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Opinion of the Court.

jury in that case, the abandonment had been accepted. The plaintiff there rested its case entirely upon the acceptance of the abandonment of the vessel, and the evidence upon that question was, for some reason, largely different from the evidence on this trial.

The court in this case left the question of abandonment to the jury, and the finding was against the plaintiff. No reference is made, in the opinion, on the motion for a new trial, to this question, though it is stated that the opinion “covers all the points made in the briefs of counsel.” But certain rulings of the court in relation to this subject are questioned by the alleged errors under consideration.

“Whether the insurer accepts or not is a matter of construction of his words and conduct. Any act done for the purpose of making the most of the property, to whomsoever it may prove to belong, ought not to be construed against the party who thus seeks the common interest.” 2 Phillips on Ins. SS 1692, 1693. Any act of the underwriter in consequence of an abandonment, which could be justified only under a right derived from it, may be decisive cvidence of an acceptance. Peele v. Merchants' Ins. Co., 3 Mason, 27; Gloucester Ins. Co. v. Younger, 2 Curtis, 322. The question for the jury was whether upon the evidence, taken in connection with the provisions of the policy, there were any such acts.

As it is not contended that there was any evidence of actual acceptance, and as it clearly appeared that the rescuing expedition was sent before the telegraphic notice of abandonment was given, and as the evidence did not tend to show that that expedition was sent with the intention of rescuing “and repairing” the Spartan, or that the insurers brought the Spartan to Detroit, (if they did bring her,) with the intention of “repairing her," each one of the requested instructions was objectionable.

Assuming that an offered abandonment may be accepted even when the assured has no right to abandon, and that taking possession to make partial repairs, not amounting to indemnity, may not be authorized by the policy, and that taking possession of and holding a vessel for an unreasonable time, or taking

VOL. CXXXVI-28

Opinion of the Court.

possession after a peremptory abandonment, without qualification or reservation, are such acts as imply and constitute an acceptance of the abandonment and liability for total loss, and that by the abandonment and acceptance the whole interest is transferred to the underwriters; Copelin v. Ins. Co., 9 Wall. 461; Shepherd v. Henderson, 7 App. Cas. 49; Northwestern Transp. Co. v. Thames &c. Ins. Co., 59 Michigan, 214; Cincinnati Ins. Co. v. Bakewell, 4 B. Mon. 541; Reynolds v. Ocean Ins. Co., 22 Pick. 191 ; the question still remains what the facts really are in respect to the conduct of the underwriters. The plaintiff insists that although the captain moved the Spartan to Detroit and placed her in the dry dock, and to some extent, if not wholly, superintended the repairs, the plaintiff was not bound by his action, because he was not employed by it, but by the charterers, and that the master, after abandonment, becomes the agent of the insurers.

But it is only after a valid abandonment and the passage of the title that the captain thus becomes the insurer's agent, and to concede that here begs the very question which was at issue. Phillips on Insurance, $ 1732.

The first and second errors were that the court ruled that no authority was shown on the part of Captain Gibson to bind the defendant in respect to the repairs made upon the Spartan, and in striking out the testimony respecting Gibson's acts and statements. Crosby, who was the agent of the insurance company at Buffalo, testified that he "gave no orders or instructions to any person or persons whatsoever as to the repairs on the steamer, nor did he assume any responsibility therefor; that he sent Gibson to Detroit to act on the survey on the Spartan, and afterwards sent him to see that no more repairs were put on the steamer than were called for by the survey, as the Spartan had been damaged on previous occasions and not properly repaired;" and further, that " Mr. Gibson was sent by the insurers from Buffalo to hold a survey on the steamer before she was repaired.” This is all the evidence bearing on Gibson's authority, and the court was justified in its action. Why Gibson was not called as a witness does not appear.

Opinion of the Court.

It is urged, thirdly, that the court erred in excluding the question put to the witness Patterson: “What is the custom of Canadian vessels about carrying a lookout forward ?” The Canadian statute provided that every steamer should, in a fog, mist, or falling snow, go at a moderate speed, and that nothing in the rules prescribed should exonerate any ship, or the owner, or master, or crew thereof from the consequences of any neglect to keep a proper lookout, etc.

In The Farragut, 10 Wall. 334, 338, it was held that the rule laid down by Congress to the same effect intimated that the lookout was one of the ordinary precautions which a careful navigation involved; and Mr. Justice Bradley, delivering the opinion of the court, said : “A lookout is only one of the many precautions which a prudent navigator ought to provide; but it is not indispensable where, from the circumstances of the case, a lookout could not possibly be of any service.” Evidence of a custom to run at full speed in a dense fog, without a lookout, and contrary to the statute, would be clearly inadmissible, and would be of no avail if established.

It is also objected that the protest was admitted in evidence. That protest consists of the statement signed by the master, mates and wheelman, and the declaration of the notary that he protests at the request of the master, as well on his own behalf as on the behalf of the owners, freighters, officers and crew, against all and singular the cause and causes operating as aforesaid, etc., and more especially “ against the storm and heavy winds and gales, high and dangerous seas, fogs and defective compass, experienced on her late voyage;

" all of which is certified by the notary public as being a true copy filed in his office. Undoubtedly the protest of the captain, so long as he was living, would not be evidence on one side or the other, unless to contradict him if he varied from it, and it is said in Arnould on Insurance, (2d ed. by Perkins) Vol. II, p. 1353, that it would not be made evidence as against the assured, if the brokers showed it to the underwriters with other papers relating to the loss on demand of payment. But it was admissible in this case, not on the ground of agency, but because it was made part of the proofs of loss, being directly referred to

Syllabus.

in the proofs in the statement that the vessel ran ashore, "and became a wreck and total loss, and was duly abandoned by the owners to her insurers, as will appear by certified copy of the protest of her master and mariners, heretofore served upon you.” Hence the admission of the proofs of loss involved the admission of the explanatory writing. Ins. Co. v. Newton, 22 Wall. 32.

Finally it is said the court erred in excluding the record in a suit instituted by the Dry Dock Company against the Spartan to enforce a lien for the repairs, because the record was admissible to show the amount due to the Dry Dock Company, and also to show that the steamer was sold to satisfy the decree in that suit, and thereby to establish a constructive acceptance of abandonment by the insurers; but we do not think that it was admissible on either ground. The insurers were not parties to that suit, and the cost of the repairs and the amount of the loss were properly shown by other and competent evidence, while the sale of the vessel had no tendency to prove the acceptance of the abandonment, but rather that the underwriters did not consider themselves bound in the premises. The result is that the judgment of the Circuit Court must be

Affirmed.

IN RE KEMMLER, Petitioner.

ORIGINAL.

No. 13. Original. Argued May 20, 1890. – Decided May 23, 1890.

Ex parte Mirzan, 119 U. S. 584, affirmed and applied.
A writ of error to the highest court of a State is not allowed as of right,

and ought not to be sent out when this court, after hearing, is of opinion that it is apparent upon the face of the record that the issue of the writ

could only result in the affirmance of the judgment. Chapter 489 of the Laws of New York of 1888, which provides that “the

punishment of death must in every case be inflicted by causing to pass through the body of a convict a current of electricity of sufficient intensity to cause death, and the application of such current must be continued until such convict is dead,” is not repugnant to the Constitution of the United States, when applied to a convict who committed the crime for which he was convicted after the act took effect.

Statement of the Case.

On the 5th May, 1890, Mr. Roger M. Sherman filed a petition for an original writ of habeas corpus on behalf of Kemmler, accompanied by a statement in which he said : “This is a motion for an original writ of habeas corpus.

. “The petitioner is under sentence of death in the Northern District of New York, under a statute of New York, which imposes the punishment of death by the passing through his body of a current of electricity sufficient, in the opinion of the warden of the State Prison, to cause his death, which current is to be continued until it kills him; the statute also leaves it to the warden to fix the day and hour of his death, and contains other features which he here asserts are in violation of the Fourteenth Amendment. These features abridge his privileges and immunities as a citizen of the United States and deprive him of his life without due process of law.

“ Judge Wallace has granted a writ, in the emergency, to afford an opportunity to make this application. The case having been passed upon under the state constitution by the Court of Appeals, it is suggested that an original writ here

is proper.

“The petition, an affidavit showing the emergency, the opinion of the Court of Appeals of New York, and the state statute are herewith submitted."

The court at once gave him a hearing, and when he had concluded it announced its judgment.

PER CURIAM. This case is governed by the rule laid down in Ex parte Mirzan, 119 U. S. 584; and inasmuch as the writ of habeas corpus has been granted by the Judge of the United States Circuit Court, and the case is proceeding to a hearing there, we must

Deny the application.

It was then suggested by Mr. JUSTICE BLATCHFORD, to whom an application had been made for a writ of error to the Court of Appeals of the State of New York to bring up Kemmler's case, that the application should be made to the full court, to be heard on the 19th of May, and notice thereof be given to the Attorney General of New York, and a corresponding order was made.

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