
    No. 1002.
    Peter Marcy et al v. Merchants’ Mutual Insurance Company.
    The evidence of witnesses, as to what they heard from or were told by others, of orders having been issued, or given by the insurgent military authorities, then in possession of the city, fot the destruction of property prior to, or about the time of the loss of the ship Pettigrew, was properly admitted as part of the res geniec.
    In the margin of the policy of insurance of the steamer Pettigrew, the following clause appears! “ "Warranted by the assured free from all claim for loss or damage, arising from or growing out of the collision of foreign powers, or of our government with others ” At the time this policy was affected, the city of New Orleans, the domicile of the insurance company, was in possession of the insurgents, engaged in armed rebellion against the United States Just prior to the capture of the city by the Federal fleet, the insurgent military commander ordered the burning of all the cotton in and about the city. Under these orders the ship Pettigrew was destroyed by fire: Held That the destruction by fire of the ship Pettigrew, resulted from and grew out of the “ colli* sion ” between the United States and the insurgents, then in arms against its authority; and the loss or* damage growing out of that collision was not a peril insured against.
    A PPEAL from the Sixth District Court of New Orleans, Buplantier, J,
    
      Buchanan <& Gilmore, for plaintiff and appellant.
    A. <& M. Voorhies, for defendants and appellees.
    
      Brief of Buchanan é Gilmore, for plaintiff and appellant.
    
    * * The question before the Court is not what ships were burned by military order on the morning of the arrival of the Federal fleet, but whether the evidence in this record shows that the Pettigrew was among the number of ships so destroyed, and if so, upon whom should the loss fall. Of course the law makes it incumbent on the defendants to make this proof, not by assumption or inference, but by clear and incontrovertible evidence. Have they done so ?
    Now, we say, if the Pettigrew was burned by military order, where is the order? The written order? If you cannot produce the written order by reason of its loss, as you say, (although no proof of any search or effort to obtain it is shown) where is the secondary proof ? The evidence of those who gave it, or of those who saw and read it; or, if verbal, who heard the order given ? The record is as silent as the grave on that subject. The defence has then entirely failed to show that the Pettigrew was destroyed by military command. This being the case, what has the evidence of the other eight witnesses to do with the question? Nothing at all. Their testimony is irrelevant, and as such it was objected to at the trial in the lower Court, and upon its being admitted, a hill of exceptions was reserved. That bill of exceptions is now insisted upon. It is ingeniously argued that the evidence forms part of the res gestae, and from it the Court is to infer a destruction of the Pettigrew by military order; and authorities are quoted in support of the argument. But it will he perceived, by an examination of the authorities, that they fall far short of the mark.
    Take, for instance, the reference to Greenleaf on Evidence, § 108. There, it is said, that on the trial of Lord George Gordon for treason, the cry of the mob, who accompanied the prisoner ■ on his enterprise, was received in evidence as forming part of the res gestee, and showing the character of the principal fact.
    But did the persons who burned the Pettigrew accompany General Lovell ? So far from it, the witness who relates the occurrence, tells us. at the same time, that “ there were no military in the vicinity,” and that “ I did not see any aid of General Lovell on that day about the levee.” The other cases referred to are equally inapplicable. There the conversations bore directly upon the main fact, and tended to illustrate the motives and intentions of the actors.
    There is then not that connection between the main fact, the burning of the Pettigrew, and the occurrences spoken of by the witnesses necessary to bring the evidence within the rule invoked by the defendants.
    But as our adversary refers to historical facts in connection with the events of that period, we may likewise be permitted to assert that there was no order to burn ships.
    There was an order to burn cotton wherever found, whether on shipboard or in the warehouses. If ships were burned, it was because they were loaded with cotton, or were supposed to have cotton on board.
    The only witness that speaks with positive knowledge on that subject is Col. DePeriet, who, on his cross-examination, says: “ The order was to burn the cotton either in the presses or in the harbor. The order was special as to cotton, wherever it was. There were no orders to burn ships •that had no cotton on board. The only ship I saw there had a load of cotton.” And again, on his direct examination: “The order of General Lovell was verbal, to burn the cotton wherever it was, The order of the governor was in writing, to the same effect. I have not the written order.”
    Col. DePeriet, it will be seen, commanded the Second Louisiana Regiment, and the order was transmitted to him. It was his duty to see it executed; and of course his evidence as to its character or purport, is more to be relied upon than the loose, vague and contradictory statements of subordinate military men, or of citizens who did not see it, and whose only knowledge of its contents is derived from rumor or hearsay. IJis is the only evidence on that subject deserving of attention.
    There was then no order emanating from Confederate or State authority, to burn vessels generally; and the defendants have absolutely and entirely failed to show any order, either written or verbal, to burn the Pettigrew. The evidence shows that she was destroyed by persons, who, under the circumstances, and whatever may have been their motives, must be regarded as incendiaries; and the loss, being one covered by the policy,, must be borne by the defendants. Angelí on Pire Insurance, p. 165, $ 134-8. * * *
    
      Brief of A. & M. Voorhies, for defendants and appellees.
    
    * * In the first bill, objection is raised against the admissibility of testimony to prove that “the ship, S. E. Pettigrew, had been burnt by order of the military, then in possession of the city of New Orleans, to the reception of which the plaintiff objected, on the ground that the same was irrelevant, and that the destruction of the property insured by third parties in no wise authorized or sanctioned by the plaintiff, was no defence to the action upon the policy.
    This objection goes to the effect, and not to the admissibility of the testimony; and, if correct in law, defeats the special defence that the loss Of the ship was the result of a war risk, which had been reserved in the policy of insurance as a special warranty, assumed by the plaintiff himself.
    The Court, therefore, properly admitted the evidence to prove a war risk, and overruled the objections to its admissibility.
    The other bill of exception is found at page 49 of the record.
    The burden of the complaint is, that the statements of several witnesses were improperly received,’being hearsay declarations “as to what they heard from or were told by others, of military orders having been issued or given by the military authorities in possession of the city of New Orleans, for the destruction of property prior to or about the time of the loss of the ship S. E. Pettigrew; and also to all statements of facts by all said witnesses, or by either of them, which were not of their own personal and direct knowledge, upon the ground that such statements were mere hearsay, not the least evidence, and too vague and unreliable to serve the purposes of judicial investigation, or to control the rights of the parties to this suit.”
    Undoubtedly some of the witnesses did state what was said on the spot, where, and at the time when the Pettigrew and other vessels were being destroyed by fire. But, as the evidence was part of the res gestee, and, consequently, not strictly hearsay, the District Judge concluded that the objection went to the effect, and not to the admissibility of the testimony.
    It is a historical fact, of which the Court will take judicial cognizance, that the Federal fleet had passed Forts St. Phillip and Jackson on the 25th day of April, 1862, and was on its way up the river to capture the city of New Orleans, then in the possession of the Louisiana State Government and of the Confederate authorities; and that the latter, in anticipation of this result, caused vessels, boats, docks and cotton to be fired, to prevent them (as was the invariable practice during the war) from falling into the hands of the Federal fleet and army. It was on this occasion that the Pettigrew was destroyed by fire, as well as several other ships or boats, some being loaded with cotton, while others were empty. The testimony introduced by the defendant merely corroborates this fact, and shows conclusively that these ships were destroyed to prevent their capture by the Federal fleet; that the military, including State and Confederate troops, were on the spot managing this affair; that Gen. Lovell and staff were there, besides other officers belonging to his command; that there were all along the river excited assemblages of the people, with whom at times the military mixed promiscuously; and finally, (besides the fact shown that orders were issued to perform this work) the general and his subordinates were present superintending the whole. Indeed, the Judge a quo knew something personally about these occurrences; like the Trojan chief, he might have said appropriately: “Quorum pars magna fui,” since he had been officiating on that occasion in the capacity of a so-called Confederate officer, and hence, was well prepared on the trial below to better appreciate the facts.
    
      It was while the ships, clocks, boats and cotton were burning, that were made the statements which are objected to as being hearsay. These statements were not only contemporaneous with the main fact under consideration, but were so intimately connected with it as to determine its character. They were part of the res gestee, and cannot be severed from the main fact. As such they are original evidence, and form, an exception to the rule decreeing the inadmissibility of hearsay testimony. See Greenleaf Ev. § 108, eisep\ Marignyv. Union Bank, 5 B. 354; Laeaze v, Sejour, 10 E. 444; Duperrier v. Daulerive, 12 An. 664. * *
    
   Tatjakebbo, J.

The plaintiffs in this case sue on a contract of insurance. They effected insurance with the defendants to the extent of 87,000, on their interest in the ship S. E. Pettigrew, which was valued in the contract at 840,000. The ship was insured from 27th of July to 27th of August, 1861. This insurance was renewed monthly up to March 27th, 1862, when it was again renewed for the period of one month, ending on the 27th of April, 1862. It appears that on the 25th of April, two days before the policy expired, the ship was destroyed by fire in the port of New Orleans. The insurers are sued for indemnity for the loss. The defence is, that the ¡(vessel was not lost by any of the perils insured against, and that the company is not bound to make good the alleged loss. The defendants had judgment in their favor in the Court below, and the plaintiffs prosecute this appeal.

In the margin of the policy of insurance, the following clause appears: “ Warranted by the assured free from all claim for loss or damage arising from or growing out of the collision of foreign powers, or of our government with others.”

It is under this condition of the contract, that defendant claims exemption from liability. They allege, in their answer, that the ship Pettigrew was destroyed by fire at the time a fleet of vessels of war of the United States was entering the port of New Orleans. That the burning of the vessel was by order of the military authorities then in possession of the city, and about to abandon it; that the act was authorized by the States then at war with the United States. It will be proper here to notice a bill of exceptions taken by the plaintiffs to the admission of statements made by several witnesses, as to what they heard from or were told by others, of orders having been issued or given by the military authorities then in possession of the city, for the destruction of property prior to or about the time of the loss of the ship Pettigrew.

The Court, we think, properly admitted the evidence as part of the res gestee. One of these witnesses (Brown) testified that he “ saw a mob go on board the Pettigrew, and fire her. There was no military in the vicinity. I was on the wharf; the crowd said they were going to fire all the ships at the wharves. They gave no reasons for this. They fired one of my ships. ”

Tobleman, a witness, stated: “I was stationed at the foot of Clouet street, as captain of a company. I saw General Lovell with his staff. He asked me where were my men? I answered they were busy at work. He told me, that inasmuch as the Federal fleet was coming up, to burn all the cotton and ships as soon as possible.”

G. D. Eeriet, a witness, deposed that lie was colonel of the Second Louisiana Regiment; that the orders to burn ships, and cotton in the presses, were transmitted to him; that there was'an order first from the Governor and one from General Lovell, carried by an aide-de-camp. The order was positive, to burn all the cotton in the presses and in the harbor. “ The order of General Lovell, to burn the cotton wherever it was, was verbal;”the order of the Governor was in writing, to the same effect. The testimony of many witnesses concurs in establishing the fact that at the same time the Pettigrew was burned a number of other vessels, .and a large amount of cotton were burned at New Orleans. At that time excitement and consternation pervaded the city. A fleet of United States vessels of war had passed the forts below, and was advancing up the river. The purpose of the insurgent officers about to evacuate the city, it is satisfactorily shown, was to destroy all the cotton in New Orleans, wherever found, whether in the cotton-presses or on shipboard. It is matter of history, that at that time it was the policy of the so-called Confederate authorities to destroy cotton everywhere within reach of the United States forces. That there was an order to burn ships that had cotton on board, there cannot be a remaining doubt. The evidence, -we think, conclusive, in favor of the defendants. That the destruction by fire of the ship Pettigrew, resulted from and grew out of the “collision” between the United States and the insurgent power then in arms against its authority, is satisfactorily established. It is plain, from the contract of insurance, that “ loss or damage arising from or growing out of” that collision, was not a peril insured against.

It is therefore ordered, adjudged and decreed, that the judgment of the. District Court be affirmed, with costs in both courts.

Rehearing refused.  