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pany was authorized to employ a surgeon to attend one If it should appear that a mau had been denied wbat of the brakeman injured while in the service of the honesty and fair dealing required of his master, and company. The court said in the course of the opin- | death should result, it would seem clear on every prin. ion: “In other words, the general agent of the com- ciple of justice, that the master would be responsible pany is virtually the conporation itself." This is neo- for the servant's death. Of course this duty could not essarily true in cases where the agent is required to act rest upon the master in ordinary cases, but should for the corporation, and is also true where the agent rest upon him in extraordinary cases, where immedi. who acts is the highest agent of the corporation pres- ate medical assistance is imperatively demanded. ent, although he may not be the general agent of the The case of Tucker v. St. Louis, etc., R. Co., 54 MO. corporation. A corporation can act, and can be present 177, does decide that a station agent has do authority only by its agent, and when it must act and must be to employ a surgeon, but no element of pressing necespresent at a particular time and place, tben it is pres-sity entered into the case. There is no authority cited ent, and does act, through the highest agent who is on in support of the opinion, nor is there any reasoning, the ground. If the agent represents the corporation All that is said is: “It is only shown that they" (the by authority, then so far as he represents it in the par- station agent and the conductor) “ were agents of the ticular matter, he is in law the corporation, for through defendant in conduoting it railroad business, which of him it is present and acting. If then the conduotor is itself would certainly give them no authority to emthe highest agent on the ground, and the corporation ploy physicians, for the defendant, to attend to and must and does act, his act is just as much that of the treat persons accidentally injured on the roads." It corporation in the particular instance, and circum. may be that this statement is true in ordinary cases, scribed by the exigencies of the special occasion, as but when we add the element of immediate and pressthough he were much higher in authority.

ing necessity, a new and potent factor is introduced The ruling in Atchison, etc., R. Co. v. Reecher, 24 into the case. Kans. 228, is that the general superintendent of a rail- A brief opinion was rendered in Brown v. Missouri, road company has authority to employ a surgeon to etc., R. Co., 67 Mo. 122, declaring that the superintend. attend a man ivjured while in its service.

ent of the company could not bind the company for The cases of Toledo, etc., R. Co. v. Rodrigues, 47 III. a small bill of drugs furnished a woman who had 188; Toledo, ete., R. Co. v. Prince, 50 id. 26; Indian- been hurt by the locomotive or cars of the defendant" apolis, etc., R. Co. v. Morris, 67 id. 295; Cairo, etc., R. It may be said of the last-cited case that it presented Co. v. Mahoney, 82 id. 73, cited and relied on by the no feature of emergency requiring prompt action, and appellant, all recognize the doctrine that the superin. for aught that appears in the meager opinion of a very tendent or general agent has authority to employ a few lines, there may bave been no necessity for action. surgeou to treat a servant who has been injured. If But it is further to be said of it, that if it is to be we are right in our conclusion that an emergency may deemed as going to the extent of denying the right of arise which will constitute a conductor, for the time one of the principal officers to contract for medicine in and the emergency, the chief officer of the corporation case of urgency, it finds no support from any adjudged present, them these cases are strongly in support of our case. position that he may in cases of urgent necessity bind The case of Mayberry v. Chicago, etc., R. Co.,75 Mo. the corporation by coutracting with a surgeon. For 492, is not in point, for there a physician employed to once it is conceded that the officer having a right to render medical aid, and employed for no other purrepresent the company is the company, it evidently pose,'undertook to coutract for boarding for an iujured follows that his contract is that of the corporation. These cases do deny however in general terms the au- The learned counsel for appellaut says in his arguthority of a station agent or conductor to employ a ment: “In several of these case the court takes occasurgeon, but they affirm that if the superintendent sion to say that humanity, if not striot justice, requires has notice of the services rendered by the surgeon, a railroad company to care for an employee who is inand does not disavow the agent's acts, the company jured without fault on his part in endeavoring to prowill be bound. It is to be noted that in all of these mote the interests of the company. Whilst this may cases the company was held liable on the ground of be true, I think humanity and strict justice too would ratifioation by the superintendent, and there was at least permit the company to adopt the proper means really no decision of any other question than that a for exercising the required care and of determining the Trithe conductor for statiohe nagent rendered the tromtales comes to us that while the concession of the counpany liable. There was no discussion of the authority | sel is required by principle and authority, his answer of a conductor in cases of immediate and urgent neces- is far from satisfactory. Can a mau be permitted to sity. The reasoning of the court in these cases strongly die while waiting for the company to determine when indicates that the act of the superior officer, whoever and how it shall do wbat humanity and strict justice he may be, on the occasion and under the emergency, require? Must there not be some representative of would be deemed the act of the corporation which he the company present in cases of dire necessity to act assumes to represent. In the last of these cases it is for it? The position of counsel will meet ordinary said: “While a railroad company is under no legal cases, but it falls short of meeting cases where there is obligation to furnish an employee who may receive in- no time for deliberation, and where humanity and juries while in the service of the company, with medi- justice demand instant action. From whatever point cal attendance, yet where a day laborer has by an un- of viow we look at the subject we shall find that the foreseen accident been rendered helpless wben labor- highest principles of justice demand that a subordiing to advance the prosperity and the success of the nate agent may in the company's behalf call surgica) company, honesty and fair dealing would seem to de

aid when the emergencies of the occasion demand it, maud that it sbould furnish medical assistance." If and when he is the sole agent of the company in whose it be conceded that honesty and fair dealing require power it is to summon assistance to the injured and that medical assistance should be furnished, then the suffering servant. Humanity and justice are for the law requires it, for the law always demands honesty most part inseparable, for all law is for the ultimate and fair dealing. It would be a cruel reproach to the benefit of man. The highest purpose the law can aclaw, and one not merited, to declare tbat it denied to complish is the good of society any its members, and an injured man what honesty and fair dealing re- it is seldom indeed that the law refuses what humanity quire.

suggests. Before this broad principle bare poouniary


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considerations become as thiogs of little weight. mediate necessity for surgical treatment. A con-
There may be cases in which a denial of the rigbt of duotor cannot be regarded as having authority to em-
the conductor to summon medical assistance to one of ploy a surgeon when the train is not on the road under
his train meu would result in suffering and death, his control, or where there is one higher in authority
while on the other hand, the assertion of the right can on the ground, or where there is no immediate neces-
at most never do more than entail upon the corpora-sity for the services of a surgeou.
tiou pecuniary loss. It may not do even that, for The rule which denies a recovery where there is mu.
prompt medical assistance may, in many cases, lessen tual negligence applies only between the immediate
the loss to the eompany by preventing loss of life or parties. The courts do not extend the rule to cases

where the defendant's negligence and that of a third
The authority of a oonductor of a train in its general person conour in producing the injury. Thus it two
scope is kuown to all intelligent men, and the court trains come into collision and the managers of both
that professes itself ignorant of this matter of general are negligent, an action may nevertheless be main-
notoriety avows a lack of knowledge that no citizen tained by a passenger. Pittsburgh, etc., R. Co. v.
who has the slightest acquaintance with railroad affairs Spencer, 98 Ind. 186. So if a man is riding with
would be willing to confess. It is true that the exact another and is injured by a collision occurring
limits of his authority cannot be inferred from evidence through the concurrent negligence of the driver of the
that he is the conductor in charge of the train, but the vehicle and the servants of a railroad train engaged in
general duty and authority may be. This general au- running it, he may recover, notwithstanding the con-
thority gives him control of the train men and of the tributory negligence of the driver of the vehicle in
train, and devolves upon him the duty of using rea- which he was riding Town of Albion v. Hetrick, 90
sonable care and diligence for the safety of his subor- | Ind. 545; 8. C., 46 Am. Rep. 230; Robinson v. N. Y. C.,
dinates. The authority of the couductor may be in- etc., R. Co., 66 N. Y. 11; 8. C., 23 Am. Rep. 1; Wabash,
ferred, as held in Columbus, etc., Ry. Co. v. Powell, etc., Ry. Co. 7. Shacklet, 105 Ill. 364; S. C., 44 Am.
40 Ind. 37, from his acting as such in the control of the Rep. 791; Masterson v. N. Y. C., etc., R. Co., 84 N. Y.
train, but this inference only embraces the ordinary 247; S. C., 38 Am. Rep. 510; Cuddy v. Horn, 46 Mich.
duties of such an agent. Many cases declare that the 596; S. C., 41 Am. Rep. 178; Bennett v. New Jersey, etc.,
conductor, in the management of the train and mat- Co., 36 N. J. 225; S. C., 13 Am. Rep. 435.
ters connected with it, represents the company. It is The doctrine of contributory negligence is by some
true that the agency is a subordinato one confined to authorities based on the principle that a man must
the subject matter of the safety of the train and its not cast himself into danger, and by others upon the
crew, and the due management of matters connected principle that one who is himself in fault cannot in-
with it, but although the conductor is a subordinate voke assistance from the courts against another who
agent he yet has broad authority over the special sub- shares the fault with him. Butterfield v. Forrester, 11
ject committed to this charge. It was said in Jeffer- East, 60; 1 Thomp. Neg. 485. Other authorities put
sonville Ass'n v. Fisher, 7 Ind. 699, that "it is not the the doctrine ou the ground that the interests of the
name given to the agent, but the acts which he is au- whole community require that every one should take
thorized to do, which must determine whether they such care of himself as can reasonably be expected of
are valid or not, when done.” In another case it was him. Shearman & Redf. Neg., $42. It is obvious that
said: “The authority of an agent being limited to a whatever be deemed the true basis of the doctrine, it
particular business does not make it special; it may be cannot apply where the case goes beyond the plaintiff
as general in regard to that, as though its range were himself, or what in law is the same thing, his agent or
unlimited." Cruzan v. Smith, 41 Ind. 288. This sub- servant. It is therefore plain that where a surgeon
ject was discussed in Toledo, etc., Ry. Co. v. Owen, sues for professional services rendered at the request
43 id. 405, where it was said: “A general agent is ono of the agent of a railroad corporation, no question of
authorized to transact all his principal's business, or contributory negligence is involved. This is mani-
all of his principal's business of some particular kind. festly the practical, just, and reasonable rule. It can-
A special agent is one who is authorized to do one or not be expected that a surgeon summoned to attend a
more special things, and is usually confined to one or case of pressing need shall be required to stop and in-
more particular transactions, such as the sale of a vestigate the causes of the accident, and thus take
tract of land, to settle and adjust a certain account, upon himself the functions of judge and jury. It is
or the like. That the authority of an agent is limited but just that he should be deemed entitled to rely on
to a particular kind of business does not make him a the statement of the corporate agent. Where a prin-
special agent. Few if any agents of a railroad com- cipal puts it in his agent's power to exercise apparent
pany do, or can attend to every kind of business of the authority, the man who in good faith acts upon the
company, but to each one are assigned duties of a par-

statements of the agent should be protected. Cruzan ticular kind, or relating to a particular branch or de- v. Smith, 41 Ind. 288. The Supreme Court of Kansas, partment of the business." Wharton says: “A gen- in a case not unlike the present, said: “The defenderal agent is one who is authorized by his principal to ant in error was not compelled to institute inquiry as take charge of his business in a particular line." to the moral or legal liability of the railroad company Wbart. Agency, 117. It results from these familiar to take care of the disabled employee before receiving principles, that the conductor of a train, fo far as con

him into his hotel, after the general agent of the comcerns the direct and immediate management of the pany had agreed that the company would pay for the train when it is out on the road, is in the absence of board and service.” Atlantic, etc., R. Co. v. Reisner, 18 some superior officer, the general agent of the com

Kans. 458. pany; but even general agents do not have universal The employment of a surgeon is not an acknowledge powers, and the authority of such agents is to be de

ment of a liability to the injured servant, nor can any duced from the facts surrounding the particular trans- admission be tortured from such an act. Evidence of action. 2 Greenl. Ev., 88 64-64a. In some instances such an employment would be incompetent in an acthen the conductor is the general agent of the com- tion by the servant, and no admission can therefore pany, and we think it clear upon principle aud author- be implied. The employment of a surgeon is nothing ity, that he is such an agent for the purpose of employ- more than an act of humanity and justice demanded ing surgical assistance where a brakeman of his train of a railroad company in behalf of a servant injured is injured while the train is out on the road, and where iu its service. there is no superior officer present, and there is an im

Judgment affirmed.

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ZOLLARS, C. J., dissents on the ground that it is NEW YORK COURT OF APPEALS ABSTRACT. not sufficiently shown that the conductor had authority to bind the company by his contract with ap- MORTGAGE - UNCERTAINTY IN DESCRIPTION-EVI. pellee.


::-A deed should never be held void ON PETITION FOR A REHEARING.

when the words may be applied to any intent to make ELLIOTT, J. Counsel for the appellant misconceive it good, and to that end they are to be taken most the drift of the reasoning in our former opinion, as strongly against the grautor, for he should not be alwell as the conclusion announced. We did not de- lowed to say that a description framed by himself was cide that a corporation was responsible generally for so indefinite that upon an enforcement of the mortgage medical or surgical attention given to a sick or no title to the property could be acquired. 4 Com. wounded servant; on the coutrary, we were careful to Dig. tit. Fait; 4 Cruise, 203, § 13; Jackson v. Gardner, limit our decision to surgical services rendered upon 8 Johns. 394. It is enough therefore if by any particulars an urgent exigency, where immediate atteution was in the description the thing granted can be sufficiently demanded to save life or prevent great injury. We held ascertained to enable the court to say that the words that the liability arose with the emergency, and with chosen by the parties were intended to relate to it. it expired.

And for that purpose we may go beyond the face of We did hold that where the conductor was the high. | the deed if it refers to some subject matter in respect est representative of the corporation on the ground, to which we can locate and apply the description. and there was an emergency requiring immediate ac- Coleman v. Manbattan Beach Imp. Co., 94 N. Y. 229. tion, he was authorized to employ a surgeon to give In the case at bar the mortgage conveys " a certain such attention as the exigency of the occasion made other piece or parcel of land lying and being situated imperiously necessary; but we did not hold that the in the county of Tompkins, being part of lot No. 86 in conductor had a general authority to employ a sur- Lansing aforesaid, * * * containing 133 acres of geon where there was no emergency, or where there land, the same, more or less. The intention this was a superior agent on the ground. We think our last-mentioned piece of land is to mortgage 46 acres of decision was well sustained by the authorities there land on the south side of it. next to Mr. Norton's, to cited, and that it is further supported by the reason- secure a part of the consideration. We think there ing in Chicago, etc., Ry. Co. v. Ro88, 31 Alb. L. J.8; can be no doubt as to what property was intended. and Pennsylvania Co. v. Gallagher, 40 Ohio St. 637; S. * * There was no other land of the mortgagor C., 48 Am. Rep. 689.

on which the conveyance could operate. He had no If the conductor, who is the superior agent of the other “next to Norton's." In such a case the maxim company on the ground, cannot represent the princi- | ut res magis valeat quam pereat applies. It is not easy pal so far as to employ a surgeon to render profes- to find two cases alike, but the principle upon which sional services to an injured servant, and prevent the many have been decided applies here, and I know of loss of life or great bodily barm, then it must be said, no exception to the general rule which requires the as it was said by the Supreme Court of the United court to make a deed effective if from the descripStates in Chicago, etc., Ry. Co. v. Ross, supra, that tion given the premises sought to be conveyed can be “If such conductor does not represent the company, located with reasonable certainty. Here the descripthen the train is operated without any representative tion is in some respects inartificial and imperfect, but of its owner."

the intention of the parties is more apparent than in The decision in Louisville, etc., R. Co. v. McVey, numerous cases cited by the learned counsel for the 98 Ind. 391, is not in conflict with our conclusion in the appellant, where the courts have given effect to instrupresent case. There the road-master was not the su- ments objected to for like reasong. To hold otherwise perior agent within reach, and there was no emergency we must exolude the rule which requires even the demanding immediate action. These are features proper and exact signification of words and sentences which very essentially distinguish the two cases. We to be disregarded when a close adherence to it would held in this case a doctrine held in the case cited, prevent the intention of the parties from taking effect namely, that the conductor, or other subordinate (French v. Carhart, 1 N. Y. 102), and that other rulo agent, has no general authority to employ a surgeon which requires us to select among conflicting descripfor a sick or wounded servant of the company; but tions, one which is most certain, and to reject inconwe also held that where the conductor, in control of sistent or mistaken particulars, when by those which the company's train and its brakemen, is the highest remain the thing intended to be granted can be asceragent on the ground, he does possess an authority tained. Jackson v. Marsh, 6 Cow. 281; Same v. commensurate with an existing and pressing emer- Loomis, 18 Johns. 81; Loomis v. McNaughton, 19 id. gency. It seems clear to us, upon principles of fair 448; Fish v. Hubbard, 21 Wend. 652. So whether justice and ordinary humanity, that some one must these principles are applied, or regard had only to the possess authority to meet au urgent exigency by em- description which places the mortgaged premises ploying surgical aid to save from death or great and next to Norton's,” we think the learned county judge permanent injury a servant under his control. As the did not err in giving effect to the mortgage, or in holdreasoning in the Meley case clearly shows, there is ing that the mortgaged premises were well located by still another material difference between the two means of the description contained in it. People F. cases, and that is this: There the road-master ap- Stevens. Opinion by Danforth, J. peared to only have authority over the repairs of the [Decided Nov. 25, 1884. ] road; while here it appears that the conductor had charge of the injured servant, and was the highest INSURANCE-MARINE-WARRANTY OF SEAWORTHI. officer of the corporatiou capable of acting as its rep- NESS-CONDITION PRECEDENT TO RECOVERY.-In every resentative in the emergency which had so suddenly case of marine insurance there is an implied warranty arisen.

of seaworthiness on the part of the insured, and if the So far as concerns the general principle involved vessel is not seaworthy the policy does not attach. 1 there is no conflict, but rather harmony, for the Mc- Arn. Ins. 652, 667; 2 Pars. Cont. (5th ed.) 375; Allison Vey case clearly recognizes the doctrine that the v. Corn Exchange Co., 57 N. Y. 87; Draper v. Com. highest agent capable of acting for the company may mercial Ins. Co., 21 id. 378; Howard v. Orient M. Ins. employ surgical aid in the proper case.

Co., 2 Robt. 539. This warranty of seaworthiness is a

Petition overruled. condition precedent, the performance of which must, [See 33 Eng. Rep. 187, 208.)

to entitle the plaintiff to recover, be alleged and proved

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by him; and if it appears that the vessel, shortly after securing to the new concern the good will and business sailing, became leaky, unfit to perform the voyage, or advantages possessed by the former one. The practisank without encountering any peril or storm, this is cal arrangements by which such a change is effected uspresumptive evidence of uuseaworthiness. 2 Arn. Ing. ually include the taking by the limited partnership 1345. The facts presented brivg the case within the of the assets of the general partnership. rule above stated, and it is very manifest that upon 110 The special partner cannot put in his stock in the old sound principle of law can it be held that under the concern upon a valuation as his capital, because the circumstances presented the vessel was seaworthy. statute requires it to be paid in in cash. But the statute Although the question has never been decided in this does not prohibit the limited partnership from purcourt, yet the distinct point was presented in Wright chasing in good faith of the former firm, or from pay5. Orient Mut. Ins. Co., 6 Bosw. 269. Iu that case, ing for it out of capital contributed by the special where a vessel sailed in the morning, and was soon af- partner, although it may happen that the latter is enter found to be leaking, and in the afternoon put back abled to receive the greater part or the whole of the to port, the jury having found a verdict for the plaint- | purchase-money, and is placed in substantially the iffs, po violent storm or extraordinary perið being same position as if he originally had put in the stock shown, the court set the verdict aside, as coutrary to as capital instead of money. The transaction is not a evidence and law, and in violation of the presumption withdrawing of the capital of the special partner. It of upseaworthiness arising on such facts. In the case is the employment of that capital in the business of the considered there was no evidence introduced on the limited partnership. If the purchase of the stock was part of the plaintiffs directly showing that the vessel made a condition of his contribution of capital, a difwas seaworthy, even when she started on her voyage. ferent question would be presented. But where a limThe claim of the plaintiffs to the contrary is without | ited partnership is at liberty to purchase the stock, or merit. The testimony of Mr. Lawrence, that he to use the fund for any other partnership purpose, bad thought the boat was capable of carrying what coal she | faith in constituting the partnership is not a legal inhad on, does not establish that the boat was seawor- ference from such a transaction, and this, although thy. This was not enough in the face of the fact that the expectation that the new firm would make the within twenty-four hours after she started, without purchase existed when the partnership was formed. any apparent cause or reason, she sank at the dock The case of Lawrence v. Merrifield, decided in the New where she was moored. Nor does the fact that she | York Superior Court, and reported in 10 J. & S. 36, and performed other voyages safely prove her seaworthi- affirmed in this court (73 N. Y. 590), tends to support ness in contradiction of the testimony showing her

the conclusion we have reached upon this branch of loss and destruction. It cannot be said that a vessel the case. A provision of the partnership articles that which, after a voyage of two or three hours, without the special partner should bear a proportionate share encountering any danger or peril, sinks and disap. | of the losses, is not violative of said act, as there is pears, was sound and seaworthy. As the case stood nothing therein prohibiting the general partner from upou the evidence given, it is very clear that the court extending his liability by agreement with his partners were entirely justified in dismissing the complaint. or assuming risks beyond the loss of capital. Au omisVan Wickle v. Mechanics', etc., Ing. Co. Opinion by sion to state in the notice published all the details of Miller, J. [See 26 Am. Rep. 129; 11 Eng. Rep. 206, the partnership is not a failure to comply with the pro32.-Ed.]

visiou requiring publication of the terms of the part[Decided Nov. 25, 1884.]

nership if it contains all the facts required, the provisLIMITED PARTNERSHIP-CONTRIBUTION MUST BE IN

ion is satisfied by a publication of the terms of the

certificate. The name of one of the newspapers in CASH-MAY DEAL WITH SPECIAL PARTNER-CHANGED

which notice directed to be published was TO LIMITED-PROVISION AS TO SHARE OF LOSSES

changed after publication was commenced. Held, that OMISSION IN NOTICE-NAME OF NEWSPAPER CHANGED. -(1) It is well settled that under the Limited Partner

this did not affect the validity of the publication; that ship Act the contribution of capital by the special

the identity of the paper was not lost by the change of

name. Metropolitan Nat. Bank of New York v. Sirret. partner must be made iu cash, and that payment in any thing else will not satisfy its requirements. Van Opinion by Andrews, J. [(1) See ante, 184.] Lugen v. Whitman, 62 N. Y. 513; Durant v. Abendroth, [Decided Nov. 25, 1884.] 69 id. 148. (2) There is nothing in the Limited Part- INSURANCE-GENERAL LANGUAGE OF POLICY-SPECnership Act which prohibits a limited partnership from IAL INDORSEMENTS TO CONTROL-LIABILITY OF COMdealing with or buying goods for its business from the PANY FOR LOSS.-Defendant and others issued an open special partner. Trausactions between the firm and policy of marine insurance, which consisted of a the special partner may be fraudulent in fact as to the printed form which provided that its general language creditors of the firm. But there is no disability to en- should be controlled by indorsements of special risks, gage in such dealings imposed by the terms of the act, as made from time to time, “touching the adventures bor are such dealings, fairly conducted, inconsistent and perils " insured against. The polioy declared that with the purposes or objects of a limited partnership. “in this voyage they are of the seas,

and all That such dealing is permitted has been decided other perils, losses and misfortunes that have or shall by the Supreme Court of Pennsylvania, under a stat- come to the hurt, detriment or damage of the said ute almost identical with our own, and the same prin- goods and merchandise, or any part thereof." A subciple is recognized in the French law, from which the sequent provision however declared that “vegetables principle of limited partnership is derived. MoKnight and roots * * and all other articles that are perv. Ratcliff, 44 Peun. St. 156; Troubat Lim. Parta., $ ishable in their own nature

are warranted 307. (3) There is nothing in the letter nor in the pol- by the assured free from average unless general.” It icy of the Limited Partnership Act to prevent a change was further provided that the adventure sball continue of an existing partnership into a limited one. The and endure until the said goods and merchandise shail practical convenience of such a proceeding in many be safely landed at

aforesaid. Plaintiff's ascases is manifest. It enables a general partner, who signor was iusured by indorsement upon said policy by reason of age or infirmity, or upon any other upon a quantity of potatoes, “said to contain 1615 barkround, desires to withdraw from the active manage- rels,” shipped in bulk on canal

boat named, ment of the business, to place it in the hands of his co

" from New York to Yonkers F. P. A.,” which ini. partners, risking only his capital, and at the same time tials, it was conceded, meant that the risk was free



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from particular average, i. e., that the assured should in the printed parts of the same contract. It hardly
only be accountable for a total loss. The boat arrived at needs the citation of authority to support the long es-
its port of destination with its cargo entire and in good tablished rule that the printed portions of a contract,
order, but after about 109 barrels of the potatoes had wheu repugnant, must be subordinated to those which
been taken out and delivered to the consignees in good are written, and that the latter are presumed, from the
order the boat sank with the remainder of the cargo, circumstance of their special and deliberate insertion
and most of it lost. In an action upon the policy, held, by the parties, to embrace their real iutent and mean-
that by the contract the insurers were exempted from ing. Leeds v. Mechan. Ins. Co., 8 N. Y. 351; Harper v.
the payment of any loss occurring only to a portion of Alb. Ins. Co., 17 id. 194; Harper v. N. Y. City Ins. Co.,
the property, their liability being confined to the ab- 22 id. 441. The rule requiring courts to construe con-
solute or constructive loss of the entire cargo, and that tracts so as to give effect to every expression contained
therefore when by the delivery in good order of a ma- therein, when it can reasonably be done, is undoubt-
terial part a total loss during the progress of the in- edly a salutary one, and should not be departed from;
sured voyage became impossible, such liability ter- but it is not applicable to a case where the repugnance
minated. The clause in the original policy covering between its various provisions is irreconcilable, and
any part of the subject insured, and continuing the the effect of the construction would be to defeat the
risk until the goods were safely landed, would, unex- main intent of the contracting parties in making it.
plained and unmodified, require the payment of a loss We think such a repugnancy exists in this case. Chad-
occurring through the destruction, by any of the perils sey v. Guion. Opinion by Ruger, C. J.
insured against, of any part of the insured property, [Decided Nov. 25, 1884.]
and would continue the insurance over the entire cargo
until it was discharged, even though a part had been
safely landed and secured from loss or destruction. KANSAS SUPREME COURT ABSTRACT.*
The special indorsement, on the other hand, excepts
the assured from the payment of a partial loss, and HIGHWAY-WILLFULLY OBSTRUCTING-PENALTY.-
provides indemnity only for a total loss of the whole Where one obstructs a public road or highway by the
cargo iusured. The provision in respect to the insur- erection and maintenance of a mill-dam for the sole
ance upon goods, etc., and “any part thereof," is un- purpose of supplying water power to run and operate
doubtedly qualified by the memorandum excepting a grist, flour and exchange mill owned by him, and

roots and vegetables " from any average unless gen- the back-water from the mill-pond formed by the dam
eral, and independent of the considerations, would renders the road unsafe for crossing, and practically
relieve the assurers from any loss upon the prop- | impassable, and to the notification of the road over-
erty insured unless it was total as to the whole sub- seer that the back-water from the dam and mill-pond
ject. Wadsworth v. Pacific Ins. Co., 4 Wend. 33; totally obstructs the road, insolently answers the road
Ralli v. Janson, 6 Ell. & Bl. 422; Morean v. U. S. Ins. overseer that “if he wants the water removed, to
Co., 1 Wheat. 219; De Peyster v. Sun Mut. Ins. Co., 19 warn out his men, and dip it out with buckets," held,
N. Y. 277. It was held in the case of Wadsworth y. that such a person is liable to the penalty for a willful
Pacific Ins. Co., supra, that an underwriter is not aca obstruction of the public road, under the provisions of
countable for a partial loss on memorandum articles, $ 17, ch. 89, Comp. Laws of 1879. Although the dam
except for general average, unless there is a total loss was erected and maintained for the sole purpose of
of the particular species, whether the particular arti- supplying water power to run and operate a grist,
cle be shipped in bulk or in separate boxes or packages. flour, and exchange mill owned by the appellants,
This also seems now to be settled law in England, as they acquired no right by the erection of the dam for
well as this country. Ralli v. Janson, supra; Waller. such a purpose to obstruct the highway either with
stein v. Col. Ins. Co., 44 N. Y. 204; Moreau v. U. S. their dam or by the flowage of water. “The purely
Ins. Co., supra. It is against a partial loss of any part public use of a highway is paramount to the quasi pub-
of this subject that the contract seeks to protect the as- lic purpose of a mill. Where the building of a dam
surers, and there is no rule of construction, which after overflows and obstructs the highway, the right to pro-
the risk attached, will permit the diminution by a deliv- ceed with the dam can only be secured by proceedings
ery in good order at the port of destination of a part vacating the highway, or by taking such steps, either
of the subject insured, and still keep alive the insur- raising the roadway or building a bridge, as may be
ance, without defeating the object sought to be ef- necessary to secure the free and unobstructed use of
fected by the special provision referred to. Moreau the highway.” Venard v. Cross, 8 Kans. 259. If the
v. U. S. Ing. Co., supra. The subject of the insurance term “willful" is construed only to mean desiguedly
here is entire, and is determined when the risk at- and purposely, then upon the agreed facts, the appel-
taches. Any subsequent dealing with the property by lants are guilty. If we give to it greater strength, and
the assured which results in the preservation of a sub- say that willful in this connection denotes “ governed
stantial part of it, so that it may be delivered in safety by a will; without yielding to reason ; obstinate, stub-
and in good order at the port of destination, discharges born, perverse, ivflexible," then the appellants are
the obligation of the assurers. Guerlain v. Col. Ins. guilty. And if we go further, and say that in order
Co., 7 Johns. 527. The various fallacies by which such to convict the appellants of willful obstruction, they
a contract as the present has been construed as in- must have committed an act “which a man of reason-
tended to cover a total loss of a part of the insured able knowledge and ability would know to be con-
subject, when it was shipped in separats boxes or pack. trary to his duty," then he must say that they are
ages, and valued separately, have now been rejected guilty, because with the knowledge that they had ob-
by the courts of the principal maritime countries. structed the road, they insolently answered the notico
Ralli v. Jonson, supra, and continental authorities of the road overseer, and in defiance of his order con-
cited, Wallerstein v. Col. Ins. Co., supra; Phil. on tinued to obstruct the public road. Territory v. Tay-
Ing., S 1773; 2 Pars. Ins. 292. Conceiving therefore lor, 1 Dak. 47; Fearnley v. Ormsby, 4 C. P. Div. (Eng.)
that there is an irreconcilable repugnance existing be- 136. See also State v. Castle, 44 Wis. 670; State v.
tween the provisions referred to, the contract must be Preston, 34 id. 675. State v. Raypholtz. Opinion by
construed so as to give effect to the stipulations con- Horton, C. J. [As to meaning of “willful" see 47
tained in the special indorsement, even though we are

Am. Rep. 311; 30 Alb. L. J. 434.-ED.] thereby required to nullify other provisions contained

*To appear in 32 Kansas Reports.

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