1. The act of March 3, 1865, 13 Statutes at Large, 501, which
provides by its fourth section a mode by which parties who submit
cases to the court without the intervention of a jury, may have the
rulings of the court reviewed here, and also what may be reviewed
in such cases, binds the federal courts sitting in Louisiana as
elsewhere, and this Court cannot disregard it.
However, in a case where the counsel for both parties in this
Court had agreed to certain parts of the opinion of the court below
as containing the material facts of the case, and to treat them
here as facts found by that court, this Court acted upon the
agreement here as if it had been made in the court below.
2. Cotton in a warehouse was insured against fire, the policy
containing an exception against fire which might happen "by means
of any invasion, insurrection, riot, or civil commotion, or any
military or usurped power, explosion, earthquake, or hurricane." An
explosion took place in another warehouse situated directly across
a street which threw down the walls of the first warehouse,
scattered combustible materials in the street, and resulted in an
extensive conflagration embracing several squares of buildings, and
among them the warehouse where the cotton was stored, which, with
it, was wholly consumed. The fire was not communicated from the
warehouse where the explosion took place directly to the warehouse
where the cotton was, but came more immediately from a third
building which was itself fired by the explosion. Wind was blowing
(with what force did not appear) from this third building to the
one in which the cotton was stored. But the whole fire was a
continuous affair from the explosion and under full headway in
about half an hour. Held
that the insurers were not
liable, the case not being one for the application of the maxim
"causa proxima, non remota, spectatur."
Tweed brought suit in the Circuit Court for the Eastern District
of Louisiana against the Mutual Insurance Company on a policy of
insurance against fire which covered
Page 74 U. S. 45
certain bales of cotton in a building in Mobile known as the
Alabama Warehouse. The policy contained a proviso that the insurers
should not be liable to make good any loss or damage by fire which
might happen or take place "by means of any invasion, insurrection,
riot, or civil commotion, or any military or usurped power,
explosion, earthquake, or hurricane."
During the time covered by the policy, an explosion took place
in another building, the Marshall Warehouse, situated directly
across a street, which threw down the walls of the Alabama
Warehouse and scattered combustible materials in the street, and
resulted in an extensive conflagration embracing several squares of
buildings, among which the Alabama Warehouse, and the cotton stored
in it were wholly destroyed.
It is to be understood, however, that the fire was not
communicated directly from the Marshall Warehouse, in which the
explosion occurred, to the Alabama Warehouse, but that it came more
immediately from a third building -- the Eagle Mill -- which was
itself fired by the explosion. The wind (with what force did not
appear) was blowing in a direction from the Eagle Mill to the
Alabama Warehouse. But the whole fire was a continuous affair from
the explosion, and under full headway in about half an hour.
Page 74 U. S. 46
Upon this state of facts the court below held that the principle
"causa proxima, non remota, spectatur"
applied, and that
accordingly the fire which consumed this cotton did not "happen or
take place by means of an explosion." It therefore gave judgment
for the plaintiff below. The correctness of this view was the
question now to be decided here on error.
The case was tried by the court below without a jury. There was
no bill of exceptions nor any ruling on any proposition of law
raised by the pleadings. The evidence seemed to have been copied
into the transcript, but whether it was all the testimony, or how
it came to be there, there was nothing to show. However, in the
court's opinion (or, as it was styled, "reasons for judgment"), the
learned judge below quoted considerable portions of the evidence in
order to show the grounds for the conclusion which he had reached.
And the counsel in this Court agreed to certain parts of the
opinion so given as presenting a correct statement of the case.
Page 74 U. S. 50
MR. JUSTICE MILLER delivered the opinion of the Court.
There is in this case, as presented by the transcript, nothing
which a writ of error can bring here for review tested by the rules
of the common law.
The distinction between law and equity prevails in the federal
courts sitting in Louisiana in the modes of proceeding,
notwithstanding the Civil Code, which governs the practice as well
as the rights of parties in the state courts. On account of the
peculiarity in practice in that state, it has been decided in
several cases coming from the state courts
Page 74 U. S. 51
of Louisiana to this Court by writ of error that we would regard
the statements of fact found in the opinions of the court as part
of the record where they were in themselves sufficient and
otherwise unobjectionable. And perhaps this may in practice have
been extended to cases from the federal courts of that district.
But in regard to the latter, we are not now at liberty to do so.
The Act of March 3, 1865, *
by its fourth
section, provides a clear and simple mode by which parties who
submit cases to the court without the intervention of a jury may
have the rulings of the court reviewed here, and also prescribes
what may be reviewed in such cases. This statute, which is but a
reproduction of the system in practice in many of the states, is as
binding on the federal courts sitting in Louisiana as elsewhere,
and we cannot disregard it.
We are asked in the present case to accept the opinion of the
court below as a sufficient finding of the facts within the statute
and within the general rule on this subject. But with no aid
outside the record, we cannot do this. The opinion only recites
some parts of the testimony by way of comment in support of the
judgment, and is liable to the objection often referred to in this
Court that it states the evidence, and not the facts as found from
that evidence. Besides, it does not profess to be a statement of
facts, but is very correctly called in the transcript "reasons for
But the counsel for both parties in this Court have agreed to
certain parts of that opinion as containing the material facts of
the case, and to treat them here as facts found by the court, and
inasmuch as they could have made such an agreement in the court
below, we have concluded to act upon it here as if it had been so
Upon an examination of the facts thus stated, and placing upon
them that construction most favorable to the judgment of the court,
we are of opinion that it cannot be sustained.
The only question to be decided in the case is whether
Page 74 U. S. 52
the fire which destroyed plaintiff's cotton happened or took
place by means of the explosion, for if it did, the defendant is
not liable by the express terms of the contract.
That the explosion was in some sense the cause of the fire is
not denied, but it is claimed that its relation was too remote to
bring the case within the exception of the policy. And we have had
cited to us a general review of the doctrine of proximate and
remote causes as it has arisen and been decided in the courts in a
great variety of cases. It would be an unprofitable labor to enter
into an examination of these cases. If we could deduce from them
the best possible expression of the rule, it would remain after all
to decide each case largely upon the special facts belonging to it,
and often upon the very nicest discriminations.
One of the most valuable of the criteria furnished us by these
authorities is to ascertain whether any new cause has intervened
between the fact accomplished and the alleged cause. If a new force
or power has intervened of itself sufficient to stand as the cause
of the misfortune, the other must be considered as too remote.
In the present case, we think there is no such new cause. The
explosion undoubtedly produced or set in operation the fire which
burned the plaintiff's cotton. The fact that it was carried to the
cotton by first burning another building supplies no new force or
power which caused the burning. Nor can the accidental circumstance
that the wind was blowing in a direction to favor the progress of
the fire towards the warehouse be considered a new cause. That may
have been the usual course of the breeze in that neighborhood. Its
force may have been trifling. Its influence in producing the fire
in the Alabama Warehouse was too slight to be substituted for the
explosion as the cause of the fire.
But there are other causes of fire mentioned in the exempting
clause, and they throw light on the intent of the parties in
reference to this one. If the fire had taken place by means of
invasion, riot, insurrection, or civil commotion, earthquake, or
hurricane, and by either of these means the Marshall Warehouse had
been first fired, and the fire had
Page 74 U. S. 53
extended, as we have shown it did, to the Alabama Warehouse,
would the insurance company have been liable?
Could it be held as necessary to exemption that the persons
engaged in riot or invasion must have actually placed the torch to
the building insured, and that in such case if half the town had
been burned down, the company would have been liable for all the
buildings insured except the one first fired? Or if a hurricane or
earthquake had started the fire, is the exemption limited in the
These propositions cannot be sustained, and in establishing a
principle applicable to fire originating by explosion, we must find
one which is equally applicable under like circumstances to the
other causes embraced in the same clause.
Without commenting further, we are clearly of opinion that the
explosion was the cause of the fire in this case within the meaning
of the policy, and that the judgment of the circuit court must
Reversed and a new trial granted.
* 13 Stat. at Large 501.