not the result of insanity, remotely occasioned by previous habits of gross indulgence in spirituous liquors. The law looks to the immediate and not to the remote cause; to the actual state of the party, and not to the causes which remotely produced it.1 (a) 1 United States v. Drew, 5 Mason, 28, per Story, J.; 1 Russell on Crimes, pp. 7, 8 (3d ed.). See Ray on the Medical Jurisprudence of Insanity, c. 24. In the jurisprudence of continental Europe, drunkenness is generally distinguished into three kinds, — (1.) Intentional, voluntarily induced in order to the commission of a crime while in that state; (2.) Culpable, by drinking without any intention to become drunken, but where the party might easily have foreseen that he would naturally become so; (3.) Inculpable, where such consequence could not easily have been foreseen, or where the party took due precautions against any injurious effects, as by directing his servants to confine him if he should become drunk, or where the drunkenness was justly attributable to others, or was the result of disease. In the first case, it is no excuse; in the second, it reduces the degree of criminality and mitigates the punishment; in the third, the liability to punishment ceases. See Professor Mittermaier's learned Treatise on the Effect of Drunkenness upon Criminal Responsibility, §§ vi-ix. (a) In Com. v. Hawkins, 3 Gray (Mass.), 466, which was an indictment for murder, the jury were thus instructed: "The rule of law is that, although the use of intoxicating liquors does to some extent blind the reason and exasperate the passions, yet, as a man voluntarily brings it upon himself, he cannot use it as an excuse or justification or extenuation of crime. A man, because he is intoxicated, is not deprived of any legal advantage or protection; but he cannot avail himself of his intoxication to exempt him from any legal responsibility which would attach to him if sober." Rafferty v. People, 66 Ill. 118. Intoxication brought on by taking laudanum, and excessive drinking for several days, producing a disordered state of the mind, may reduce the killing from that of INSURANCE. § 375. Subject-matters of the contract. The ordinary subjects of the contract of Insurance are (1.) Marine Risks; (2.) Losses by Fire; (3.) Lives, all which will be considered in their order. § 376. Declaration. In an action on a policy of insurance, whatever may be the subject, the declaration1 contains the fol 1 The following forms of counts, in the simplest cases arising upon marine policies, established in Massachusetts, are well adapted to the brevity of modern practice at common law in any of the United States: the plainaforesaid; and the to 1. On a SHIP, for a TOTAL LOSS. "In a plea of the case, for that on — tiff was owner of the ship John, then lying in the harbor of said Company, in consideration of a premium therefor paid to them by the plaintiff, made a policy of insurance upon the said ship for a voyage from the said Cadiz in Spain, and at and from said Cadiz to her port of discharge in the United States; and thereby promised to insure for the plaintiff ten thousand dollars upon the said ship for the said voyage against the perils of the seas, and other perils in the said policy mentioned; (a) and the plaintiff avers that the said ship did on said on the voyage described in said policy, and, whilst proceeding therein, was, by the perils of the seas, wrecked and totally lost; of which the said insurance company, on had notice, and were bound to pay the same on demand (or in sixty days); yet they have never paid the said sum of ten thousand dollars, though requested (or though sixty days have elapsed). To the damage," &c. sail from 2. Count for a PARTIAL LOSS, and for CONTRIBUTION TO A GENERAL AVERAGE. [State the plaintiff's interest, the voyage, and the insurance, as in the last precedent, to (a), and proceed as follows: -] 66 and the same company did in and by the same policy further promise, that, in case of any loss or misfortune to the said ship, it should be lawful for the plaintiff and his agents to labor for and in the defence and recovery of the said ship, and that the said company would contribute to the charges thereof, in proportion as the said sum assured by them should be to the whole sum at risk; and the plaintiff avers, that the said ship did, on —, sail from said on the voyage aforesaid; and, whilst proceeding therein, was, by the perils of the seas, dismasted, and otherwise damaged in her hull, rigging, and appurtenances; insomuch that it was necessary, for the preservation of the said ship and her cargo, to throw over a part of the said cargo; and the same was accordingly thrown over for that purpose; by means of all which the plaintiff was obliged to expend two thousand dollars in repairing the said ship at -, and also (or, and is also liable to pay) the sum of five hundred dollars as a contribution to and for the loss occasioned by the said throwing over of a part of the said cargo; and the said ship also suffered much damage that was not repaired in said Cadiz; of all which the said company on had notice, and became bound to pay the same in sixty days; yet, though said sixty days have elapsed, they have never paid the said sum of ten thousand dollars, nor any part thereof. To the damage," &c. 3. Count for a TOTAL LOSS OF CARGO BY FIRE. "In a plea of the case, for that on a certain brigantine called The William was lying at and the plaintiff was the owner of the cargo (or of certain goods), then laden or about to be laden on board of the said vessel; and the said C. D., in consideration of a certain premium therefor paid to him by the plaintiff, made a certain policy of insurance in writing upon the said cargo (or goods), at and from said to Hamburg, or any other port or ports in the north of Europe, and at and from thence to said - or her port of discharge in the United States; and the said C. D., by said policy, promised to insure for the plaintiff lowing allegations, which must be proved by the plaintiff, if not admitted by the pleadings: (1.) The policy; (2.) The plaintiff's interest in the subject insured, and the payment of the premium ; (3.) The inception of the risk; (4.) The performance of any precedent condition, or warranty, contained in the policy; and (5.) The loss, within the terms and meaning of the policy. § 377. Proof of policy. And, FIRST, as to MARINE INSURANCE. In an action by the assured, the first step in the trial is the proof of the policy. The instrument itself, being the best evidence, must be produced and proved; or its loss must be accounted for, and its contents proved by secondary evidence.1 (a) If it was signed dollars on the said cargo (or goods) for the voyage aforesaid, against the perils of fire, and other perils in said policy specified; and the plaintiff avers, that the said vessel, with the said cargo (or goods) on board, did on sail from said- on the voyage aforesaid; and afterwards, during the said voyage, whilst the said vessel, with the said cargo on board, was lying at the port of Altona, in the north of Europe, the said cargo (or goods) was burned, and wholly destroyed by fire, of which the said C. D. on had notice, and became bound to pay the same in sixty days; yet he has not paid the sum of dollars, nor any part thereof. To the damage," &c. 4. Count for a TOTAL LOSS OF FREIGHT, BY RESTRAINT, DETAINMENT, &c.: 66 for that on the plaintiff was interested in the freight of a vessel called The George, then bound on a voyage hereinafter described; and the said insurance company, in consideration of a premium therefor, paid to them by the plaintiff, made a policy of insurance upon the said freight for the voyage from to one or more ports beyond the Cape of Good Hope, one or more times, for the purpose of disposing of her outward, and procuring a return, cargo, and at and from thence to and thereby promised to insure for the plaintiff three thousand dollars upon the said freight for the voyage aforesaid, against the perils of enemies, pirates, assailing thieves, restraints, and detainments of all kings, princes, or peoples, of what nation or quality soever, and against other perils in the said policy mentioned; and the plaintiff avers, that the said vessel did on sail from said on the voyage aforesaid, and afterwards, during said voyage, was forcibly taken on the high seas (or, at the Island of Sumatra, in the Indian Ocean) by certain persons to the plaintiff unknown, and detained and prevented from performing the said voyage, and thereby the said freight was wholly lost to the plaintiff; of all which the said insurance company," &c. 1 See ante, vol. i. §§ 557, 558. (a) It was held in the earliest cases in the law of Insurance that an oral contract of insurance is valid, if it is made in conformity with the common-law rules in respect to such contracts, and this continues to be the law at the present day, though the ordinary method of insurance is by a written contract called the policy. Not only is an oral contract of insurance valid, but, when the insurer is an organized company, the regulations in the charter governing the mode of execution of the policy do not by implication prevent the company from making an oral contract of insurance, nor establish rules for its execution; nothing short of a direct statutory provision will make an oral contract invalid. The ordinary cases of oral contracts at the present day are contracts to protect the insured property till the time of issuing the policy, or verbal contracts to take the risk, followed by a loss before the policy is issued. If the contract is complete, in such cases, it may be enforced though verbal. Putnam v. Home Ins. Co., 123 Mass. 324; Patterson v. Benjamin Franklin Ins. Co., 81 Pa. St. 454; People's Ins. Co. v. Paddon, 8 Ill. App. 447; Westchester Fire Ins. Co. v. Earle, 33 Mich. 143; Union, &c. Ins. Co. v. Connecticut, &c. Ins. Co., 19 How. (U. S.) 318; Sanborn v. Fireman's Ins. Co., 16 Gray (Mass.), 448; Cooke v. Etna Ins. Co., 7 Daly (N. Y.), 555; May, Ins. §§ 14-23. A contract of renewal, though it is not under seal, may be a valid renewal of a by another person, as the agent of the defendant, his agency must be proved.1 And proof of the signature by an agent will satisfy an allegation of signature by the defendant himself.2 Parol evidence of what passed at the time of making the policy is, as we have heretofore shown, inadmissible to affect the written agreement. (a) But the general usage of merchants may be shown to explain ambiguities or define the terms of the policy, though not to contradict its plain language. The general usage of trade, in the city where the insurance is effected, may also be proved for this purpose; but not the usage or practice in a particular office, or among a particular class of underwriters, where or to whom the party was not in the habit of resorting to effect insurance,5 and which, therefore, cannot be presumed to have been known and referred to by both parties as the basis of the contract; for it is on this ground only that evidence of usage is admitted." 1 For the proof of agency, see supra, tit. Agency, §§ 59-67. See also ante, vol. i. SS 416, 417; Brockelbank v. Sugrue, 5 C. & P. 21. Proof of a general agency is sufficient proof of authority to effect insurance on behalf of the assured. Barlow v. Leckie, 4 J. B. Moore, 8. 2 See supra, tit. Bills of Exchange, § 158; Nicholson v. Croft, 2 Burr. 1188. 8 See ante, vol. i. §§ 275-305. 4 See ante, vol. i. §§ 292-294; Robertson v. Money, Ry. & M. 75; Uhde v. Walters, 3 Campb. 16. 5 Gabay v. Lloyd, 3 B. & C. 793; Astor v. Union Ins. Co., 7 Cowen, 202; Coit v. Commercial Ins. Co., 7 Johns. 385. Eager v. Atlas Ins. Co., 14 Pick. 141. sealed policy. Lockwood v. Middlesex Mut. Ins. Co., 47 Conn. 553. In England it has now been enacted by statute that a contract for marine insurance is void unless it is contained in a formal policy. 30 Vict. c. 23, §§ 7, 9; Ionides v. Pacific Ins. Co., L. R. 6 Q. B. 674, 7 Q. B. 517; Fisher v. Liverpool Marine Ins. Co., L. R. 8 Q. B. 469, 9 Q. B. 418. The recital in a premium note that a policy has issued is prima facie evidence of that fact, as against the maker of the note. N. E. M. F. Ins. Co. v. Belknap, 7 Cush. (Mass.) 140. So this giving of the note is evidence of the organization of the company. Williams v. Cheney, 3 Gray (Mass.), 215. So the recital in a policy of the receipt of the premium is prima facie, and only prima facie, evidence of that fact. May on Ins. § 581. See also ante, § 162, n. (a) Franklin Fire Ins. Co. v. Martin, 40 N. J. L. 568. Parol evidence is however admissible, when the question is on the sufficiency or truth of the answers of the insured in his application for insurance, to show that the agent of the company who took down the answers, omitted or misstated some of the answers without the knowledge of the insured. Texas Banking, &c. Co. v. Stone, 49 Tex. 4; Planters' Ins. Co. v. Sorrels, 57 Tenn. 352. But not to show that the policy was intended to cover a different interest from that which it purports to protect (Bishop v. Clay, &c. Ins. Co., 45 Conn. 430), or to show different stipulations (Hartford, &c. Ins. Co. v. Davenport, 37 Mich. 609). Parol evidence is also admissible to show that the company waived a forfeiture, though this contradicts the statements in the receipts for the premiums. McLean v. Piedmont, &c. Ins. Co., 29 Gratt. (Va.) 361. The recitals of the premium notes are prima facie evidence of the facts stated therein. New England, &c. Ins. Co. v. Belknap, 7 Cush. (Mass.) 140; Williams v. Cheney, 3 Gray (Mass.), 215; May on Ins. § 581; ante, § 162, n. § 378. Proof of interest. Secondly, as to the proof of interest. The plaintiff's interest in a ship may be shown, prima facie, by proof of possession, and acts of ownership; which may be made by the captain or other officer, or by any person having competent knowledge of the facts, without the production of any documentary evidence.1 But whenever the title to a ship comes strictly in question, no claim can be received in opposition to the modes. of conveyance required by the statutes.2 Thus, where the plaintiff claimed for a total loss as sole owner of a ship, whose register stood in the names of himself and another, parol evidence, offered to show that she was in fact purchased by himself, as sole owner, was held inadmissible. Where the interest is derived from a bill of sale, this document must be produced and proved as in other cases; accompanied by evidence of the registry, where this is required by statute, in order to render the other evidence admissible. But the certificate of registry is not alone sufficient to prove the plaintiff's interest in the ship, without proof of some correspondent act of ownership. Whether it is conclusive against the legal ownership of persons claiming title, but whose names are not found therein, seems to depend on the registry acts. In England it has been held conclusive; but in the United States, an insurable interest has been held sufficiently proved by evidence of a title at common law, in a plaintiff whose name did not appear in the register. This document, however, is not of itself evidence to charge a defendant as owner of the ship, without proof that he sanctioned and adopted it. Where the registry of a ship is required by law to be recorded in the custom-house, a certified copy of the record is, as we have seen, admissible in evidence.9 § 379. Interest, legal and equitable. It is not material whether the interest of the assured be legal or equitable. The interest of 1 Robertson v. French, 4 East, 130; Sutton v. Buck, 2 Taunt. 302; Wendover v. Hogeboom, 7 Johns. 308; Amery v. Rogers, 1 Esp. 207; Thomas v. Foyle, 5 Esp. 88. Abbott on Shipping, p. 78, by Shee. 3 Ohl v. Eagle Ins. Co., 4 Mason, 172. 4 Woodward v. Larkin, 3 Esp. 287. 64 Taunt. 657, per Gibbs, J. 6 Pirie v. Anderson, 4 Taunt. 652; 2 Phillips on Ins. p. 487; Flower v. Young, 3 Campb. 240. 7 Camden v. Anderson, 5 T. R. 709; Abbott on Shipping, p. 68, n. (1), by Story, J.; Id. p. 34, n. (2); Bixby v. Franklin Ins. Co., 8 Pick. 86; Lamb v. Durant, 12 Mass. 54; Taggard v. Loring, 16 Mass. 336; 2 Phillips on Ins. p. 488; Sharp v. United Ins. Co., 14 Johns. 201. s Abbott on Shipping, p. 63 (Story's ed.); Frazer v. Hopkins, 2 Taunt. 5; Smith v. Fuge, 3 Campb. 456; Sharp v. United Ins. Co., 14 Johns. 201. Ante, vol. i. § 484. |