the seal of the said corporation, this 19th day of October, in the year of our Lord, one thousand eight hundred and thirty. William Steele.”
    The second suit is upon three several instruments which are? alike in all respects, except as to the time of payment, the same-being payable in two, three, and four years after date. Of one of these instruments, the following is a copy :
    *« The State of Ohio, Boss County, Mayor’s Office, Town of Chillicothe, ss.

    “Whereas, the mayor and commonalty of the town of Chillicothe, on the 8th instant, pursuant to a vote of the citizens of said town, directed the undersigned to issue certificates or evidence of debt in stock, principal amount two thousand dollars, bearing interest, payable and redeemable at the Bank of Chillicothe, in ten equal installments, the first to be redeemed in the year 1832 ; the money to be applied toward the improvement of Water street in said town, by a change of the Ohio Canal line as .contemplated by the citizens aforesaid.
    “Now, therefore, these presents testify that, pursuant to the promises aforesaid, we, the mayor and commonalty of the town of
    • Chillicothe, do hereby promise to pay at the Bank of Chillicothe aforesaid, to John Woodbridge, Esq., cashier thereof, or to his successor in office, within two years from this date, two hundred dollars, with interest thereon, at the rate of six per cent, per annum, payable semi-annually from the date hereof. In 'testimony whereof, I, William Steele, mayor of the town of Chillicothe, have hereunto set my hand and affixed the seal of the corporation of
    • Chillicothe, this 12th day of July, A. d. 1830. ■
    “William Steele.”
    All these instruments were under the seal of the corporation.
    In each case the defendants having craved oyer, demurred generally.
    Wm. Allen, in support of the demurrer :
    The pleadings in these two cases present the same and but one general question, to wit: Have the mayor and commonalty of the town of Chillicothe the power under the charter to borrow money ?

    It being conceded that the power is not expressly granted. Hoes it exist by implication from other powers which are expressly granted as incident to those powers?
    I shall assert and attempt to maintain the following propositions :
    1. That the delegated power to borrow money is, in its nature, •.& high, independent, substantive, sovereign power, and can, therefore, in no instance pass from its primitive source but by express grant.
    2. Thatif tbe power be not in its nature a substantive *power, and if it may be fairly referable to the class of implied powers, yet it could pass by implication only in the case of a government possessing by express grant other high, sovereign powers, to some one of which this power could be drawn by necessary implica-, tion; and that a mere municipal corporation has not, nor ever can have, even by express grant, such a sovereign power as will draw" this after it as an incident.
    3. That if the power to borrow money may be taken by implication as incident to other powers expressly granted to a municipal corporation, yet it can not be in the instance of the corpora-tion of Chillicothe, because the amendatory act expressly defeats such implication by removing the necessity for a resort to such a power, and therefore negatives its exercise.
    These propositions the counsel proceeded to elucidate and maintain in a very elaborate argument, in which he examined the nature of government generally, and of the government of the United States and of the several states. He insisted that it was • only in virtue of power expressly granted that ‘the United States could borrow money. That it was the want of this power and the power to raise money annually, in the confederation, that led to the adoption of the constitution; and to sustain this position, he • cited the numbers of the “ Federalist.” He contended that to the state “the power is expressly given, because that is among the sovereign powers of legislation, and because all legislative power is expressly given in the first article of the constitution, which declares that the legislative authority of the state shall be vested in a ■ general assembly.”
    He also descanted upon the difference between substantive and incidental powers at some length, and examined critically the - several acts incorporating the town of Chillicothe. In support of his proposition, he cited 2 Kent’s Com. 239, 240; 2 Craneh, 127; 15 Johns. 358 ; 3 Barn. & Aid. 1; 4 Wheat. 573; 12 Wheat. 64; 5 Ohio, 393. He also referred to several acts of the state legislature expressly granting this power to municipal corporations, as containing a legislative interpretation upon the subject, and came to - the conclusion that the corporation had no power to borrow this-money; and, therefore, although they have the use of it, still they were under no obligation to pay it.
    Swan, of counsel for the plaintiffs,
    insisted that a corporation possessed not only the power expressly granted, but all others *are incidental thereto, which are necessary to carry the powers thus granted into effect. 2 Kent’s Com. 239; 4 Wheat. 316; 8 Wheat. 339; 4 Wheat. 636; 15 Johns. 358.
    He admitted that the power to borrow money was not expressly granted to the mayor and commonalty of Chillieothe, but insisted it was incidental to, and necessary to carry into effect the powers which were granted. These powers he enumerated. He cited in addition 6 Wheat. 595; 8 Wheat. 350; 10 Johns. 706; 7 Conn. 550.
    Upon the hypothesis that the corporation had no power to borrow this money, he insistéd that this was no defense to the action. It might be a reason why the charter should be forfeited, but could be none why the debt should not be paid. 16 Mass. 94.
    Leonard,
    m reply, submitted an argument at length, in which he sustained the propositions of his associate counsel, and with ■much force attempted to refute the arguments of the opposing counsel.
   Judge Hitohoock

delivered the opinion of the court:

These cases are of great importance, on account of the principles involved, and have been argued by counsel with the ingenuity and ability which the importance of those principles demands. It must be admitted, too, that the cases are of that description where there is danger that a court, from its earnest desire to do justice, may be led astray upon points of law,' notwithstanding all its anxiety to the contrary. For it is certain that if the defense be legal, it is manifestly unjust, and such a defense as no court would sustain unless impelled to it by some well-settled and unbending principle of law. The corporation of Chillieothe have borrowed the money, for the recovery of which these suits are brought. In one instance it was done in pursuance of a vote of the people of the town constituting the corporation. This money has been used, as we are bound to believe, for the interest of the •town ; and non-payment is resisted, upon the ground that this same corporation had not the power to borrow the money, and that in doing so, they violated their charter. The language of the defendants to the plaintiffs is in substance this : True, you loaned to us this money, you did it at our earnest solicitation, we have used it for our own benefit; but we have no power to borrow, we violated our charter in so doing, and we will take advantage of this *our own wrongful act, to protect ourselves from the paynaent of that which is your honest due. No. rule of decision which will lead to such manifest injustice ought to be adopted without careful examination and much deliberation.

These cases, as now presented, are believed to be of the first impression, as counsel, with all their research, have not been able to produce a decision in point. As between natural persons, it is true that inability to contract constitutes a defense. Hence the pleas of infancy and coverture are sometimes interposed to avoid the payment of a debt which an honest man or woman might be desirous to discharge. And such pleas are formed in law, not so much on account of their abstract justice, as from considerations of general policy. But although corporations have existed for centuries, still we have found no case in which inability to contract has been set up to avoid the payment of their debts. There are, it is true, many cases where the powers of particular corporations have been investigated, and where they have been held to have exercised power not granted to them, in consequence of which their acts were void; but these have been cases where the corporations themselves have been striving to set up or enforce powers, not where they have set up as a defense that they themselves had been guilty of a usurpation of power. Such are cases against individuals charged with trespasses or other misfeasances, and where the defense is, that they acted in pursuance of powers delegated to them by corporations. Such was the case of Colter v. Coty, 5 Ohio, 393, relied upon as an authority for the plaintiff. It was an action for replevin for fifty kegs of gunpowder, and the defendant justified under the plea that he was marshal of the city of Cincinnati, and that he retained the gunpowder under an order of the corporation, because it had been forfeited for a violation ofa city ordinance. The court held that the corporation had no power to create a forfeiture, and, therefore, that the defendant was not justified. To have assimilated that case to this, it should have been against the corporation itself, and the corporation should have relied upon the defense that they were exonerated,. because, in the creation of the forfeiture, they had been guilty of usurpation.

■As a general principle, no corporation can exercise powers not-granted in its act of incorporation. This act is its constitution, and whenever it oversteps the limits therein prescribed, *its act so far becomes void. But where certain powers are specifically granted, these carry with them such others,, as incidental thereto, as are necessary to carry those specified into effect. It is proper, too, that these powers should be strictly construed, considering-with how little care chartered privileges are in these days granted. 2 Kent’s Com., 2 ed. 298, 299; 2 Cranch, 127; 4 Wheat. 636; 4 Pet. U. S. 152. But a different rule of construction ought to prevail where a corporation is endeavoring to extend its power to the injury of others, and where it sets up, by way of defense to an action brought against it, that it has itself been guilty of usurpation of power.

In considering this case, it is not my purpose to enter minutely into the arguments of counsel, although there are some principles-advanced for defendants in the opening argument, in-whieh I can not fully concur. In justice to counsel, I will say that this argument evinces much thought and reflection, and as a political production is worthy of great consideration. It seems to me, however, that it might have been better addressed tp the mayor and commonalty of Chillicothe, and to the people of that town, to-dissuade them from contracting their debts, than to this court, to induce us to lend our aid to the corporation in avoiding their payment.

It is said “ that the delegated power to borrow money is in its-nature a high, independent, substantive sovereign power, and can, therefore, in no instance pass from its primitive source but by express grant."

I do not know that I fully comprehend what is intended by this proposition; according to my understanding, it amounts to this: the power to borrow money being a high, substantive, independent sovereign power, has its source with the people, who are the primitive-source of all power, and must remain there until expressly granted. If this be true, it must follow that the corporation of Chillicothe have not power to borrow money, and could not have had, had it. been expressly granted in the act of incorporation, and for the reason that the people have not delegated in the constitution this-power to the general assembly — and no one will pretend that this body can confer upon a municipal corporation a power which it. does not itself possess. Upon this principle debts contracted by the general assembly, for money borrowed, are not binding *npon the state; I am not prepared to admit this question ; it goes at once to destroy all confidence in the public faith.

This is not the doctrine, however, which the counsel intends to-advocate. He supposes this power is expressly given to the general assembly, because, as he says, it' “ is among the sovereign powers of legislation,” and all legislative power is expressly given, in the first article of the constitution, to the general assembly.” That the general assembly have the’ power to borrow money, I have no doubt, and I agree with counsel that this power is conferred by the grant of all legislative power. The only difference between us is in the nature of the power. He considers it as a substantive, independent, legislative power. I consider it as incidental, general legislative power. It is not of that “high, independent, substantive, sovereign” character contended for. This power, resting jn the general assembly, may be granted by that body to a municipal corporation, either expressly, or as it possesses it itself, incidentally or by implication.

That this power is not expressly granted to the corporation of Chillieothe is admitted, and the only question is, whether it is. granted by implication. In order to arrive at a correct conclusion, it is necessary to examine the act of incorporation. The original act was -passed on December 28, 1813. In section 1 the limits of the town are specified, and the same is erected into a town corporate by the name of Chillieothe. Section 2 provides for .the election of officers, and section, 3, that the mayor, recorder, treasurer, and common eouncilmen, elected in pursuance of section .2, and their successors in office, shall be a body corporate by the name of the “ mayor and commonalty of the town of Ohillicothe,” with capacity “ to purchase, receive, possess, and convey any real or personal estate for the use of said town of Chillieothe; provided the clear annual income shall not exceed four thousand, dollars.”

In section 5, power is given “to lay a tax within said town,” for the purposes, and to bq assessed in the manner in the act. specified.

In section 6, power is given “to erect and repair pubiic build-. ings for the-benefit of said town, and make and publish laws and ordinances in writing, and the same from time to time alter and repeal, as to them shall seem necessary, for the ^internal safety and convenience of said town of Ohillicothe and the inhabitants thereof.”

From these extracts it will be seen that this corporation, as by that law constituted, had legislative power; this power, it is true, was restricted to such objects as should seem necessary for the internal safety and convenience of said town of Ohillicothe, and restricted, too, so far that the laws made and published, should not be contrary to the laws of the state or of the United States. It had the power further, to purchase, receive, possess, and convey any real or personal estate for the use of the town, to erect and repair public buildings for the benefit of said town,” etc.

If the power to borrow money be, as is insisted by counsel, a substantial legislative power, or, according to my apprehension of the subject, an incident to legislative power, and, if it became necessary, for the safety and convenience of the town, or to carry into effect the power granted to purchase real or personal estate, -or to erect or repair public buildings, to borrow money, there ■could be no objection to passing a law or ordinance to that effect. When passed, it would be obligatory on the corporation, and the money procured would constitute a debt which the corporation must discharge. Such law would contravene no principle of the constitution or laws of the state or of the United States, or any principle contained in the charter of incorporation. To effect •Other subjects than those specified in the charter, money could not, with propriety, be borrowed. But if it should be, that circumstance could hardly be set up as a matter of defense against an action brought for the recovery of the money. It would rather be a question between the individual corporation and their officers, or it might be between the state and the corporation.

This act of December 28, 1813, was amended by an act passed -on February 4, 1825. Although, by this amendatory law, all parts of the original law within its purview were repealed, it added to, rather than diminished the power of the corporation. Like the former law, it conferred power on the corporation to lay a tax, which might be increased to any extent by a vote of the freeholders and householders of the town at an annual election. It also conferred upon the mayor and common council the “ power to pass and publish all such laws and ordinances as to them shall appear necessary for regulating the streets, alleys, and highways, and for cleansing, praising, draining, paving, turnpiking, or otherwise keeping the same in repair,” and also, “ to pass all such laws and ordinances relative to the good government of the town,” etc. If, in affecting any of these objects, it became necessary to borrow money, the corporation might, with propriety, do it. In one of the cases now before the court, the money was borrowed expressly for improving one of the streets.

For the purpose of purchasing real estate, erecting and repairing.public buildings, cleansing, raising, paving, draining, turnpiking and otherwise keeping streets in repair, contracts must necessarily be made. Ultimate payment, it is true, must be made from taxation. But until money, could be thus raised, it seems, to the court that it might be provided otherwise, and in no way better than by borrowing. And really I can not see the. great difference whether a corporation shall be indebted to A. for labor in repairing streets or buildings; or to B. for money borrowed to pay A. for this same labor. The moral obligation to pay would bo the same in either case.

In the cases now before the court, there is nothing illegal in the consideration, and there is no violation of any positive law or moral principle in the premises. The undertakings are not to do an illegal act, but to refund money actually borrowed. The plaintiff violated no principle of law in loaning the money, and certainly there would be nothing immoral in the defendants’ paying it. On the contrary, we think its payment is required by every principle of moral honesty, and prohibited by no arbitrary rule of law.

The demurrers to the declarations will be overruled, and judgment rendered for the plaintiffs.