Corey v. Ripley.

before the tribunal that granted it; at the expiration of that period you will have had your day in court, and must thereafter be forever silent," interest reipublicæ est sit finis lititium. There is but one way of impeaching a discharge in bankruptcy, under the bankrupt act of 1867, and that is the mode expressly provided for in the 34th section of that act. It is by no means improbable that the experience of contesting the validity of such discharges before the state courts taught congress the wisdom of restricting the jurisdiction over this subject to the federal courts.

But there are still more serious objections to the construction contended for by the plaintiff's counsel. The constitution of the United States confers upon congress the power to establish a uniform system of bankruptcy. This grant of powers carries with it jurisdiction over the person and property of the bankrupt, and authority to provide courts, and all other instrumentalities necessary and proper, to carry into effect the general purpose of a bankrupt law. The authority of congress over this subject being paramount to state authority, where it has provided a mode of dealing with a bankrupt's estate that mode only can be pursued, and it would be an infringement of the paramount law if state courts should adopt another and a different mode. The authority conferred by the bankrupt act of 1867 upon United States courts, to set aside and annul a discharge in bankruptcy, is incompatible with the exercise of the same power by a state court. If the validity of a discharge in bankruptcy may be impeached by a state court, this may be done, though such discharge had been declared valid in the mode provided in the bankrupt act; and the anomaly would be presented of a discharge recognized as valid by the courts of the United States and invalid by a state court. Sturgess v. Crowningshield, 4 Wheat. 196; Stetson v. City of Bangor, 56 Me. 286.

The distinction made by the counsel for the defendant, between actions brought before the debtor petitions to be admitted a bankrupt, and those brought afterward, is unsound. The authority of congress over the subject-matter is the same in both cases; and it has ever used that authority appropriately to reach that class of cases. In respect to the question at issue in the case at bar, the same principles govern in either case.

According to the agreement of the parties there must be

Judgment for the defendant for his costs in the law court only.

White v. Republic Fire Insurance Company.

WHITE V. REPUBLIC FIRE INSURANCE COMPANY.

(57 Maine, 91.)

Liability of insurer for damage, etc., caused by removal of goods.

Where insured goods are removed from a building apparently in imminent danger of being destroyed by fire, the insurers are liable for the reasonable damage and expense of removal, although the building is not in fact burned.

THE facts are stated in the opinion.

H. W. Gage and S. C. Strout, for the plaintiff.

Davis & Drummond, for the defendants.

DICKERSON, J. Assumpsit on two policies of fire insurance, submitted on report.

On the night of the conflagration of July 4, 1866, at Portland, the plaintiff, apprehensive that the building known as Ware's block, on the northerly side of Federal street, the third story of which was occupied by him for the manufacture of brushes, would be destroyed by fire, removed his stock, consisting of bristles and manufactured brushes, and his tools, from the building. The block was not destroyed or injured by the fire; and the plaintiff brings this action to recover the damages thus done to his stock and tools, and for the expense incurred in removing them.

The important and interesting question is raised, whether the plaintiff's loss is covered by the policy. In general, the assured is entitled to indemnity, unless the loss happens from the qualities or defects of the subject insured, his own fault, or some peril for which he is answerable. 1 Phillips on Ins. 639.

It is argued by the learned counsel for the defendants, that this is not a loss by fire; that fire was not the proximate cause of the damage; and that therefore the loss is not covered by the policy. While it has been held that a loss by lightning without combustion is not a loss by fire, it has also been held that the loss of a building by being blown up by gunpowder, and demolished to stop a conflagration, is within the terms of a fire policy. Babcock v. Montgomery Co. Mut. Ins. Co., 6 Barb. 637; Keniston v. Merrimack Co. Mut. Ins. Co., 14 N. H. 341; City Ins. Co. v. Corlies, 21 Wend. 367.

White v. Republic Fire Insurance Company.

Damage done to goods by having water thrown upon them in extinguishing a fire, and a loss of goods by theft after they have been removed from a fire, are covered by the policy. Hillier v. Alleghany Ins. Co., 3 Penn. 470; Witherell v. Maine Ins. Co., 49 Me. 200.

A bolt may be loosened, or a timber started, in a storm, without causing any loss until the subsequent action of the water or climate, or the greater strain of a different cargo has so augmented the injury, as to cause the loss of the vessel; and yet such a loss is a loss by the storm. Stephenson v. Piscataquis Ins. Co., 54 Me. 76.

So if, after a storm has subsided, the boat is lost by reason of the disabled condition of the ship, in consequence of damage done during the storm, it is a loss by the storm. Potter v. Ocean Ins. Co., 3 Sum. 27.

In these and like cases the direct proximate cause of the damage or loss is not to be found in the fire, or the storm, but in the water, the removal of the goods, the action of the climate, or strain of the cargo, or the disabled state of the ship. If courts were required to hold that no loss is caused by a policy of insurance unless the peril insured against is directly operating upon the subject insured at the time of the ultimate catastrophe, they would deny the right to recover in many cases where it has long been recognized by courts of the highest authority. The legal maxim, causa proxima spectatur, is by no means of unusual application in its strict technical sense.

If a loss from demolishing a building with gunpowder to stay the progress of a conflagration comes within the terms of a fire policy, ought not the damages and expense of removing such building to be recoverable, if the object in view could be as speedily and successfully accomplished?

In such cases is not the fire, the impending conflagration, the existing operating cause alike of the destruction of the building or of its removal from danger? Is the assured entitled to recover damages for one of the effects of the same procuring cause, and not for the other? If, by reason of the immobility of real estate and the necessity of speedy action on such occasions, it becomes neces sary to demolish a building, at the cost of the underwriters, to prevent it and other property from being destroyed by fire, does not the analogy of the law require that they should also be chargeable for the damage and expense of saving personal property from destruc

White v. Republic Fire Insurance Company.

tion by removing it to a place of safety? Is not the producing cause of both results the same?

So if the underwriters are liable for damage done to goods by having water thrown upon the building in which they are stored, to extinguish the fire, ought they not, also, to be liable for damage done to goods, in time of imminent peril, by throwing water upon the building containing them to prevent it and them from destruction, though actual ignition has not taken place? In both cases, technically speaking, the water and not the fire is the direct proximate cause of the damage. It is neither the policy of the law nor public policy to make it for the interest of the assured, in case of fire, to postpone the use of the means for extinguishing the fire, and the removal of the goods, until the building containing them is actually on fire. In many, if not most, cases, such delay would be tantamount to consigning both goods and building to destruction. Would the interests of insurance companies or the public morals be subserved by the establishment of such a policy?

The question presented is one of considerable difficulty, and one upon which the authorities are at variance. While the suprem court of Illinois, in a case like the one at bar, have held that the undera riters are liable for the damage to the goods and the expense of removing them, the court in Pennsylvania have denied them liability. Case v. Hartford Ins. Co., 13 Ill. 676; Hillier v. Alleghany Ins. Co., 3 Penn. 470. We think the liability of the underwriters, in these and similar cases, depends very much upon the imminence of the peril, and the reasonableness of the means used to effect the removal. The necessity for removal is analogous to the necessity that justifies the sale of a disabled vessel, by the water. It is not to be determined by the result alone, but by all the circumstances existing at the time of the fire. The necessity for removal need not be actual, that is, the building may not have been actually burned, since this may have been prevented by a change in the direction or force of the wind, the more skillful or efficient management of the fire engines, or the sudden happening of a shower, or a like unforeseen event. But the imminence of the peril must be apparent, and such as would prompt a prudent uninsured person to remove the goods; it must be such as to inspire a conviction that to refrain from removing the goods would be the violation of a manifest moral duty; the damage and expense of removal, too, must be such as

White v. Republic Fire Insurance Company.

might reasonably be incurred under the circumstances of the occasion. Angel on Fire Ins., § 117.

When such a case exists, we think it the better opinion to hold that the underwriters are chargeable for the damage and expense of removing the goods, as this result seems most in accordance with reason, the analogies of the law, and public policy. Such, also, is the conclusion of Mr. Phillips, the learned commentator on the law of insurance. "It seems," he says, "to be the better doctrine, and the one most closely analogous to the jurisprudence on the subject of insurance generally, that the underwriters are liable for such damage and expense, reasonably and expediently incurred, as being directly occasioned by the peril insured against." 1 Phillips' Ins. 645, 646.

The doctrine we maintain on this subject is applicable to a large class of cases, recognized by the law of insurance, and is found in that well-established principle of, the law of insurance, that insurance against, or an exception of a peril, besides the consequences immediately following it, may include, also, a loss or expense arising on account of it, although what is insured against, or exceptel. does not actually occur, provided the peril insured against, or excepted, is the efficient acting or imminent cause or occasion of the loss or expense. 1 Phillips' Ins., § 1131.

The proximity of the fire to the building occupied by the plaintiff, its rapid progress, terrible intensity and fearful ravages, leave no reason to doubt but the goods were removed through a reasonable apprehension that they would be destroyed by fire if suffered to remain. Their situation, too, in the third story, requiring earlier attention, rendered their condition more hazardous than if they had been on the first floor. A prudent uninsured person could scarcely have omitted the precaution taken by the plaintiff.

In removing the goods the plaintiff was bound to exercise that reasonable degree of care which was suited to the circumstances of the occasion; and, when we consider the situation of the goods, the imminence of the peril, and the terror and consternation naturally excited by the progress and fury of the conflagration, we are not prepared to say that he did not exercise such care.

Under the rule for apportioning the damages between the two defendant companies, agreed upon by the parties, if the court should find that the plaintiff is entitled to recover, the plaintiff is to have judgment against the Relief Insurance company for the sum of one VOL. II.-4