summated for either; that, if otherwise, the [ fact, as claimed by the plaintiff, was a quespolicy of Clottie Bilodeau became void by reason tion to be determined by the jury under inof the nonpayment of assessments; and that the statute provision for the cash payment could be structions which, we have just said, were waived only by proper action of the insurer, and correct. The defense of fraudulent overvalnot by any act of its agent, Mr. Millett, unless uation was also in that same realm of fact. he were expressly authorized so to do by cor- After a careful and patient study of the porate authority." cases, we are unable to say that in any of its findings there was such manifest error as to require the verdicts to be set aside. Exceptions overruled. Motion overruled. Thus it will be seen that the defenses relating to payment by the Maine Central Railroad Company, and the negligence of that company in causing the fire, were practically abandoned. The plaintiffs concede that the policy, in the case of Alexander Bilodeau, had not been paid for, also that, in the case of Clottie Bilodeau, the cash payment and certain assessments had not been paid, but urge that the contract requirements in these particulars were waived by the defendants. They deny that in either case there was a fraudulent overvaluation of the property destroyed, and deny that the policies were void. ments In their turn the defendants deny waiver P. S. 2023, applying only to civil actions, as claimed by the plaintiffs. Neither the the proceedings of a justice, when a party has and giving a county court a similar power over bill of exceptions nor the argument of coun- been deprived of his day in court by fraud, ac sel contains complaint regarding instructions cident, or mistake, that the county court might of the presiding justice as to what consti- exercise over its own proceedings, is not made applicable to municipal courts by Laws 1915, tutes waiver in law; but they urge that the No. 91, § 4, providing that each municipal court waiver was not made, as matter of fact, and, shall have the same powers "concerning its judgif made at all, was not made by competent section 8, which relates only to criminal cases. as the county court,' nor by authority and except to the instructions given 2. JUSTICES OF THE PEACE 141(1)—APPEAL upon this point. In support of these conten-JURISDICTION OF CITY Court. tions the defendants cite numerous cases The words "The procedure * from other jurisdictions, as well as text-be the same as is now provided by law in case writers, to the effect that the waiver sug- No. 91, § 17, relating to power of city courts, of appeals to the county court" in Laws 1915, gested could only be done by corporate au- have reference to the ordinary course of procethority. dure, and do not give the city courts jurisdiction of the remedy given by P. S. 2023, which is applicable to county courts exclusively. [1] Our Legislature has declared that: "The agents of all domestic companies shall be regarded as in the place of the company in all respects regarding any insurance effected by them. The company is bound by their knowledge of the risk and of all matters connected therewith. Omissions and misdescriptions known to the agent shall be regarded as known by the company, and waived by it as if noted in the policy." R. S. c. 53, § 119. shall Exceptions from City Court of Burlington; C. S. Palmer, Judge. Action in justice court by the New York Moline Plow Company against B. H. Maeck. Judgment for defendant. From a pro forma judgment of the city court of the city of Burlington dismissing a petition for leave to enter an appeal, plaintiff excepts. Affirmed. Argued before WATSON, C. J., and HASELTON, POWERS, TAYLOR, and MILES, JJ. titionee. That the acts of an agent may constitute a waiver of the terms of the policy, and that the company is bound by such waiver, has been recently held by this court in Frye v. Equitable Life Insurance Co., 111 Me. 287, 89 Max L. Powell, of Burlington, for petiAtl. 57. Upon this question of waiver by an tioner. M. G. Leary, of Burlington, for peagent the defendants cite, and with some confidence rely upon, Lewis v. Monmouth Mutual Fire Ins. Co., 52 Me. 497, and Swett v. Citizens' Relief Association, 78 Me. 541, 7 Atl. 394. The former case was decided four years before the enactment of the statute just quoted. The latter case involved the power of an agent to ratify a contract which was invalid in its inception. Neither case is applicable to the question now under consideration. The instructions made the subject of exceptions in the present case are in harmony with our statute law and the decisions of this court. WATSON, C. J. The plaintiff, on December 26, 1916, filed its petition in Burlington city court, praying for leave to enter an appeal from the judgment of a justice of the peace, relying upon section 2023 of the Public Statutes for thus bringing its petition. The city court dismissed the petition on the ground that it had no jurisdiction of the subject-matter, to which the plaintiff excepted. The section of the statutes mentioned is what is known as "the fraud, accident, and mistake statute," and the power there given [2, 3] As to whether there was a waiver in is exclusively to the county courts. The For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes, 2023, is so changed as to give the powers plaintiff, however, contends that under Act, effect on February 1, 1918, the law of P. S. of 1915, No. 91, municipal and city courts are impliedly given the same powers when by law the appeal is to be taken to such a court, and our attention is called to various provisions of the act in support of this contention. We notice these provisions below, in their order. VERMONT RY. CO. (92 Vt. 1) [1] By section 4, each municipal and city PORTER SCREEN MFG. CO. v. CENTRAL court shall have the same powers and duties concerning its judgments, records, and proceedings as the county court. But the (Supreme Court of Vermont. Chittenden. Oct. provisions of P. S. 2023, give a county court 2, 1917.) a similar power over the proceedings of a 1. CARRIERS 119-"ACT OF GOD"-FLOOD. justice, when a party has been deprived of An unprecedented flood overflowing a railhis day in court by fraud, accident, or mis-road yard was within a provision of a bill of lading exempting the railroad from liability for any take, that the county court might exercise loss or damage caused by the "act of God." over its own proceedings. Mosseaux v. Brigham, 19 Vt. 457. Section 8 relates to prosecutions of a criminal nature before a justice, exceeding his jurisdiction to try and determine. These provisions carry with them impliedly no powers similar to those granted to county courts under the fraud, accident, and mistake statute; for the provisions of that statute apply only to civil actions. Tyler v. State, 63 Vt. 300, 21 Atl. 611. [2] By section 17, in all civil causes before a justice, where theretofore an appeal could be had to the county court, such appeal is to be taken to a municipal or city court, if there be such court within the county, or to the county court as now provided by law, except, etc. "The procedure in such cases shall be the same as is now provided by law in case of appeals to the county court." The language in the sentence quoted indicates that the words "procedure in such cases" have reference to the ordinary course to be followed in the cases themselves. They do not have reference to the extraordinary remedy had only by statute, and instituted not to govern the ordinary procedure in the action, but to enable a party to have the benefit of such procedure, of which, without fault on his part, he has been deprived by fraud, accident or mistake. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Act of God.] 2. APPEAL AND ERROR 241 REVIEW In an action against a railroad for the de- Such rule and regulation was notice to the carrier, its agents and servants in charge of freight traffic that if a car loaded with unslaked lime was entered by water it might take fire, the contents as "lime," without specifying wheththough the accompanying running slip described er it was slaked or unslaked. 5. CARRIERS 136-Loss oF GOODS-ACTION -QUESTION FOR JURY. In an action for the destruction of a car of screens by fire communicated from a car containing lime which had been fired by a flood in a railroad yard, held on the evidence that whether the track on which the car of screens had been placed was used exclusively as a repair track was a question for the jury. 6. EVIDENCE 69-PRESUMPTION. By section 27 of the Laws of 1915, all acts and parts of acts inconsistent with that act are repealed as to all prosecutions and actions instituted after the act takes effect. The rule that everything is presumed to be We have already said enough to show that rightly and duly performed, until the contrary is shown, did not apply. no inconsistency exists between the two stat-7. CARRIERS 119-Loss of Goods—“ACT OF utes in the respect under consideration, and consequently the force and effect of the earlier are not changed by the provisions of the later one. Our attention is also called to section 297 of the charter of the city of Burlington. But that section contains nothing not already covered by our consideration of the case. It may not be out of place to say that evidently the last Legislature took the same view of the matter, as expressed above; for in the new revision of the statutes, to take GOD"-PROXIMATE CAUSE. To be a defense to an action against a carrier for the destruction of goods under a bill of lading excepting liability for damage from an act of God, the damages suffered must have been proximately, directly, and exclusively due to natural causes which could not have been prevented by any amount of foresight and care reasonably to be expected, and without human intervention. 8. CARRIERS 119-Loss OF GOODS-ACT OF GOD-CONCURRENT NEGLIGENCE. clusively to natural causes, and where the carrier's negligence actively co-operated with the operation of the natural causes, the injury was Where destruction of goods was not due ex not, in a legal sense, an act of God, so that where the destruction of goods by an unprecedented flood might have been avoided by human prudence and foresight reasonably to be expected from the carrier, but not exercised by it, it would be liable. 9. CARRIERS 133-Loss oF GOODS-NEGLIGENCE EVIDENCE. was proper, where it was not applicable to the evidence. Exceptions from Chittenden County Court; Willard W. Miles, Judge. Ver Action on the case by the Porter Screen Manufacturing Company against the Central In an action against a carrier for the de- Vermont Railway Company for negligence in struction of a car of screens from fire communi- failing to deliver a carload of screens. cated from a car of unslaked lime fired by an un- dict and judgment for plaintiff, and defendprecedented flood in a railroad yard, the predicant excepts. Judgment reversed, and cause tions made by the weather forecaster, the knowlremanded. edge of the carrier's freight agent and yardmaster as to previous floods, the conditions as they saw them on the day before, the public means SELTON, POWERS, and TAYLOR, JJ. for ascertaining probabilities as to flood conditions in that vicinity, and whether resort thereto would reasonably be expected, were matters to be considered on the question of the carrier's proximate negligence. 10. CARRIERS 136-Loss oF GOODS-ACT OF TICLE. In such action, parts of an article in a daily newspaper published in a nearby city to the effect that the river would rise nearly 16 feet, stating its height there, and that it would continue to rise, and stating the weather observer's forecast and the basis thereof, was inadmissible to show what information was available to the defendant carrier as bearing on the question whether it ought to have known or to have inquired as to flood conditions in order to have protected the property, without a showing that the article had been seen and read by some of the carrier's agents. 12. NOTICE 5 NEWSPAPER ARTICLE. Such newspaper article did not in law have the effect of constructive notice, and at most could be only actual notice. 13. APPEAL AND ERROR ERROR-EVIDENCE. CONSTRUCTIVE NOTICE 1050(1)-HARMLESS Argued before WATSON, C. J., and HA Ezra M. Horton, of Burlington, for plaintiff. John W. Redmond, of Newport, for defendant. WATSON, C. J. Although the trial of this case was by jury, the material facts were largely established by agreement of parties. As will be seen, there was really but one disputed primary question of fact submitted to the jury. It appeared from the agreed facts that on March 24, 1913, the plaintiff, at Winooski, this state, loaded Grand Trunk car No. 9447 (hereinafter designated as "car 9447") with screen doors and window screens, valued at $824.13, and the car so loaded was then received by the Central Vermont Railway Company for transportation by it and connecting carriers to the Eastern District Terminal in Brooklyn in the state of New York, in accordance with the bill of lading delivered by the defendant to the plaintiff; that in the course of such transportation the car left Winooski on March 25, 1913, was hauled over the lines of the successive carriers to Troy, N. Y., where it arrived on March 27th, and by the Delaware & Hudson Railroad was there delivered to its connecting carrier, the New York Central & Hudson River Railroad Company (called in this case the "N. Y. C.") at 12:15 p. m. of that day, by which it was then and there accepted for transportation over its line to the place of destination; that after thus receiving the car, the latter carrier placed it in its freight yard at Adams street station in Troy, on the track designated as track "No. 2," on the blueprint marked "Plaintiff's Exhibit D," at a point about 200 feet south of Adams street. The exact time in the afternoon when this car was thus placed on track No. 2 is a little in doubt; some of the evidence tending to show it to have been between 12:30 and 1, and some, that it was between 1:30 and 2. It further appeared from the agreed facts that L. & N. car No. 94242 (hereinafter designated as "car 94242"), loaded at Chazy, N. Y., with unslaked lime, and destined for Worcester, Mass., was delivered by the Delaware & Hudson RailThere was no error in the failure to charge road to the N. Y. C. at Troy at 1:10 p. m. dn that in determining whether the carrier acted March 26, 1913, and later in the same day it prudently in respect to the safety of the goods, a jury should consider its responsibility to its was placed by the latter company in its said other patrons who had property in its yards yard on the track designated as "No. 3," on In an action for the destruction of a car of screens by fire from a car of unslaked lime fired in a railroad yard by an unprecedented flood, testimony of the weather forecaster as to the custom of the Weather Bureau as to giving publicity to its forecasts by daily weather maps mailed to public places, or by information telephoned to newspapers and to business houses, afforded no reasonable inference as to the carrier's negligence in not protecting the property, and its admission was harmful error, especially in view of the carrier's custom of telephoning to the weather bureau for information as to flood probabilities. 14. TRIAL 296(7) — REQUESTED INSTRUCTION-GIVEN INSTRUCTIONS. The court's refusal to charge that the burden was on the plaintiff to show that the carrier's negligence mingled with the act of God as a proximate cause of the destruction was not erroneous, where the court had fully charged on 15. TRIAL 252(7)-INSTRUCTIONS-APPLICABILITY TO EVIDENCE. that matter. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes the blueprint, Exhibit D, this track being the next parallel track west of No. 2 mentioned above. When car 9447 was placed on the latter track, it stood opposite the car of lime, and taking into account the overhang the two cars were about 3 feet apart, thus remaining until they were destroyed by fire as stated below. The elevation of top of rail of track No. 3, where the car of lime stood, is 21.62 feet above sea level, and top of rail of track No. 2, where the other car stood, is 21.73 feet above sea level. The rails are 5 inches high, and the floor of a freight car is substantially 4 feet above top of rails. The yard is somewhat descending from the place of these cars west toward the river. East and south from the same place it is more or less ascending. or delay caused by the act of God, the public enemy," etc. [2] At the close of the evidence, the defend. ant moved for a directed verdict, assigning as grounds therefor (stated in condensed and comprehensive form) that on all the evi dence (1) the plaintiff is not entitled to recover; (2) the sole proximate cause of the destruction of the property in question was an act of God; (3) no negligence on the part of either the defendant or the N. Y. C. concurred with the act of God as a proximate cause of the destruction of such property. The motion was overruled, and exception saved. The first ground of the motion fails to point out any precise basis upon which it is predicated, and is therefore too general for consideration. Castonguay v. Grand Trunk Ry., 91 Vt. -, 100 Atl. 908. The other two grounds are considered together. [1] It appeared from the evidence that the waters of the Hudson river above Troy rose to a great height, creating an unprecedented flood at the latter place, and overflowing Ad- At the time in question, Leland Wadsworth ams street yard to such a depth that they was freight agent for the N. Y. C. at Troy, entered the said carload of lime, slaked the having general supervision of the freight lime, thereby causing heat which set fire to traffic, including the freight yard of the comthe car. This fire was communicated to car pany at that place, and including also the 9447, destroying it and all its contents. The movement of trains in the yard. He resided evidence showed that the flood there (being at Troy. At that time Charles A. Lloyd was one free from ice) was unparalleled in histo- day yardmaster of the Adams street yard, ry, and beyond question of such magnitude as had charge of the yard, and direct charge and to be an act of God, within the meaning of control of the movement of trains in and out that term; yet the plaintiff contended that and about the yard under the supervision of the defendant was not entitled to the benefit the freight agent. At the same time Patrick of immunity from responsibility as is usual J. McCormick was night yardmaster; his in cases coming under the term "act of God," duties at night and his authority being simifor the reason that the evidence showed neg-lar to those of Lloyd in the daytime. The ligence on the part of the N. Y. C. in not ex-yardınaster knows where every car is located ercising the requisite degree of care and dili- in the yard. There was a "running slip" acgence to protect the plaintiff's property from companying car 94242, showing the car numsuch destruction, after the railroad company ber, initial, destination, contents, and conforesaw, or in the exercise of due care should signee, which paper came into the freight have foreseen, with reasonable probability, agent's office in Troy, in the usual way, inthe happening of such high water as was tended to convey to such agent the informalikely to subject it to extraordinary dangers, tion specified on it, about noon of March 26th. as the car was located with reference to the Indeed, in connection with the plaintiff's incar loaded with unslaked lime. On the oth- troduction of evidence showing this, counsel er hand, the defendant claimed that, by the for defendant conceded that there was no tendency of the evidence, the proximate cause question about the facts of this matter; that of the destruction of the property was the the N. Y. C. knew it had a carload of lime unprecedented flood, without any contribut- on that day. Knowing this, and further ing negligence on the part of the carrier. It knowing what car it was, and where it was was agreed by the parties that in all respects located on track No. 3, the railroad company the relationship between defendant and the knew that this car was still at the same N. Y. C. was such that under the federal place the next day, when car 9447 was restatute known as the "Act to regulate com-ceived and placed directly opposite on track merce" (Act Cong. Feb. 4, 1887, c. 104, 24 No. 2, so that the two cars were within 3 feet Stat. 379), and the amendments thereto the of each other. former, as the initial carrier, is liable to the [3, 4] The American Railway Association plaintiff for any damage to the shipment rules and the Interstate Commerce Commismentioned, proximately caused by the negli- sion regulations for the transportation of gence of the latter, as connecting carrier. dangerous articles other than explosives, beThe bill of lading, section 1, states that the fore and at the time in question, state that: carrier or party in possession of the proper. "Carload lots of crude camphor, cotton, ty therein described shall be liable for any or other articles liable to be ignited by loss thereof or damage thereto, except that sparks, as well as unslaked lime and calcium carbide, both of which must be protected from wano carrier or party in possession "shall be ter, should, when practicable, be loaded in tight liable for any loss thereof or damage thereto | cars, with doors stripped, and, when practica * ble, these cars must not be placed next to cars placarded 'Explosives.' height of the water above sea level on the 27th at 8 a. m., and at intervals of half an The freight agent testified to receiving a hour thereafter until 11:30 p. m.; that at copy of the rules and regulations mentioned, Troy the average would be from 5 to 7 feet and to knowing about the foregoing rule, higher than at Albany. The evidence further but that he did not know that if water en- tended to show that the water began to come tered the carload of lime and slaked the into the Adams street yard in the forenoon lime it would set fire to the car; that a set of of the 27th, rising gradually and continually. those regulations was also transmitted to the Whether it came up to or over track No. 2 yardmasters, and that schools were held for at the time when car 9447 was placed upon the instruction of them and their crews in it is not quite certain; but the evidence the prudent handling of explosives and other tended to show that at about 2:30 p. m. it dangerous matters; that the rule did not had so risen as to be 5 inches deep over the convey to him the idea that the writer of it rails; that then it was impossible to get into meant that lime, when slaking, was likely to that track, because of timbers floating about burn a car, but conveyed to his mind only in the water. At 6:30 p. m. the water was the idea that if the lime became wet it would 15 inches over the rails, later increasing to be spoiled. This rule was received in evi- about 5 feet. There was no evidence that the dence subject to defendant's exception on the N. Y. C., or any of its agents or servants, ground of immateriality. But we think it did or attempted to do anything by way of cannot be said to be immaterial. The rule moving car 9447 from where it stood on is to be understood in the light of common track No. 2 to a place of safety after the knowledge that unslaked lime is slaked by water began to come into the yard. It apthe action of water upon it, and if the quan-peared that Freight Agent Wadsworth and tity be large, much heat is produced and Yardmaster Lloyd were about their duties perhaps fire. Considering the classification at that yard, as usual, throughout the day made (in the rule) for transportation purpos- of the 27th, observed and knew of the rise es, the imperative direction to protect un- of water in the river, also in the freight slaked lime from water, and the provision, ap- yard after it began to come in there. plicable alike to cars loaded with such lime and to those loaded with articles liable to be ignited by sparks, as to not placing the cars next to cars loaded with explosives, it may well besaid that, reasonably understood, the rule is notice to a common carrier, its agents and servants having freight traffic in charge, that if a car, loaded with unslaked lime, be entered by water, the slaking of the lime caused thereby is liable to result in firing the car. The freight agent testified, however, that the "running slip" accompanying car 94242 stated its contents to be "lime," without specifying whether it was slaked or unslaked, and consequently he did not know the lime to be of the latter character; that there is a commodity known as "slaked lime," and also one known as "unslaked lime." But knowing that the lime might be of either character, one a dangerous commodity in transportation, and the other not, he was put upon inquiry regarding it, and will be taken to have had full knowledge in this respect. [5, 6] The evidence tended to show that track No. 3 was a repair track upon which cars in a badly broken condition were placed for repairs; that the car containing the lime was in such condition and consequently was placed upon that track, and that principally because of such broken condition, it could not be taken therefrom before the water had risen so high as in itself to prevent so doing. There was no evidence upon which it can be said that the putting of this car there was negligence on the part of any one. Some of the evidence tended to show that track No. 2 was exclusively used as a repair track, and upon it were placed cars slightly damaged, while other evidence tended to show that it was a sort of miscellaneous track, used to put any cars on if need be. There was no direct evidence that car 9447 was defective when put upon that track; but the fact of its being placed there is urged as showing that it needed repairs, and this upon the principle that everything The ice had gone out of the river. The is presumed to be rightly and duly performed flood was caused by rainfall which covered a until the contrary is shown, citing Bank of period from March 21st to March 28th, in- United States v. Dandridge, 12 Wheat. 64, clusive. During that period the precipitation 6 L. Ed. 552, and other cases. Yet this rule in the watershed of the Hudson river above of presumption presupposes the two facts Troy was approximately 51⁄2 inches. The upon which it must here be based, namely, evidence tended to show that at Troy, at 7 that track No. 2 was used exclusively as a in the morning of the 26th, the height of the repair track, and that car 9447 was placed water in the river was 17.7 feet above sea lev- thereon, to be permanently fixed. The secel; that after the 26th the observer was not ond of these facts stands as conceded; but able to get near enough to the gage to read the existence of the first (the major premise) it, the water was so high; that on the 28th was of necessity a question to be determined the water at Troy rose to the height of 29.4 by the jury upon evidence the tendency of feet; that the records of the weather bureau which was not all one way. It follows that at Albany, 7 miles from Troy, showed the in disposing of the exception to the overrul |