
    Paul Williams, Respondent v. William Hays, Appellant.
    
      Negligence — insane charterer of a vessel, liable for its loss through his failure to act — the cause of his insanity is immaterial—secondary.; evidence of a writing not produced.
    
    In an action brought by the assignee of an insurance company to recover moneys paid by such company, on account of the loss of a vessel, alleged to have been caused by the defendant’s negligence, it appeared that the defendant was the charterer of the vessel, although he was at the same time a part owner; that the vessel was near the shore and was unmanageable in consequence of an accident to her rudder, and that she drifted ashore and was lost, and that the defendant did not take such measures to prevent the accident as a reasonable
    . person would have taken; that at the time of the ac'cident -he was insane; that this insanity was either the result of disease or of the remedies which he took, or was brought on by exposure suffered in navigating the vessel, or by a combination of these causes.
    
      Held, that the defendant was liable, even if he had. become insane solely in consequence of the efforts to save the vessel, which he made during the voyage;
    That the defendant was bound to use skill and care, and that the cause of his insanity was immaterial; '
    
      That, where one of two innocent parties.must suffer, the loss must fall upon him whose, acts, or whose failure to act, caused the injury; i
    That where a defendant had a letter, which he claimed contained the written evidence of a contract, it was his duty to produce it, and, if he failed to do so, he could- not complain that paroi evidence of the agreement was given.
    Appeal by the defendant, William Hays, from • a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of tire county , of New York on the 11th day of November, 1895,. upon the verdict of a jury rendered by direction of the court after a trial at the New York Circuit, and also from an order entered in said clerk’s office on the 18th day of November, 1895, denying the defendant’s motion for a new trial made upon the minutes.
    This action was brought by the plaintiff, the assignee of the Phoenix Insurance Company, to recover moneys paid by the said insurance company to the firm of Parsons & Loud, as the owners of a one-sixteenth interest in the brig Emily T. Sheldon, Upon a policy of insurance issued to said firm by the said company.
    The complaint alleged that the loss, on account of which the said moneys were paid by the plaintiff’s assignor to the firm of Parsons & Loud, had been caused solely by the defendant’s negligence, carelessness, misconduct and improper navigation, and sought a recovery for the amount of such money, with interest.
    It appeared upon the trial that the" defendant was a part owner of the vessel in question,, and that at the time of the accident, by an arrangement with his co-owners, he was sailing it on shares ; that he '■ manned the vessel, paid the crew and bought the victuals; ” that out of whatever freight she carried he paid all the charges for loading and unloading, and for commissions on charters or freight, and that he received one-half of the balance.
    It further appeared that the brig started from Boothbay, Maine, ' on the-18th of March, 1886, with a cargo of ice, bound for Annapolis, Maryland.
    ■ That shortly after leaving Boothbay a gale blew up and the vessel was obliged to put out to sea. That the weather continued bad " through the nineteenth and twentieth, ind that on the afternoon of the twentieth the vessel was hove to and remained hove to about twenty-four hours;
    
      The defendant testified that on the morning of the twenty-second, .having been on deck almost continuously for two days, lie went to the cabin and took five three-grain quinine pills, and that he had no recollection of anything that took place until he found himself on shore. It appears that at about twelve o’clock, noon, on the tiventysecond, the defendant came on deck; that he acted strangely and ■different from what was his usual manner ; that shortly after two tug boats spoke the defendant’s vessel, and informed the defendant that the rudder post was broken, and that the vessel was drifting ashore. That the defendant refused their offer to tow the brig out of danger, and that the vessel went ashore about two p. m. of that day and became a total loss.
    The case has been tried before and the principles applicable thereto have been laid down by the Court of Appeals. Upon the trial now under review the court directed a verdict for the plaintiff upon the ground that under the principles thus laid down, assuming that the defendant’s condition had been caused by exhaustion in consequence of his efforts to save the ship and the heavy dose of quinine which he had taken, he was still liable, his act having been such as would be negligent in a sane man.
    
      William W. Goodrich,, for the appellant.
    
      George A. Blade, for the respondent.
   Ingraham, J. :

This case presents questions about which there has been quite a conflict of judicial opinion. The main question, however, has been settled by the Court of Appeals on a former appeal to that court. (See 143 U. Y. 442.) The evidence appears to have been substantially the same upon the last trial as it was when the case was before the Court of Appeals, and by the judgment there but one question was left open, and that was whether or not the defendant would be liable if he had become insane solely in consequence of his efforts to save the vessel during the voyage, the court saying: “ If the defendant had become insane solely in consequence of his efforts to save the vessel during the storm we would have had a different case to deal with. He was not responsible for the storm, and while it was rag-in.g his efforts to save the vessel were tireless and unceasing, and if he thus became mentally and physically incompetent to give the vessel any further care, it might be claimed that his want of care ought not to be attributed to him as a fault.”

Upon this question we agree with ■ the judge below that.it could make no possible difference as affecting the liability of the defendant, applying the principles stated by the Court of Appeals, how he became insane, or what caused the disease or mental condition that prevented him from exercising the care or skill that he was bound to exercise. The Court of Appeals held that upon the evidence the defendant, by his arrangement with his co-owners, was to have the absolute control and management of the vessel, and became her owner pro hap vice y and this relation existing, the defendant was responsible to his 'co-owners for any want of care or skill in the management of the vessel which caused its loss.

On this trial the plaintiff, under a stipulation which allowed either -party to read any of the testimony taken upon the former trial of the action, but against the objection and exception of the defendant, read the testimony of the defendant given upon the former trial, in which he testified as to the contract under which he managed the vessel, and upon which evidence the Court of Appeals based its judgment. That evidence was objected to on the ground that the complaint alleged the nature of the relations that existed .between the defendant and his co-owners, the allegations of which were admitted by the answer. It is quite true that the complaint alleges ■that the defendant was part owner and master of the brig Emily T. Sheldon; that at the time of the loss and stranding of the brig the vessel was under the command of the defendant as master, and that

such loss and stranding were caused wholly' by the negligence, care- ' lessness, misconduct and improper navigation of the defendant, as master¡ and the answer admits that the defendant was part owner and master of the brig, admits that the brig became a total loss, but denies that the said wreck or loss was occasioned by his negligence as master. We do not feel justified, however, in reversing this judgment because of the admission of that testimony, as the pleadings were before the court on the former-appeal, and, notwithstanding. these allegations and admissions,' the court held that the defendant was not the master of the vessel, but stoodtin the relation of a charterer. It must, therefore, have determined -that it was-competent for the court to take evidence as to the relation that did-actually exist between the defendant and his co-owners, and hold! him to the responsibility that such relation created, irrespective of the allegations in the pleadings.

The court then, after determining the relation that existed between the defendant and his co-owners, discussed the question as to the defendant’s liability to them, and what effect his sudden insanity would have upon his liability for a neglect to perform the duty that he owed to his co-owners, and expressly determined that his insanity would be no answer to an action against him based upon his neglect to perform such duty. ' After an examination of the authorities, the court states the result as follows: This vessel- was intrusted to the defendant—not as agent—but, as to the other owners, as charterer, lessee or bailee, and if he caused her destruction by what, in sane persons, would be called willful or negligent conduct, the law holds him responsible. This misfortune must fall upon him, and not upon the other owners of the vessel.” At the conclusion of the opinion the learned judge says : “ To uphold this judgment, we must engraft upon the general rule the exception or qualification that he (an insane person) is not liable for his negligent torts. If the defendan t had taken a torch and fired the vessel, he would have been liable for her destruction, although his act was unconscious and accompanied by no free will. But if he had negligently fired the vessel and thus destroyed her,, being incapable from his mental infirmity from exercising any care,, the claim must be that he would not be liable. Such a distinction is not hinted at in any authority, has no foundation whatever in. principle or reason, and cannot stand with the authorities I have-before cited.”

The principle upon which the defendant’s liability was placed, as-expressly stated by the court, is that,-where one of two innocent parties-must suffer, the loss must fall on the one whose ■ acts caused the injury, rather than upon the one who had no hand in it. And this-principle is here applied to a case where a person was injured, not-by the direct acts of another, but by that other’s failing to exercise the care and skill which he was bound to exercise in consequence of a contract or duty that he had assumed to perform. As was illustrated by the learned judge in his opinion : “ If the defendant had taken a torch and fired the vessel he would have been liable for her destruction, although his act was unconscious- and accompanied by no free will. But if he had negligently fired the vessel and thus destroyed her, being incapable from, his mental infirmity from exer-' cising any care, the claim must be that he would not be liable.” And to extend the analogy somewhat further; if he, being in charge of the - vessel, being bound to exercise due care and' skill to protect her, had known that she was on fire, but had not attempted to extinguish it; he would still be liable for a failure to extinguish it, although prevented by insanity or any other disease from either appreciating the danger or moving so as to be able to extinguish it. That is substantially the position here. This vessel was near the shore,, unmanageable in consequence of an accident to her rudder, and she drifted ashore and was lost, and the defendant is held responsible because he did not take the measures to prevent that accident which it is apparent. that any person in the possession of his faculties would have taken. The court expressly held that it was entirely immaterial, so far as this defendant’s liability was concerned, whether the duty was that imposed upon him by law or arose from the contractual relation that existed between the defendant and his co-owners, the court saying that if the obligation of the defendant to take good care of the vessel, while she was in his possession under his. contract, was an obligation springing out of his contract, and thus a contract obligation, “ such a view of the case would not aid- him. He was sane when he entered into the contract, and his subsequent insanity would furnish no defense to an action for a breach of the contract.”

- It has thus been authoritatively determined that the defendant .was liable to his co-owners for his neglect or want of-skill in allowing this vessel to be lost, and - whether or not the insanity under which he claims to have been suffering was occasioned by his efforts to save the 'vessel during the storm which immediately preceded its loss would make no difference as to his liability. It seems .to us clear that if an insane captain is bound to use the same care and skill in the management of his ship that a sane captain is bound to use, and is liable if he fails to exercise such car.e and skill, upon the principle that where one of two innocent parties must suffer, the loss must fall on the one whose acts caused the injury, regardless- of his intention or of his inability to perform his obligation in consequence of disease, the cause of such disease or insanity becomes entirely immaterial provided that it is not caused by his voluntary act. Upon what principle can an unfortunate individual, suddenly afflicted with a disease, either mental or physical, which prevented him from exercising any of his faculties, be said to be at fault ? . The liability is expressly placed upon the ground that he is not at fault, but is one of two innocent parties upon whom the loss must fall, if this principle applies at all to such a case as this, it must, wé think, throw the responsibility upon the one whose failure to act has caused the injury, irrespective of the condition that caused such failure to act. It is true that in determining what duty a person assumes when placed in a position like that of the defendant, it has been usually assumed that the parties contracted in relation to the limitations under which all human beings exist. All are liable to sudden attacks' of disease which for a longer or shorter time incapacitate a person from doing any labor or performing any duty. And if a person is thus rendered, by what has been called an act of God, incapable of work, his failure to work is not actionable. But it is here held that such a condition does not excuse a person from liability for an injury which was caused by his neglect when suffering from insanity which prevented him from performing the duties and obligations which he had assumed — upon the ground that the injury having to fall upon either the defendant or his co-owners, and it having resulted from the defendant’s failure to do his duty, he, rather than the co-owners, must suffer. The rule applying, it can be no defense to him to say that the incapacity was caused by a disease brought on by his former efforts t.o navigate the vessel, or to perform the duties that he assumed when he took command of the vessel. He was bound to exercise care arid skill in the navigation of the vessel, and whether the disease that caused the insanity was brought on by an attack of malaria, together with the remedies that he took for it, or was brought on by the exposure in navigating the -vessel, together with the remedies that he took for the condition caused by such exposure, is clearly immaterial. In one case as in the other it was his neglecting to do what he was bound to do that caused the loss, and he rather than his co-owners, who neglected no duty, the Court of Appeals has held must be responsible.

We think, therefore, that the judge below was' right in holding that, applying the judgment of the Court of Appeals in this case, the defendant was liable, irrespective of what it was, that caused his condition which prevented him from exercising care and skill in the navigation of • this vessel when such negligence caused her loss.

We do not think that it was error for the court to refuse to strike out the evidence of the captain as to his relation to his. co-owners, on the ground that the contract between the defendant and such co-owners was in writing, and that the • writing was the best evidence. The only evidence of the existence of the writing was that of the captain, when he - said that a letter had been written after an interview- with the agent 'of the other owners, but it did not appear that such letter .contained the contract between the parties, or that all of the terms of the agreement under which the defendant navigated the vessel were contained in it. . It was within the ■defendant’s power to produce the letter, and if he .had wished to ■exclude the paroi evidence of the arrangement under which he navigated the vessel, it was his duty to show clearly that the whole •contract between the parties was in writing.

Upon the whole case we think the trial judge correctly applied the judgment of the Court of Appeals, and that no error was committed that would justify us in reversing the judgment.

The judgment is, therefore, affirmed,, with costs.

Van Brunt, P. ¿., Barrett, Rumsey and ' O’Brien, JJ., concurred.

Judgment affirmed, with costs.  