PHENIX INS. CO. v. CHARLESTON BRIDGE CO., 65 F. 628

MORRIS, District Judge (after stating the facts as above). The reasons stated by the circuit judge for requiring the defendant to plead forthwith, and for directing the case to be placed on the trial calendar of the then pending term of the court, appear to us satisfactory, The time allowed the defendant in the state court to plead was not the 20 days after service, as prescribed by the state statute, hut the enlarged time fixed by the judge of that court, viz. the 10th of March, — a day certain.

That day had passed when the defendant filed the transcript of record in the circuit court on the 2d of April, and the defendant was in default. There was no rule of practice either in the circuit court, or prescribed by statute for the state practice, applicable to such a case, regulating the time for pleading where default had occurred between the time when the petition for removal was filed in the state court and the record was actually filed in the circuit court.

It was a case not provided for by rules, and of necessity a discretion remained in the judge to decide what reasonable terms should be imposed oh the defendant. The defendant had had from the 27th of January to the 2d of April to prepare its answer. It alleged no facts, so far as the record discloses, to show why it could not answer forthwith, and, as the record'shows, it filed an answer which an officer of the company had sworn to on the 1st of March. The case was not actually called for trial until a month, after the answer was filed.

It is manifest that there was nothing unreasonable or oppressive in requiring the defendant to plead without longer delay, and in requiring the case to be tried at that term. The state practice invoked was not applicable to a case in which .there had been a default in answering, or in which there had been a removal from one jurisdiction to another, and in which the regular conduct of the case had been by removal taken out of the control of the plaintiff.

Under the special circumstances of this removal, the default was an excusable one, but the judge, in prescribing the terms upon which the defendant might plead, was called upen to see to it that, while the defendant was not deprived of its defense, the plaintiff should not have to submit to a continuance which in all probability would have postponed the trial for a year. The circuit courts are required by

section 914 of the Revised Staintes to conform as near as may be to the practice of the state courts, but obviously conditions may arise from the peculiar situation of removed cases which may prevent the state practice from being strictly applied. The words “as near as may be,” in the act of congress, impose a discretion (Railroad Co. v. Horst, 93 U. S. 301), and devolve a duty upon the judge not to allow justice to be delayed by the application of state court rules to cases for which they were.; not intended and to which they ought not to be applied.

We find nothing in these rulings of which the defendant can justly complain, Coming now to the merits of the case, the question is whether the court rightly instructed the jury that they were to seek for the operating, originating, dominant, and efficient cause of the damage to the bridge, and, if they found it was the cyclone, then the policy 'covered the loss, but, if they found it to be the high water, hood, or freshet, then it did not; and whether the court was right in refusing the three prayers submitted by the defendant.

The rule of law is well settled that, where a particular peril is insured agamst, in order to be entitled to indemnity the assured must show that the particular peril caused the loss.. It is held that the peril which causes the loss is the one which is the predominating and efficient cause, the cause which produces the disaster without any new intervening cause, which of itself would have been sufficient to produce the result. This rule has been carefully stated and elucidated in Insurance Co. v. Tweed, 7 Wall. 44; Insurance Co. v. Boon, 95 U. S. 131; Railway Co. v. Kellogg, 94 U. S. 469-473.

In these and other cases in the supreme court, it has been so fully explained that the-rule needs no further discussion.

In the instruction g iven to the jury they were told that from the testimony they must ascertain what was the real cause of the injury, — the cause but for which the injury would not have happened; that, if the operating, originating, efficient cause was high water, flood, or freshet, the policy did not cover the loss, and the plaintiff could not recover; but, if the operating, originating, dominant, and efficient cause was a cyclone, tornado, or windstorm, then the policy did cover the loss, and 'hey •must find for the plaintiff.

This instruction fully stated the law and the issue of fact to be decided by the jury, and there can ba no .objection to it unless it arises out of the restriction written in the policy exempting the company from liability for any loss occurring by reason of high water, floods, or freshets; and the precise question is whether there was evidence which required this instruction to be qualified by any of those aslced for by the insurance company. The testimony showed that the bridge was broken by the heavy schooners and barges driven against it by the cyclone.

This was the testimony of men who were on the vessels when they went through the bridge, driven up the river by the wind, and who saw the different spans of the structure when they fell. The only direct testimony which qualified this in any way was that of one of these witnesses who says that one span of the bridge was down before the schooner he was on reached it. He testifies, however, that that span was blown down by the wind; that the water was not very rough; and that the water did but little damage.

The inference is sought to be drawn on behalf of the insurance company that, as the water was so abnormally high, it must have damaged the bridge, and particularly the ends, which were not so high as the middle. But the principal damage was not at the ends, and in the middle the floor of the bridge was, as testified by the only persons who saw it, from five to six feet above the highest water during the cyclone.

So far as the evidence discloses, it would have been mere speculation for the jury to have found that any part of the damage was caused by the high water, and there was no testimony whatever from which they could have found what proportion of the loss, if any, was attributable to that cause. In Phillips on Insurance these rules are stated:

Section 1136: “In the case of the concurrence of two causes of loss, one at the risk of the assured and the other insured against, or one insured against by A. and the other by B., if the damage by the perils respectively can be discriminated, each party must bear his proportion.”

Section 1137: “If, where the assured and the underwriters or different underwriters are each responsible for different causes of loss which concur in the loss, and the damage from each cause cannot be distinguished, the party responsible for the predominating, efficient cause, or that by which the operation of the other is directly occasioned as being merely incidental to it, is liable to boar the loss.” These rules are expressly approved in Howard Fire Ins. Co. v.

Norwich, etc., Co., 12 Wall. 194-196, and they are applicable to the defense in the present case, and justified the rejection of the defendant’s prayers. These prayers all ask the court to submit to the jury to find that there was damage caused by the high water, or by the water in the grasp of the wind or under the influence of and made destructive by the wind, and, if they should so find, then, as to so much of the damage as was thus caused by the water, the plaintiff could not recover.

Without deciding whether this was a correct statement of the law, we think these prayers were objectionable, because there was no evidence by which the jury could discriminate the amount of the water damage. The cause of loss which the insurance company was to be responsible for was the cyclone; the cause of loss which the bridge company was itself to bear was high water. The testimony on behalf of the plaintiff strongly tended to prove that the cyclone was the solé cause of the loss, and that no damage resulted from the high water. The jury found that the eyclone was the predominating, efficient cause.

The defendant produced no testimony by which, if there was any water damage, it could be discriminated and separated from the wind damage. The case, therefore, came within the rule that, when the damage from each cause cannot be distinguished, then the. party responsible for the damage caused by the predominating, efficient cause is liable for the whole loss. Finding no error in the rulings of the court, the judgment is affirmed.