author: Tatjakebbo, J.

text:
    No. 1002.
    Peter Marcy et al v. Merchants’ Mutual Insurance Company.
    The evidence of witnesses, as to what they heard from or were told by others, of orders having been issued, or given by the insurgent military authorities, then in possession of the city, fot the destruction of property prior to, or about the time of the loss of the ship Pettigrew, was properly admitted as part of the res geniec.
    In the margin of the policy of insurance of the steamer Pettigrew, the following clause appears! “ "Warranted by the assured free from all claim for loss or damage, arising from or growing out of the collision of foreign powers, or of our government with others ” At the time this policy was affected, the city of New Orleans, the domicile of the insurance company, was in possession of the insurgents, engaged in armed rebellion against the United States Just prior to the capture of the city by the Federal fleet, the insurgent military commander ordered the burning of all the cotton in and about the city. Under these orders the ship Pettigrew was destroyed by fire: Held That the destruction by fire of the ship Pettigrew, resulted from and grew out of the “ colli* sion ” between the United States and the insurgents, then in arms against its authority; and the loss or* damage growing out of that collision was not a peril insured against.
    A PPEAL from the Sixth District Court of New Orleans, Buplantier, J,

      Buchanan <& Gilmore, for plaintiff and appellant.
    A. <& M. Voorhies, for defendants and appellees.

      Brief of Buchanan é Gilmore, for plaintiff and appellant.

    * * The question before the Court is not what ships were burned by military order on the morning of the arrival of the Federal fleet, but whether the evidence in this record shows that the Pettigrew was among the number of ships so destroyed, and if so, upon whom should the loss fall. Of course the law makes it incumbent on the defendants to make this proof, not by assumption or inference, but by clear and incontrovertible evidence. Have they done so ?
    Now, we say, if the Pettigrew was burned by military order, where is the order? The written order? If you cannot produce the written order by reason of its loss, as you say, (although no proof of any search or effort to obtain it is shown) where is the secondary proof ? The evidence of those who gave it, or of those who saw and read it; or, if verbal, who heard the order given ? The record is as silent as the grave on that subject. The defence has then entirely failed to show that the Pettigrew was destroyed by military command. This being the case, what has the evidence of the other eight witnesses to do with the question? Nothing at all. Their testimony is irrelevant, and as such it was objected to at the trial in the lower Court, and upon its being admitted, a hill of exceptions was reserved. That bill of exceptions is now insisted upon. It is ingeniously argued that the evidence forms part of the res gestae, and from it the Court is to infer a destruction of the Pettigrew by military order; and authorities are quoted in support of the argument. But it will he perceived, by an examination of the authorities, that they fall far short of the mark.
    Take, for instance, the reference to Greenleaf on Evidence, § 108. There, it is said, that on the trial of Lord George Gordon for treason, the cry of the mob, who accompanied the prisoner ■ on his enterprise, was received in evidence as forming part of the res gestee, and showing the character of the principal fact.
    But did the persons who burned the Pettigrew accompany General Lovell ? So far from it, the witness who relates the occurrence, tells us. at the same time, that “ there were no military in the vicinity,” and that “ I did not see any aid of General Lovell on that day about the levee.” The other cases referred to are equally inapplicable. There the conversations bore directly upon the main fact, and tended to illustrate the motives and intentions of the actors.
    There is then not that connection between the main fact, the burning of the Pettigrew, and the occurrences spoken of by the witnesses necessary to bring the evidence within the rule invoked by the defendants.
    But as our adversary refers to historical facts in connection with the events of that period, we may likewise be permitted to assert that there was no order to burn ships.
    There was an order to burn cotton wherever found, whether on shipboard or in the warehouses. If ships were burned, it was because they were loaded with cotton, or were supposed to have cotton on board.
    The only witness that speaks with positive knowledge on that subject is Col. DePeriet, who, on his cross-examination, says: “ The order was to burn the cotton either in the presses or in the harbor. The order was special as to cotton, wherever it was. There were no orders to burn ships •that had no cotton on board. The only ship I saw there had a load of cotton.” And again, on his direct examination: “The order of General Lovell was verbal, to burn the cotton wherever it was, The order of the governor was in writing, to the same effect. I have not the written order.”
    Col. DePeriet, it will be seen, commanded the Second Louisiana Regiment, and the order was transmitted to him. It was his duty to see it executed; and of course his evidence as to its character or purport, is more to be relied upon than the loose, vague and contradictory statements of subordinate military men, or of citizens who did not see it, and whose only knowledge of its contents is derived from rumor or hearsay. IJis is the only evidence on that subject deserving of attention.
    There was then no order emanating from Confederate or State authority, to burn vessels generally; and the defendants have absolutely and entirely failed to show any order, either written or verbal, to burn the Pettigrew. The evidence shows that she was destroyed by persons, who, under the circumstances, and whatever may have been their motives, must be regarded as incendiaries; and the loss, being one covered by the policy,, must be borne by the defendants. Angelí on Pire Insurance, p. 165, $ 134-8. * * *

      Brief of A. & M. Voorhies, for defendants and appellees.

    * * In the first bill, objection is raised against the admissibility of testimony to prove that “the ship, S. E. Pettigrew, had been burnt by order of the military, then in possession of the city of New Orleans, to the reception of which the plaintiff objected, on the ground that the same was irrelevant, and that the destruction of the property insured by third parties in no wise authorized or sanctioned by the plaintiff, was no defence to the action upon the policy.
    This objection goes to the effect, and not to the admissibility of the testimony; and, if correct in law, defeats the special defence that the loss Of the ship was the result of a war risk, which had been reserved in the policy of insurance as a special warranty, assumed by the plaintiff himself.
    The Court, therefore, properly admitted the evidence to prove a war risk, and overruled the objections to its admissibility.
    The other bill of exception is found at page 49 of the record.
    The burden of the complaint is, that the statements of several witnesses were improperly received,’being hearsay declarations “as to what they heard from or were told by others, of military orders having been issued or given by the military authorities in possession of the city of New Orleans, for the destruction of property prior to or about the time of the loss of the ship S. E. Pettigrew; and also to all statements of facts by all said witnesses, or by either of them, which were not of their own personal and direct knowledge, upon the ground that such statements were mere hearsay, not the least evidence, and too vague and unreliable to serve the purposes of judicial investigation, or to control the rights of the parties to this suit.”
    Undoubtedly some of the witnesses did state what was said on the spot, where, and at the time when the Pettigrew and other vessels were being destroyed by fire. But, as the evidence was part of the res gestee, and, consequently, not strictly hearsay, the District Judge concluded that the objection went to the effect, and not to the admissibility of the testimony.
    It is a historical fact, of which the Court will take judicial cognizance, that the Federal fleet had passed Forts St. Phillip and Jackson on the 25th day of April, 1862, and was on its way up the river to capture the city of New Orleans, then in the possession of the Louisiana State Government and of the Confederate authorities; and that the latter, in anticipation of this result, caused vessels, boats, docks and cotton to be fired, to prevent them (as was the invariable practice during the war) from falling into the hands of the Federal fleet and army. It was on this occasion that the Pettigrew was destroyed by fire, as well as several other ships or boats, some being loaded with cotton, while others were empty. The testimony introduced by the defendant merely corroborates this fact, and shows conclusively that these ships were destroyed to prevent their capture by the Federal fleet; that the military, including State and Confederate troops, were on the spot managing this affair; that Gen. Lovell and staff were there, besides other officers belonging to his command; that there were all along the river excited assemblages of the people, with whom at times the military mixed promiscuously; and finally, (besides the fact shown that orders were issued to perform this work) the general and his subordinates were present superintending the whole. Indeed, the Judge a quo knew something personally about these occurrences; like the Trojan chief, he might have said appropriately: “Quorum pars magna fui,” since he had been officiating on that occasion in the capacity of a so-called Confederate officer, and hence, was well prepared on the trial below to better appreciate the facts.

      It was while the ships, clocks, boats and cotton were burning, that were made the statements which are objected to as being hearsay. These statements were not only contemporaneous with the main fact under consideration, but were so intimately connected with it as to determine its character. They were part of the res gestee, and cannot be severed from the main fact. As such they are original evidence, and form, an exception to the rule decreeing the inadmissibility of hearsay testimony. See Greenleaf Ev. § 108, eisep\ Marignyv. Union Bank, 5 B. 354; Laeaze v, Sejour, 10 E. 444; Duperrier v. Daulerive, 12 An. 664. * *

   Tatjakebbo, J.

The plaintiffs in this case sue on a contract of insurance. They effected insurance with the defendants to the extent of 87,000, on their interest in the ship S. E. Pettigrew, which was valued in the contract at 840,000. The ship was insured from 27th of July to 27th of August, 1861. This insurance was renewed monthly up to March 27th, 1862, when it was again renewed for the period of one month, ending on the 27th of April, 1862. It appears that on the 25th of April, two days before the policy expired, the ship was destroyed by fire in the port of New Orleans. The insurers are sued for indemnity for the loss. The defence is, that the ¡(vessel was not lost by any of the perils insured against, and that the company is not bound to make good the alleged loss. The defendants had judgment in their favor in the Court below, and the plaintiffs prosecute this appeal.

In the margin of the policy of insurance, the following clause appears: “ Warranted by the assured free from all claim for loss or damage arising from or growing out of the collision of foreign powers, or of our government with others.”

It is under this condition of the contract, that defendant claims exemption from liability. They allege, in their answer, that the ship Pettigrew was destroyed by fire at the time a fleet of vessels of war of the United States was entering the port of New Orleans. That the burning of the vessel was by order of the military authorities then in possession of the city, and about to abandon it; that the act was authorized by the States then at war with the United States. It will be proper here to notice a bill of exceptions taken by the plaintiffs to the admission of statements made by several witnesses, as to what they heard from or were told by others, of orders having been issued or given by the military authorities then in possession of the city, for the destruction of property prior to or about the time of the loss of the ship Pettigrew.

The Court, we think, properly admitted the evidence as part of the res gestee. One of these witnesses (Brown) testified that he “ saw a mob go on board the Pettigrew, and fire her. There was no military in the vicinity. I was on the wharf; the crowd said they were going to fire all the ships at the wharves. They gave no reasons for this. They fired one of my ships. ”

Tobleman, a witness, stated: “I was stationed at the foot of Clouet street, as captain of a company. I saw General Lovell with his staff. He asked me where were my men? I answered they were busy at work. He told me, that inasmuch as the Federal fleet was coming up, to burn all the cotton and ships as soon as possible.”

G. D. Eeriet, a witness, deposed that lie was colonel of the Second Louisiana Regiment; that the orders to burn ships, and cotton in the presses, were transmitted to him; that there was'an order first from the Governor and one from General Lovell, carried by an aide-de-camp. The order was positive, to burn all the cotton in the presses and in the harbor. “ The order of General Lovell, to burn the cotton wherever it was, was verbal;”the order of the Governor was in writing, to the same effect. The testimony of many witnesses concurs in establishing the fact that at the same time the Pettigrew was burned a number of other vessels, .and a large amount of cotton were burned at New Orleans. At that time excitement and consternation pervaded the city. A fleet of United States vessels of war had passed the forts below, and was advancing up the river. The purpose of the insurgent officers about to evacuate the city, it is satisfactorily shown, was to destroy all the cotton in New Orleans, wherever found, whether in the cotton-presses or on shipboard. It is matter of history, that at that time it was the policy of the so-called Confederate authorities to destroy cotton everywhere within reach of the United States forces. That there was an order to burn ships that had cotton on board, there cannot be a remaining doubt. The evidence, -we think, conclusive, in favor of the defendants. That the destruction by fire of the ship Pettigrew, resulted from and grew out of the “collision” between the United States and the insurgent power then in arms against its authority, is satisfactorily established. It is plain, from the contract of insurance, that “ loss or damage arising from or growing out of” that collision, was not a peril insured against.

It is therefore ordered, adjudged and decreed, that the judgment of the. District Court be affirmed, with costs in both courts.

Rehearing refused.


source: Caselaw Access Project

author: Labauve, J.

license: Public Domain

text:
    No. 996.

      Mandeville & Montgomery v. Bank of Louisiana.
    Plaintiff deposited moneys in the Bank of Louisiana. The bank and all its assets were afterwards seized, and taken possession of by order of the Commanding General of the United Statos Army, all the assets were turned over by the directors of the bank, including the deposit, to the quartermaster of the department. Plaintiff, a depositor, brings suit against tho bank for the amount of the deposits still to his credit. The bank sets up in defence that these deposits have been seized and taken possession of by order of the Commanding General, and the bank is not again liable for their payment: Held—'That the bank, having paid out all these deposits under an authority they had no right to question nor power to resist, they are no longer liable to’ pay them to the depositors; that obedience to the military order was full protection to the bank.
    A PPEAL from the Sixth District Court of New Orleans, Duplanlier, J.
    P. H. Morgan and J. H. New, for plaintiffs and appellants.

      Miles Taylor, for defendant and appellee.
    Reporter.—In order to give a correct report of this case, it is necessary to publish the written opinion of the District Judge, in the case of JE. W. Dorr, Administrator, v. The Banlc of Louisiana, No. 17,163, on the docket, referred to by the Supreme Court for their reasons for judgment in this case. The opinion of the Judge a quo is as follows:

      “The plaintiff in this ease, acting in the capacity of administrator of the succession of the late J. A. Simpson, claims from the Bank of Louisiana the sum of twenty-six thousand six hundred and ten dollars, which he shows had been deposited in said bank to the credit of the deceased, in the years 1861 and 1862.
    “The defence set up against the demand is that the bank is not liable to the plaintiff for the sum claimed, or for any part thereof, owing to the fact that under an order issued by the Commanding General of this department on the 17th of August, 1863, the several banks and banking corporations in this city were required to pay over, without delay, to Col. S. B. Holabird, Chief Quartermaster, or to such officer of the quartermaster department as the colonel might designate, all moneys in their possession belonging to or standing upon their books to the credit of any.person registered as an enemy of the United States, or engaged in any manner in the military, naval or civil service of the so-called Confederate States, or who shall have been or may after the issuance of the order, be convicted of rendering any aid or comfort to the enemies of the United States, And that in compliance with said order, the aforesaid sum of §26,610, then standing in the books of the bank to the credit of the deceased, was paid over to J. W. McClure, acting quartermaster, who was the officer delegated by Colonel Holabird, to receive the moneys referred to in the Commanding General’s order, and who was at the same time one of the commissioners in charge of the effects of the bank, as liquidators under military appointment.
    “ The facts of the case are quite simple; they are such as represented by the pleadings, with this additional evidence, that J. A. Simpson, who died in December, 1863, was, at the time of his déath, between sixty-three and sixty-seven years of age, and a resident of the State of Alabama, to which he had moved in the early part of 1863, from the State of Florida; that up to the day of his death, he was not employed in the armies of the so-called Confederate States; that he occupied no civil position whatever under the Confederate Government, and that he was not known to be otherwise than a loyal citizen of the United States.
    “Under these state of facts, the question to be decided is this: Can the bank be held liable to the plaintiff as the administrator of Simpson’s estate for the moneys which this latter had to his credit in the books of the bank, notwithstanding the fact that the bank has already paid over these moneys to the Acting-Quartermaster McClure, under the military order ?
    “ On the part of the plaintiff, it is contended that when the money was paid to McClure, the relation in which Simpson and the bank stood towards each other was not that of depositor and depositary, but simply that of creditor and debtor; that the payment transferred no property of Simpson to McClure, but turned over to him the property of the bank; and hence, it is argued that the bank did not by the fact of the payment cease to be the debtor of the plaintiff, but still owes him, or rather his estate the amount claimed, notwithstanding the payment.
    ‘ ‘It is evident that the real position, in which the contending parties stood towards each other when the payment was made to McClure was that of creditor and debtor. Upon this question there oan be no reasonable doubt; the deposit by Simpson with the bank, was not a special but an ordinary deposit; the bank had then the right to use his money; it became its own property, and the bank became at the moment of the deposit, the debtor of Simpson to the extent of the sum deposited. That doctrine is recognized in the cases of Matthews, Finlay <& Co. v. Their Creditors, 10 An. 323; and Simons v. Bean, 10 An. 346, but, admitting the fact that Simpson was the creditor of the bank when McClure required of the latter a compliance with the order of the Commanding General, I am at a loss to conceive by what principle of law or of equity, Simpson could be justified in claiming to be still a creditor of the bank, notwithstanding tho payment to McClure. The order of the Major-General, requiring the banks and banking corporations in this city to pay over to the chief quar; termaster all moneys in their books, standing to the credit of the persons referred to in the order, was, in all respects, equivalent to a garnishment in the hand of the banks of all claims for money growing out of deposits which the parties named in the order held against the banks and banking corporations, and all payments made under the order was compulsory, and must necessarily operate a discharge in favor of the banks as would a payment made by a garnishee to a plaintiff in a regular garnishment process. What was seized upon, confiscated or sequestrated, and takeu possession of by McClure under the Major-General’s order, was not Hie identical moneys which had originally been deposited by Simpson with the bank, and which at the very moment of the deposit became the property of the bank, nor was it the property, effects or moneys of the bank, but the property of Simpson himself; that is, his claim against the bank for moneys deposited.
    “Henee, it follows that his claim being the thing confiscated, and taken by McClure from the bank, all his rights under it passed -over to McClure under the order of the Major-General, and the payment made to McClure must necessarily have released the bank.
    “But it is insisted that the order issued by the Commanding General on the 17th August, 1863, was unauthorized by law; that it did not reach Simpson, because he was not in the category of those persons contemplated by the Major-General, which is a fact that could have easily been shown by the bank; that for these reasons the bank should have resisted the enforcement of the order, and that its neglect to do so has worked upon the plaintiff an injury for which tho bank should be held responsible.
    “Bo far as the legality of the order is concerned is of no consequence here, for the bank had no right to question it; no more so than it had the right to put at issue its propriety, (Foster & Elam v. Milsoe, 2 Peters, 253,} but even if it did possess that right, it certainly had not the power to enforce the right, and it cannot, therefore, be accused of neglect for not doing what it had no power or means to do. Nor was it the province of the bank, or within its power, to determine whether or not the plaintiff was effected by the order; the determination of that question was evidently left with the military, for they alone had the means of ascertaining the status of every one. But, be that as it may, and conceding that the bank may be accused of gross negligence by the plaintiff; that negligence would perhaps authorize a judgment against it in a suit for damages, but certainly not in this suit where no damages are claimed.
    “But, furthermore, another circumstance in the case strongly militates in favor of the defendant. It is shown that when McClure received the amount of money standing to the credit of Simpson in the books of the bank, the latter was not under the administration of the directors. A commission of liquidators, of whom McClure was one, had taken possession of it; these had been appointed by the military, consequently’their act in paying over the money to McClure was not, properly speaking, the act of the bank, but was the act of the military, for which it is neither just-nor equitable that the bank should be made to suffer.”
   Labauve, J.

The plaintiffs claim of the defendant the sum of $13,963 64, which they allege they had deposited in the Bank of Louisiana ; that the same has never been paid to them, although amicably demanded.

. The answer contains a general denial, and further, that in virtue of divers orders issued by Major-General Banks, and particularly one directed to Capt. T. M. McClure, to take possession of the balances of persons who left the city on its occupation by the Union' troops, and have not returned, and hold them for the government, subject to any just claims that be made against them, the said sum of $13,963 64 was withdrawn from the bank by said T. W. McClure, and that said bank is not responsible.

The District Court gave judgment for defendant, and the plaintiffs appealed. ,. .

There is no dispute about the facts.

. The judge a quo, in giving judgment, said: .

“ This case being identical, in every respect, with that of E. W. Dorr, Executor, v. The Bank of Louisiana, No. 17,163, of the docket of this Court, the reasons assigned for a judgment in that case, must apply to this ease. ”

We have carefully examined that opinion, which is found in the record, and we fully concur with our learned brother of the District Court, and for the reasons by him assigned, the judgment appealed from must be affirmed.

It is therefore ordered and decreed, that the judgment appealed from be affirmed, with costs.


author: IiiSLEY, J.

text:
    No. 1394.
    State of Louisiana v. J. L. Dennett.
    16 is sufficient, to establish the forgery of a check and the signature thereto, to show a similarity between the spurious check and the genuine one, such as to create a possibility of fraud.
    The statute of Louisiana introduced no change in the common law, as to the distinctions in degrees of insanity; it merely directed the action of juries, in a case where a prisoner, upon the general issue of not guiliy, was acquitted for that cause.'
    A PPEAL from the First District Court of New Orleans, Howe, J.

      W. W. Handlin, for appellant.

      O. H: Luzenbei'g, for the State,
   IiiSLEY, J.

The prisoner was tried and convicted on an information for forgery, and sentenced to the penitentiary for the term of five years.

Several points are relied on in this Court for a reversal of the verdict of the jury, and the judgment of the District Court, which are presented-in the following order:

i.That the Court refused to charge the jury that the State must show that the checks charged to have been forged by the prisoner, and the signature thereto affixed sufficiently resemble the genuine cheeks and signatures of Paul Duyan, to deceive persons of ordinary businese observation, otherwise it is not a forgery, and the prisoner must be acquitted.

The Court did not err in refusing so to charge the jury. In Rex v. Mary Mazagora reported in Russell and Ryan’s British Crown Cases, vol. 1, page 291, it was decided by the twelve Judges of England, that “a jury ought to infer an intent to defraud the person who would'have to pay the instrument if it were genuine, although from the manner of executing the forgey, or from that person’s ordinary caution it would not be likely to impose on him, and although the object was general to defraud whoever might take the instrument, and the intention of defrauding, in particular, the person who would have to pay the instrument if genuine, did not enter into the prisoner’s contemplation.”

If there be at any time a bare possibility of fraud, it is enough to constitute the offence. Wharton’s American Criminal Law, 1846, page 338, United States v. Turner, 7 Peters 132. Archibald’s Criminal Pleadings, (1840) 346.

Several bills of exception were also taken by the prisoner’s counsel to the refusal of the Court below:

1. To allow a paper markedL, purportingto be a reportof physicians to show the insanity of the prisoner, to be received as evidence, and also to permit the counsel of the prisoner to examine his client on that point.

2. To admit, in evidence, a letter from a person addressed from Portsmouth, N. H., in answer to a letter from the prisoner’s counsel, in order to show the former history of the prisoner and his insanity, and also to admit the evidence of the former counsel of the prisoner, to show in the opinion of one of them, who was not precluded, the prisoner was insane.

The grounds of objection to this evidence are not stated in the bill of exception, except as to the opinion of the counsel, which was objected to as hearsay.

The Court did not err in rejecting the evidence of the counsel, to prove the opinion of his colleague; it was hearsay. The other matters raised by the bills cannot be noticed, as no grounds are stated in the bills upon which the evidence was'excluded.

3. To charge the jury that they had the pow'er to acquit, if they found insanity in any degree, however slight it might be; and that the statute of the State of Louisiana does not, as the English law, make distinctions an degrees of insanity or mental derangement.

The Court did not err, in refusing thus to charge the jury. The statute of Louisiana introduced no change in the common law, as to the distinctions in degrees of insanity; it merely directed the action of juries, in case á prisoner upon the general issue of not guilty acquitted any person for that cause. R, S., sec. 21.-

Nor did the Court in refusing to permit the counsel for the accused to hand his notes of evidence taken down by him to the jury, to be taken* by it into the jury-room.

' And finally, the Court did not err in its refusal to arrest the judgment, for the reasons stated in the motion, viz: that the report styled “ inquisition” of larceny, was not allowed to go-to the jury, although-made before the trial, and because the notes of evidence made by the counsel were not, allowed to be handed to the jury. These were not legal grounds to be urged in arrest of judgment.

It is therefore ordered, that the judgment of the District Court be affirmed.